(2) Written questions under paragraph (1) – (a) may be put once only;
(b) must be put within 28 days of service of the expert’s report; and
(c) must be for the purpose only of clarification of the report,
unless in any case –
(i) the court gives permission; or (ii) the other party agrees.
(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.
(4) Where –
(a) a party has put a written question to an expert instructed by another party; and
(b) the expert does not answer that question, the court may make one or both of the following orders in relation to the party who instructed the expert –
(i) that the party may not rely on the evidence of that expert; or
(ii) that the party may not recover the fees and expenses of that expert from any other party.
Contents of report 35.10
(1) An expert’s report must comply with the requirements set out in Practice Direction 35.
(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.
(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
(4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions –
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.
Finally, just to remind you of your obligation, an expert’s report must be verified by a statement of truth in the following form:
‘I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.’
Please also refer to The Practice Direction supplement to CPR Part 35, through the following link:
https://www.justice.gov.uk/courts/procedure-rules/ civil/rules/part35/pd_part35
We should consider these principles when we are writing our survey reports. They should be factual, concise and unbiased. Also, if we refer to some other material it should be well-referenced and any other material that may be verbally received must be clearly defined. If you are unable to survey a particular item, you must state why, as it could be considered that you have simply missed it and therefore your report would ‘not be complete’. If you ever have to defend one of your survey reports, the content will have considerable scrutiny, you must be able to defend the content and any opinions that you have stated.
If you are not an expert in a subject, then don’t say that you are. It is much better to say that you consider additional expert involvement is required to provide a more accurate and conclusive report. An example of this for Hull and Machinery Surveys may be Fuel Quality Claims that have reportedly led to main engine damage. You probably do not have your own laboratory to analyze the fuel, so you will need to rely on a reputable lab to prepare a report on the fuel that you may witness being sampled on the vessel. You then need to refer to the Labs fuel quality report as part of your Machinery Damage Report. You may also need to have other expert input such as metallurgy analysis of any broken engine components. As well as maintenance records from the ship.
Be aware that any material you gather to support your survey report is ‘discoverable’ and may be called on by the opposing party, so make sure that you keep good records and notes on where and when you receive information and from whom.
Article by Peter Broad, President of IIMS.
THE REPORT | DEC 2023 | ISSUE 106 | 107
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