Change is afoot in the litigation world, I am sure you are well aware of the fixed recoverable cost changes(!) – but did you know about the recent amendment to CPR Rule 28.14 (3)(c)?
Effective October 1, 2023, this rule now imposes a 20-page limit on expert reports in Intermediate Track claims, ranging from £25,000 to £100,000 in value.
As an experienced forensic accountant with a specific focus on loss quantum, I find myself contemplating: will this recent rule adjustment fulfil its intended purpose?
New ruling: “any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report.”
The Arbitrary Nature of 20 Pages
At first glance, this 20-page restriction feels somewhat arbitrary, especially when tasked with untangling the complexities of financial matters. My concern is the potential of this limitation to polarise parties rather than fostering a conducive environment for settlement. After all, how can one always truly encapsulate the nuanced logic and detailed calculations behind an expert’s opinion within such a confined space as 20 pages?
Taking a closer look, this 20-page limit implies that the substantive content of an expert report must squeeze into a mere 14 pages or fewer. That is after taking off (by my reckoning) 6 pages, to accommodate: title page, index, summary & conclusions, declarations, CV and evidence considered pages. The challenge becomes evident.
However, I am not sure this rule change will automatically give the desired outcome. I am not aware of any consultation with experts about this rule change. My view, having looked back at past reports, is that for loss quantum a limit of 25 or 30 pages would have been more workable and still have achieved the underlying aim behind this rule.
The Challenge In Being Concise With Complex Loss Quantum Scenarios
With over 30 years of experience crafting expert witness reports—reports that have earned praise from judges, opposing counsel/solicitors, and fellow experts—I can attest to the challenges ahead. Squeezing a comprehensive, well-reasoned quantum report into 14 pages, covering historical business trading/earnings, prospective trade/profits & earnings, multiple scenarios/outcomes, and detailed calculations, is no small feat. Doing justice to the underlying topic within these new constraints presents a challenge. Even more so if this is a Single Join Expert Report.
I am not saying that it’s impossible to keep reports to 14 pages, but the outcome may not be as helpful to the Court as a longer report. One where there is space to include all logic, appropriate analysis, supporting explanations and research findings – and, importantly, still use Font 12 , line spacing of x1.5 and footnotes.
User-Friendly And Accessibly Design
I have in the past trialled starting each section on a new page (to make things easier for the reader) but I won’t be able to do that again. For the same reason, I tend to use fairly wide margins (thinking that I may be useful for readers who need to add their own notes to my reports). I also tend to use plenty of tables, when setting out the logic behind projections of future trading, costs, profits or earnings – so that the Court, both parties and other experts have a clear trail of my thinking and calculations. Is there a chance that with a one size fits all approach then the ‘baby gets thrown out with the bathwater’?
Lower Claim Value Does Not Necessarily Mean Lower Complexity
A lower claim value does not automatically mean a case is less complicated than one that is worth more – in some cases the reverse is true. Sometimes there can be little difference in the time, the work, the effort or indeed the number of report pages needed by an expert in dealing with a claim worth less that £100,000 compared with one worth more.
In my experience, a clear, logical and well-presented expert’s report can help parties in dispute reach settlement, without the need for a trial. If that is achieved by say a 25- or 30-page report, then what’s not to like!
My Thoughts On How Experts Can Adapt
Though I value the intention behind the CPR rule change, pushing for concise expert evidence, achieving the desired outcome automatically remains uncertain. Perhaps the Courts might accept ‘financial analysis and calculations’ for accountants as akin to ‘plans’ for other types of expert. If not then consideration might be given to the incorporation of supplemental reports or annex reports to compensate for the constraints of the 20-page limit.
This could involve providing more detailed calculations or analysis in a supplemental report. Perhaps offering this additional report, or an annex report, on a without prejudice basis, seeking permission to utilise it if a claim fails to settle. Alternatively, one might opt to engage in a dialogue with the expert, posing questions to clarify various points.
I certainly don’t have a problem with the sentiment behind this new CPR rule change (i.e. please can we have concise expert evidence). I am very used to being concise, focussed and proportionate with my reporting. Oh, instructing solicitors, don’t forget to tell your expert that your claim is in the Intermediate Track – so they know to limit their report.
As ever, we shall do our best!
Richard Formby FCA MAE
At Formby Forensics, we firmly believe in tailor-made solutions. Our BESPOKE, INDEPENDENT, FORENSIC ACCOUNTING services are backed by over 30 years of experience. If you’re handling a claim that could benefit from a fresh perspective, don’t hesitate to get in touch. Let’s discuss the details, and together, we’ll explore how our expertise can make a difference for your client.