Expert witnesses play a key role in the justice system and it has always been the case that expert reports and other documents referred to in court were in the public domain. But getting hold of them has not been straightforward and concerns were raised in Lady Hale’s judgment in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 a case relating to asbestos exposure. This set out something of a mish-mash of practices and rules and the issue, together with the increasing reliance on electronic court bundles gave rise to the work of Transparency and Open Justice Board.
The resulting Access to Public Domain Documents Pilot, postponed from earlier this year, will now go live on 1st January 2026, initially for year. Details of the pilot are set out in Practice Direction 51ZH but the key points that experts should take note of are as follows;
- Pilot covers Commercial Court and London Circuit Commercial Court of the King’s Bench Division and the Financial List (Commercial Court and Chancery Division) only.
- It affects any documents that have already been filed with the court and which are then relied on in court from January 2026, not just new documents.
- Affected documents include expert reports and annexes and appendices to expert reports;
- Expert reports these must be filed within 14 days of being relied on (submissions, skeletons within 2 days).
Filing of reports will be the norm, exceptions require a Filing Modification Order or FMO to be applied for.
In summary while expert reports were always theoretically available to non-parties access should become a great deal easier, see the Academy website for more detailed guidance.
Only time will tell whether the press or public will have an appetite for reading sometimes complex and lengthy reports on forensic accounting, construction or IT but experts should make sure, as always, that their opinions are properly supported, reasoned and consistent with their previous opinions – remembering that any report that has been filed will potentially become available through the pilot if used in hearing!
The Academy responded to the consultation for the pilot and continues to engage with the judiciary and legal profession on this and other issues to ensure that expert views are taken into account and that members have access to the best possible advice and guidance.
Our Judicial Committee publishes the authoritative guidance for experts so you can be sure that you are adopting best practice. This includes for example the Model Form of Expert’s Report and Guidance Notes on Meetings of Experts, Contingency Fees & Remote Evidence.
We also provide practical advice and guidance on topics such as GDPR, Joint Statements, privilege and so on which is available at no charge to members in the Academy’s Knowledge Hub.
Members can also call our Technical Helpline for help and advice on ethical and practical issues from dealing with instructions to getting paid.