Regulation 9 of The General Commissioners (Jurisdiction and
Procedure) Regulations SI1994/1812 and Regulation 12 of The Special
Commissioners (Jurisdiction and Procedure) Regulations SI1994/1811
require that, unless the Commissioners direct otherwise, where
expert evidence is to be called, both sides must agree to exchange
the proofs of evidence of their witnesses before the hearing and
must agree the date by which this is to be done (but see AH0915
regarding the Woolf reforms).
The aim of the requirements is to ensure that the range of
controversy is well defined in advance of the hearing. It is also
an object of the rule that neither side is taken by surprise by the
production of expert opinions (see Khan v Edwards 53TC597).
If agreement cannot be reached or the substance of the
evidence has not been so disclosed, then the party who wishes to
introduce the evidence can make an application to the Commissioners
for a direction. That application must be made no later than
twenty-one days (or such later time prior to the hearing as the
Commissioners may permit) after the notice of the hearing is sent
to the parties. The application must state whether the party making
it is willing to disclose the substance of the evidence prior to
the hearing and, if not, why not.
Unless the Commissioners consider there are special reasons
why they should not do so, then on receipt of such an application
they are to direct that a proof of evidence is disclosed and
specify the period within which this is to be done.
This does not apply in Scotland.
