Update on the 20-page limit for expert reports on the Intermediate Track

The new Intermediate Track

In October 2023, the Civil Procedure Rule Committee (‘Committee’) introduced a new Intermediate Track for claims between £25,000 and £100,000, with some exceptions, including clinical negligence claims. Included in the changes to Civil Procedural Rules (‘CPR’) Part 28 which introduced the new Intermediate Track was a limit of 20-pages on expert reports.

The 20-page limit had been proposed in a 2017 report by Sir Rupert Jackson on Fixed Recoverable Costs, which stated at Chapter 7, paragraph 4.7 that:

“4.7 Expert evidence. Oral expert evidence shall be limited to one or, if reasonably required and proportionate, two expert witnesses for each party. Each expert report shall be no more than 20 pages. This limit does not apply to any necessary photographs, plans and academic or technical articles attached to the report. In appropriate cases opposing experts shall give their evidence concurrently, in accordance with section 11 of Practice Direction 35.”

The Ministry of Justice and the Committee relied on the consultation undertaken as part of the Jackson Report, choosing not to undertake a specific consultation on the inclusion of the limit within the Intermediate Track.

Clarification of the 20-page limit

In the minutes of their November meeting, the Committee provided some clarification on the 20-page limit for expert reports. These amendments have been included in Civil Procedure Rules (‘CPR’) rule 28.14(3)(c) which now clarifies that:

(c)   any expert report shall not exceed 20 pages—

(i)     including the expert’s description of the issues on which they are instructed to give their opinion, the conclusions they have reached and the reasons for those conclusions; but

(ii)   excluding the expert’s curriculum vitae, any supporting materials to which the reasons for their conclusions refer and any necessary photographs, plans and academic articles attached to the report.

Raising our concerns with the Committee

We have raised our concerns, and those of our members, with the Committee that the clarification, while welcome, does not address the central issues with respect to the 20-page limit, which are:

• Lower value cases are not always straightforward. We have had significant feedback from members across a range of professions providing examples of low-value cases that are nonetheless complex in their nature requiring review of significant volumes of evidence,
• Expert witnesses are required to meet their full obligations under CPR35, PD 35 and The Guidance for the Instruction of Experts in Civil Claims. This was recently highlighted in the Supreme Court ruling in Griffiths vs TUI which highlighted that experts must provide the full reasoning for their opinion. An arbitrary restriction in page numbers is inconsistent with this, and
• Different types of reports have different requirements, which may vary according to profession, whether opinion is required on breach or quantum, and whether there are differences in factual or expert evidence to address. Undoubtedly some reports will be less than 20 pages, but many will typically not be, and for good reason.

We also noted the potential for significant unintended consequences. We have seen this already, with one large expert witness agency having already written to the expert witnesses they work with, advising that the 20-page limit should be “general best practice” for all expert reports, not just those for cases on the Intermediate Track. We have written to that organisation expressing our deep concerns with their advice.

The Committee’s response

In response to our concerns, the Committee has told us that it is not minded to further revisit the rule changes at this time. They have indicated that the 20-page limit itself is settled government policy based on the recommendation in the Jackson Report, and that the expanded rule 28.14(c) was an appropriate solution in response to the call for clarity on this topic.

The Committee noted that, while the Jackson Report did not set out the details of the rationale for the 20-page limit, it was carefully considered by Sir Rupert Jackson and the assessors.

The review

The Committee intends to review the reform after 12 months and has indicated that the Ministry of Justice is open to reconsidering the points we raised as part of that review, if we still have these concerns at that time. We will be monitoring the impact of the 20-page limit and will engage fully in the Committee's review.

We are concerned, however, that the lack of clarity in the rationale makes it challenging to assess whether the reform has achieved its purpose in a proportionate manner, and without unintended consequences.

EWI’s advice

In the meantime, Expert Witnesses should apply the clarifications set out in rule 28.14(3)(c) and will need to work with their instructing party and the court to address any matters not dealt with in the clarification. We will be monitoring the impact of the 20-page limit and will set out guidance on best practice for members once this is clear.

To ensure that you comply with the rule, we also recommend that members review the advice we set out in December on Expert Evidence and the Intermediate Track, which includes discussion on the 20-page limit and the Committee’s clarifications to rule 28.14(3)(c).

Lastly, we would also appreciate hearing from you on the impact of the 20-page limit on your practice as an Expert Witness. Please contact Sean Mosby at policy@ewi.org.uk.