Written questions under CPR 35.6: tactics for the instructing solicitor

The purpose of clarification under CPR 35.6

In civil litigation within England and Wales, the mechanism provided by CPR 35.6 allows a party to submit written questions to an expert. The primary function is to seek clarification where an expert report is ambiguous or where the underlying reasoning on a specific clinical conclusion requires further articulation. For the instructing solicitor, this tool serves to focus the evidence on specific points of dispute before trial. It is not intended to be a vehicle for cross-examination or an invitation to provide a supplementary report that introduces entirely new evidence. If the report fails to engage with a central document in the trial bundle, or if the reasoning appears internally inconsistent, a proportionate question may resolve the uncertainty.

Evidential constraints and scope

A written question must be proportionate. The court expects that questions will not impose an undue burden on the expert or lead to a disproportionate increase in costs. Solicitors should remain mindful that the expert’s duty is owed to the court under CPR 35.3, which overrides any obligation to the instructing party. Questions that attempt to steer the expert towards a particular conclusion or advocate for a party’s position risk compromising that independence. An expert who identifies that a question seeks to influence their opinion may decline to answer or refer the matter to the court for directions under CPR 35.14. The evidence is most useful when it identifies the boundaries of what can be determined from the available records; if a question seeks to address a gap in the records that the expert has already noted as a limitation, the resulting answer is rarely of further assistance.

Distinguishing questions from joint discussions

Instructing solicitors occasionally conflate the process of written questions under CPR 35.6 with the discussions between experts mandated by CPR 35.12. These are distinct procedures. CPR 35.12 discussions occur between two or more experts from the same or different disciplines to reach a joint statement, identifying areas of agreement and disagreement. In contrast, CPR 35.6 questions are a unilateral tool used to clarify the report of one specific expert. A question should not be used as a substitute for a joint discussion. Where the dispute involves a difference of clinical opinion between the claimant’s expert and the defendant’s expert, the appropriate route is the joint statement process, which is specifically designed to narrow issues for the court.

The handover between disciplines

Written questions are most effective when they reflect the specific remit of the expert being addressed. A question posed to a general practitioner regarding the standard of care in a complex surgical procedure may fall outside their sphere of expertise. Where the evidence regarding breach of duty relies on an interpretation of surgical technique, the question should be directed to the relevant consultant surgeon. Similarly, if a question regarding quantum, such as the future cost of care, is directed at a clinical expert who has not been instructed to assess care needs, the response will often reflect that the matter falls outside their area of expertise. Maintaining these disciplinary boundaries ensures that the responses provided under CPR 35.6 remain robust and admissible.

Procedural requirements in England and Wales

CPR 35.6 requires that questions be put within 28 days of service of the expert’s report. This timeline may be extended by agreement or court order. Where the expert fails to provide a response, the court has the power to direct that the report cannot be relied upon unless the answer is provided. However, such an outcome is severe. The expert’s response becomes part of the report, meaning the answers given under this rule carry the same weight as the original text. Solicitors should consider the following when framing questions:

• Ensure the question directly references the paragraph or finding in the original report.
• Keep the question precise to avoid generic or speculative replies.
• Verify that the information sought is within the expert’s documented area of expertise.
• Review the potential impact of an expert’s clarification, as a detailed response may occasionally weaken, rather than strengthen, a particular argument.

The efficacy of written questions depends on the clarity and specificity of the request. All communication between the solicitor and the expert regarding these questions must remain transparent, as the expert’s duty to the court remains paramount throughout the litigation process.