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In an England and Wales construction dispute, an expert witness is not supposed to simply support the party who pays them. Under Civil Procedure Rule 35.3, the expert’s overriding duty is to help the court; that duty takes priority over obligations to the instructing or paying party. Payment does not disqualify an expert, but neither does it turn the expert into an advocate.
That distinction matters when technical evidence could shape the outcome of a claim about matters such as defects, causation or valuation. The court controls whether expert evidence is needed, what issues it may address and how it is presented. These rules apply to civil proceedings in England and Wales; they are a general explanation, not advice on a particular dispute.
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“Hired gun” is a rhetorical label, not the legal test. A party may instruct and pay an expert, but the expert’s task is to give independent, objective and unbiased opinion evidence within their expertise—not to argue the party’s case. The governing duties are in CPR Part 35 and Practice Direction 35 (PD 35).
CPR 35.3(1) says that experts must help the court on matters within their expertise. Rule 35.3(2) makes the priority explicit: “This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.” PD 35.2.2 adds: “Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”
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In practical terms, an expert should not shape an opinion to make a party’s position look stronger. The expert should consider material facts that may count against their view, identify matters outside their expertise and say when the information available does not support a definite conclusion. Independence is demonstrated in the reasoning and limits of the evidence, not merely by calling someone independent.
The duty does not mean the expert cannot be instructed by one side, or that the expert must avoid reaching a conclusion that supports that side. It means the conclusion must be the expert’s honest professional opinion, reached independently and presented fairly. The court—not the retaining party—decides what weight to give the evidence.
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When can a party use expert evidence?
Expert evidence is not automatic just because a claim involves technical issues. CPR 35.1 restricts it to what is reasonably required to resolve the proceedings, and CPR 35.4 generally requires the court’s permission before a party may call an expert or rely on an expert report.
A party seeking permission should identify the field of expertise and the issues the evidence will address, estimate the costs and, where practicable, name the proposed expert. The court can limit permission to a particular expert, field or set of issues. It can also limit the fees recoverable from another party. Permission is therefore a case-management control over both the scope and potential cost of expert evidence.
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That control is especially relevant in construction litigation, where a dispute can contain several technical questions but not every question will need expert opinion. A court may need evidence on a defined technical issue; that does not make every aspect of the claim an expert issue. The appropriate scope depends on what is reasonably required to resolve the proceedings.
There can also be additional controls linked to the applicable track. The rules include provisions concerning oral expert attendance in small claims and fast-track cases, and limits on the number of experts in relevant allocations. The precise provision depends on the track and current rule text, so parties should not assume that permission or attendance arrangements are identical across cases.
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Written reports are the ordinary form of expert evidence unless the court directs otherwise. A report should give the court enough information to understand the expert’s opinion, the materials and instructions behind it, and any limits on the conclusion. CPR 35.10 requires compliance with PD 35 and a statement of the substance of the material instructions.
PD 35 sets out the report’s expected contents. In broad terms, it should include:
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- the expert’s qualifications and the materials relied on;
- the substance of material facts and instructions, identifying which facts are within the expert’s own knowledge;
- who carried out any examination, test, measurement or experiment, and under whose supervision;
- the range of opinion on an issue where one exists, and the reasons for the expert’s chosen view;
- the expert’s conclusions and any qualification to the opinion; and
- the required declaration of duty and statement of truth.
These requirements make the report’s reasoning open to scrutiny. For example, a reader should be able to distinguish an expert’s own observation from information supplied by others, and understand the basis for a conclusion where there is a range of professional opinion. If the information is insufficient for a firm view, the report should say so rather than imply certainty.
The report is not an opportunity to make submissions for the party who commissioned it. Its purpose is to assist the court with opinion on matters within the expert’s field. A report that obscures its assumptions, fails to explain a material conclusion or strays into advocacy may be harder for the court to assess against the expert’s overriding duty.
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The rules provide ways to clarify evidence and identify which issues genuinely remain disputed. A party may generally put proportionate written questions to an expert once, for clarification, within 28 days after the report is served. The court can also direct experts to discuss specified issues and, where possible, reach agreed opinions.
An expert discussion is not automatically required in every case. Under PD 35, its purpose is to narrow the issues, not to settle the dispute or replace the court’s decision. The experts’ joint statement should record areas of agreement and disagreement, with short reasons for any disagreement. An agreement reached in discussion does not bind the parties unless they expressly agree that it will. Unless the court orders otherwise, the discussion itself is not referred to at trial.
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Where expert evidence is given concurrently, PD 35 describes a judge-led process. The judge organises the discussion around an agenda, then asks questions to test or clarify the opinions and address omissions. This is a way of examining the expert evidence; it does not change the expert’s duty or make the expert an advocate for either party.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.When might the court direct a single joint expert?
Where two or more parties want expert evidence on the same issue, the court may direct them to use a single joint expert. This is an expert instructed to prepare a report for the court on behalf of two or more parties. It is a case-specific option, not an automatic requirement in every dispute.
PD 35 identifies factors relevant to whether joint instruction is suitable. They include the amount in dispute, the importance and complexity of the issue, and whether a joint expert could help resolve it more quickly and economically. The court may also consider whether the field is established or likely to involve a range of opinion, whether a party has already instructed an expert, and whether questions to an existing expert might remove the need for another.
Practical demands matter too. Further testing or conferences may be needed, and privilege concerns may make joint instruction inappropriate. A single expert can be a proportionate way to obtain evidence on a limited or relatively straightforward issue, but it may be a poor fit where the question is complex, a real range of opinion is expected or the parties’ existing work cannot sensibly be shared. The court weighs suitability in the circumstances rather than applying a blanket preference.
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Unless the court directs otherwise, the relevant parties are jointly and severally responsible for a single joint expert’s fees and expenses. A party considering this route should therefore treat it as both an evidence arrangement and a cost responsibility, not simply a way to avoid each side instructing its own expert.
What should a party take from these rules?
For anyone involved in a construction claim, the central point is that expert evidence belongs within the court’s process, not as an unrestricted tool of the party that commissioned it. Before seeking permission, identify the technical issue that actually needs expert help and consider whether its importance and complexity justify the proposed scope and cost.
When reviewing a report, focus on whether it explains its materials, assumptions, reasoning and limitations; distinguishes the expert’s own knowledge from supplied facts; and fairly acknowledges any range of opinion. Where clarification could resolve uncertainty, the rules provide a route for proportionate questions. Where the evidence remains disputed, the court can direct expert discussion or consider a joint expert arrangement if that is suitable.
The framework thus addresses the “hired gun” concern through both a clear overriding duty and procedural safeguards: permission, defined scope, report requirements, clarification and case management. An expert may be paid by a party, but must assist the court independently.
Frequently Asked Questions
Can an expert report be used at trial if it was not disclosed?
A party that has not disclosed an expert report generally cannot use it at trial or call that expert to give oral evidence without the court’s permission. The court’s procedural control therefore applies not only to the original instruction but also to whether the evidence may be used.
Can an expert ask the court for directions?
Yes. An expert may ask the court for directions to help carry out their functions. This is consistent with the expert’s role as a participant in the court’s evidence process rather than simply an agent of the instructing party.
Does an expert have to give a definite answer if the evidence is incomplete?
No. The practice direction expects an expert to identify when the available information does not permit a definite view and to qualify an opinion where appropriate. A candid explanation of uncertainty is more consistent with the duty to assist the court than overstating what the evidence can establish.
