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Have they Written the Perfect CPR Part 35 Questions? - Dr Mark Burgin

25/03/19. Dr. Mark Burgin BM BCh (oxon) MRCGP considers how three ‘perfect’ Part 35 Questions have changed the balance in favour of the defendant and can challenge an expert’s independence.

Defendants solicitors have only one opportunity to challenge the Medical expert’s report directly as they are unlikely to get permission to cross examine the expert in court.

As an expert for 18 years I have seen the gradual evolution of part 35 questions in LVI from tentative suggestions that the claimant may not be honest to the present elegant form.

Fundamental dishonesty has become the prize in defending PI with one firm of solicitors quoted as having achieved this outcome in over 400 cases.

This is attracting the attention of solicitors on both sides but many medical experts are facing this challenge alone because there is little published information available.

Perfect Part 35 questions would have enough questions to clarify the report, enough complexity to identify specific points and not be disproportionate in terms of expert time.

Claimant Solicitor’s Instructions

Many part 35 questions are self-explanatory so that the medical expert can deal fully with the issues as they provide the answers to the questions asked.

Where the third party is raising issues about LVI the expert should be provided with all the engineering evidence and explicitly instructed to consider LVI.

If the questions are about honesty the expert can assess inconsistency by comparing the medical records with the claimant’s statement about their past medical history.

Ideally where the claimant has forgotten to mention previous accidents then the AskCue report and DWP letter can allow the expert to address this failure fully prior to part 35 questions.

Where the accounts by the claimant and the defendant appear wholly inconsistent then providing these statements and the Defence can allow the expert to consider the likely mechanism of injury.

Rarely when the expert has only just started PI work the solicitor will need to spell out the meaning of the defendant’s questions, so the expert can properly assist the court.


There are still some part 35 questions which attempt to cross examine the medical expert asking 15 to 50 questions each requiring at least 5 minutes to answer.

Once the estimated work needed to reasonably answer the questions exceeds the £80 allocated to answer these questions the work is disproportionate. CPR 44.3(2)

It is for the expert to raise this issue with the court as the solicitors cannot instruct the expert to take less than 5 minutes to answer each question.

The expert cannot rely upon taking longer to answer than is reasonable to raise disproportionality and should give low estimates to their hourly rate.

At £80 per hour the expert would not be able to answer more than about 12 questions (or sub questions) and should, if possible, reduce the number of questions with the following statement.

I have determined that the following questions are disproportionate 35.6 (1) on the grounds that they are not for clarification, are repetitive, contain factual errors, are for the purpose of cross examination or ask for non material answers and therefore my answering these will not assist the court, I recommend that the offending questions are omitted or redrafted or an application to the court is made for permission and costs.

The Perfect Three CPR Part 35 Questions

The first perfect question raises the issue of low velocity impact subtly but with a power to destroy the expert’s opinion as it is pure clarification of the report...

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