CPR 35 Written Questions: What Can They Properly Ask a Building Surveying Expert?
CPR 35 Written Questions: What Can They Properly Ask a Building Surveying Expert?
After an expert witness report has been served, another party may disagree with its findings or require parts of it to be explained. CPR 35.6 provides a procedure for putting written questions to the expert.
These questions are intended to clarify the report. They are not a second set of instructions, an opportunity to introduce an entirely new case or a substitute for cross-examination.
What are the basic rules?
Unless the court permits otherwise or the parties agree, written questions must:
· be proportionate;
· be submitted once only;
· be submitted within 28 days of service of the report; and
· be asked solely for clarification of the report.
Questions can be put to an expert instructed by another party or to a single joint expert. The expert’s answers are treated as part of the original report. They are therefore formal expert evidence, rather than informal correspondence between the expert and the parties. Where questions are sent directly to an expert, they must also be copied to the other parties. The party instructing the expert is normally responsible for paying the expert’s reasonable fee for preparing the answers, subject to any subsequent decision about costs.
What can properly be clarified?
Proper questions should relate to something contained in the report that is unclear, incomplete or apparently inconsistent. They might reasonably ask the expert to:
· explain the technical basis of an opinion;
· identify the observations supporting a conclusion;
· clarify terminology or measurements;
· explain how a probable cause was identified;
· address an apparent inconsistency between two sections;
· explain assumptions used when estimating remedial costs;
· distinguish between observed defects and reported problems;
· clarify the effect of restricted access or missing documents; or
· explain whether a reasonable alternative cause was considered.
For example, where a report attributes dampness to defective external detailing, a proper question might ask the expert to identify the inspection findings supporting that opinion. Similarly, if a repair cost appears to include several separate operations, the expert may properly be asked to explain what has been allowed for within the estimate.
What are written questions not intended to do?
Written questions should not be used to conduct lengthy cross-examination or pressure an expert into supporting one party’s case. Questions may fall outside the normal purpose of CPR 35.6 where they attempt to:
· introduce defects or allegations not addressed in the report;
· require an entirely new technical investigation;
· demand opinions on documents that were not previously supplied;
· repeat the same challenge in several different forms;
· require the expert to determine legal liability;
· question matters outside the expert’s professional discipline;
· use argumentative statements disguised as questions; or
· force the expert to withdraw an opinion without identifying any technical basis for doing so.
A building surveying expert can provide evidence about physical condition, likely causation, necessary remedial works and reasonable costs. The expert does not decide the ultimate questions of legal breach or liability. Those matters remain for the court.
Can written questions challenge an expert’s opinion?
A question can ask an expert to explain or clarify an opinion. It can also draw attention to relevant evidence or an apparent error. However, disagreement alone does not require the expert to change their conclusion. The expert must consider the question objectively and decide whether it affects the evidence or reasoning. If a genuine mistake is identified, it should be corrected clearly. If the original opinion remains unchanged, the expert should explain why. The expert’s duty is to assist the court, not to defend a particular party’s position.
How should an expert respond?
Answers should normally follow the numbering used in the questions and respond directly to each point. Where appropriate, the expert can refer back to the relevant paragraphs, photographs, measurements or schedules within the report. The expert should also state clearly where:
· a question falls outside their expertise;
· the requested matter was outside the original instructions;
· the available evidence is insufficient;
· further documents are required;
· a further inspection or intrusive investigation would be necessary; or
· the question seeks a legal conclusion rather than technical opinion.
Any procedural dispute about whether questions are proportionate or permissible should be addressed by the parties’ legal representatives and, where necessary, the court. Failure to answer properly submitted questions can have serious consequences. The court may restrict reliance on the expert’s evidence or make an order affecting recovery of the expert’s fees.
Why carefully framed questions matter
Properly drafted written questions can clarify technical evidence, correct misunderstandings and narrow the issues requiring determination. They may also reduce the need for supplementary reports or oral evidence.
Poorly framed, repetitive or argumentative questions can instead increase costs and delay the proceedings without assisting the court.
Rectory Surveyors Ltd prepares independent building surveying expert evidence addressing property defects, housing disrepair, defective construction and related building disputes.
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