The 40th Update to the Civil Procedural Rules introduces many changes to a number of areas. Medical experts will be affected by these changes, as the rules governing medical experts have not been found to be completely satisfactory. The medical expert is sometimes perceived as slightly aloof and not fully engaged in the case as all the other parties have been. Cases where a joint expert has not been chosen have given rise to fears of bias and predisposition towards the instructing party albeit that these fears may be false, in a litigious environment it is not difficult to understand how they arise.

The rules governing medical expert's duties and evidence are found in Part 35 Civil Procedural Rules 1998. Part 35 CPR 1998 and the accompanying Practice Direction set out:

- The duty to restrict expert evidence
- Interpretation
- Experts overriding duty to the court
- The courts power to restrict expert evidence
- The general requirement for expert evidence to be given in a written report
- Written questions to experts
- Courts power to direct that evidence is to be given by a single joint expert
- Instructions to a single joint expert
- The power of the court to direct a party to provide information
- Contents of the report
- The use by a party of an experts evidence disclosed by another party
- Discussions between experts
- Consequences of failure to disclose an experts report

Part 35 CPR details amongst other things that the expert has an overriding duty to the court and that medical experts cannot be retained under Conditional Fee Arrangements. Under the 40th Update of the Civil Procedural Rules a new protocol, 'The Protocol for the Instruction of Experts' aimed at medical experts reinforces the principle that a medical expert should be impartial in Personal Injury cases and is found annexed to Practice Direction 35

The new rules are aimed directly at the expert and really solidify and raise consciousness as to the role of the expert. The Protocol will replace the Code of Guidance on Expert Evidence and another benefit is arguably that the updated rules also bring the expert into the loop in terms of case management.

The protocol should be especially reassuring to Defendant's and their Insurer's for whom in Personal Injury cases, a medical expert's opinions can often determine the severity of the financial implications of litigation.

The Protocol for the Instruction of Experts to give Evidence in Civil Claims will set out key points for experts to follow which will include the fact that experts in Personal Injury and other civil matters must be aware of the overriding objective of the Civil Procedural Rules (rule1) which in effect state that the expert's duty is to the court to deal with cases fairly and justly; some commentators advocate that a useful test to apply would be to question whether the expert's advice would be the same regardless of whether they have been instructed by a Claimant or a Defendant.

The courts may also now take into account failure to comply with the Protocol for the Instruction of Experts when making orders in relation to costs, time limits or stay of proceedings.

For the Personal Injury Defendant, this should go some way to allaying fears that experts instructed by the Claimant will be sympathisers of their clients, therefore sacrificing their neutrality or feel some duty to mediate between parties or decide on facts which is of course, the role of the court. For the Expert the existence of the Protocol should preempt any such fears and allow them to provide their reports as necessary.

Of course, many people are aware of the role of the expert in criminal cases which resulted in the convictions of those like Sally Canning, the solicitor accused of killing her children and seemingly convicted on the compelling but ultimately flawed and grossly misleading evidence of Sir Roy Meadows. Whilst the criminal protocol has not yet been put into place, there are few who feel it will differ too greatly from the civil protocol.

Whilst the civil courts have yet to see such high profile miscarriages of justice it can be no bad thing to ensure that all sides are aware of the role of the expert in litigation.