EXPERT EVIDENCE (35.1 - Court has a duty to restrict expert evidence to…
35.1 - Court has a duty to restrict expert evidence to which is reasonably required to resolve the proceedings.
- Expert evidence can only be adduced with court's permission
- Court may give directions as to the issues which require evidence, nature of the evidence to be decided and the way it is to be placed before court.
- Timing is important. Evidence shall be sought appropriately early and the expert is expected to be made available during the trial period.
Expert evidence not necessary in:
- Hypothetical situations (Opinion evidence as to what an expert would have done in a hypothetical situation is not admissible.
35.7 - Court has power to direct that evidence is given by a single joint expert where 2/more parties wish to submit expert evidence on a particular issue.
- in deciding whether to have separate experts, court will consider the amount, the importance to the parties and the complexity of the issues
- if parties cannot agree on a single joint expert,
court may select expert from a list prepared by relevant parties or
direct expert to be selected in such a manner as the court may direct
Obtaining further expert evidence
- If dissatisfied party has reasons which were not fanciful, court may grant permission to a party to obtain a further report which will enable the party to make a decision on whether or not there are aspects of the report of the previous single joint expert that they wish to challenge.
- If it would be unjust, having regard to the overriding objective, not to allow the party to call the further expert evidence, then they must be allowed to call the evidence.
- If a further expert evidence is allowed, court has to make a decision what evidence should be called at trial. This decision should not be made until there is a meeting of the experts involved.
- Permitting an additional expert would need to be justified by good reasons and the court should be slow to allow such applications where issues concerned non-medical evidence
35.3 - Experts has an overriding duty to the court
- This duty overrides any obligation to the person that gave him instructions or paid him
- Failure of an expert to observe his duties and responsibilities can undermine the integrity of the judicial process and render the expert liable to sanctions
- Experts are not to act as advocate for the party instructing them.
- evidence should be an independent product of the expert uninfluenced by the exigencies of litigation.
- expert witness should provide independent assistance to the court by way of an objective unbiased opinion
- should state the facts or assumptions in which the opinion is based and not omit facts which detract from their concluded opinion
- should make clear when a particular qs/ issue falls outside their expertise.
- If expert opinion is not properly researched because of insufficient data, must state that it is merely a provisional opinion
- If after the exchange of reports, an expert witness changes their view having read the other side's report, that change of view should be communicated to the other side without delay and when appropriate to the court.
- If expert report refers to photographs, plans, calculations, measurements etc, they must be provided to the opposite party at the same time as the exchange of reports.
35.4 - Court's power to restrict expert evidence
- When party apply for permission to put in expert evidence, they must provide an estimate of the costs of the proposed expert evidence and identify:
a) The field in which expert evidence is required and the issues which the evidence will address and
b) where practicable, the name of the proposed expert
- In soft tissue injury claim, permission may not normally only be given for 1 expert medical report and may be given initially unless the medical report is a fixed costs medical report.
- The requirement to obtain court's permission cannot be circumvented by seeking to adduce expert evidence within or as annex to a w/s
- Burden is on party seeking to adduce the expert evidence to persuade the court that it will assist the court.
- Expert evidence must be
a) Contained within a recognised body of expertise governed by recognised standards and rules of conduct relevant to the qs court has to decide and
b) of such a nature that a person without such experience in the area of knowledge would not be able to form a sound judgement on the matter without assistance of a witness possessing special knowledge in that area.
- 3 stage test:
1) Is expert evidence necessary to decide an issue, rather than merely helpful? If yes, then admit
2) If it is not necessary, will it assist the judge in determining the issue? If would assist then consider (3)
3) if expert evidence on that issue was reasonably required to determine the proceedings. Consider value of the claim, proportionality and who is paying.
35.5 - expert evidence should be given in a written report.
- If a claim is in a small claims/ fast track, court will not direct an expert to attend hearing unless necessary to do so in the interest of justice.
35.10 - Contents of report
- At end of the report, must be a statement that the expert understands and complied with their duty to the court
- must state the substance of all material instructions (whether written or oral)
- Instructions will not be privileged against disclosure but court will not order disclosure of any specific document or permit any questioning than by the party instructing the expert unless
court is satisfied that there are reasonable grounds to believe that the instruction is inaccurate or incomplete. Court will only allow cross examination on instructions if in the interest of justice.
Attempts to introduce expert evidence late in the timetable or the unavailability of the parties chosen expert for the trial window or fixed trial date, will rarely be sufficient grounds to vary case management directions or trial dates or grant an adjournment.
- Not acceptable for expert to be instructed shortly before trial without checking their availability before the trial date.
- Court needs to know specifically why an expert is not available for the trial date before the court will even begin to consider whether the date might be rearranged.
Judge is entitled to prefer the evidence of a witness of fact to that of an expert witness. If so, reasons justifying the preference should be given.
- Failure to give reasons may be valid grounds for an appeal and for remitting the case back for a retrial.
- Judge is entitled to prefer the evidence of one expert to that of another especially if supported by evidence, but reasons should be given. Not sufficient to say that the other expert is highly reputable.
- Where expert evidence is relevant to liability, the judge must consider the evidence at the time when they are reaching their conclusion on the credibility of the witness.
- where an expert witness completely disregards their duty to the court by not following court orders, the court may rule that the party may not rely on the expert's evidence. This may even mean that the party loses the entire action.
35.14 - expert may file written requests for directions to assist them in carrying out their functions
- expert must provide copies of the proposed requests for directions
a) to the parties instructing them, at least 7 days before they file the request and
b) to all other parties, at least 4 days before they file
- When the court gives directions, it may also direct that a party be served with a copy of the direction
35.11 - If one party has disclosed an expert report, any party may use that expert report as evidence in trial
- No need for party to seek permission to rely on an expert report by a party who has ceased to be involved in proceedings. This is even if no specific permission is given to rely upon these reports, but the party wanting to use it should inform the remaining parties which report they intend to rely on and for what purpose.
- Applies to all provision of opinion evidence by expert witnesses except were a claim is allocated to the small claims track
- Expert evidence is an exception to the GR that only evidence of fact may be adduced.
- they may give their opinion on specific matters in the dispute within their expertise. They cannot give their opinion on issues of law or fact which the judge or jury has to decide.
- NON EXPERT OPINION EVIDENCE - An opinion on any relevant matter on which an expert is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by them is admissible as evidence of what they perceived.
35.6 - A party may put written questions about an expert report (must be proportionate) to an expert/ single joint expert
- Written questions can be put once only, within 28 days of service of expert report and for the purpose of clarification of the report unless
Court gives permission/ the other party agrees
- a copy of the questions must at the same time be send to the other party
- an expert's answers to the qs are treated as part of the expert's report
- party instructing the expert must pay fees charged for answering the qs. this does not affect any decision of the court as to who ultimately bears the expert's fees.
- If qs were put but expert does not answer, then the court may order
a) that the party may not rely on evidence of that expert or
b) that the party may not recover the fees or expenses of that expert from any other party
35.12 - Court may at any stage direct a discussion between experts to
a) identify and discuss the expert issues in proceedings and
b) if possible, reach an agreed opinion on those issues
- Court may specify the issues the experts must discuss
- court may direct for a statement to be prepared following discussion setting out issues where they agree and if they disagree, any reasons for that.
- Contents of the discussion shall not be referred to at trial unless parties agrees
- if experts reach an agreement, the agreement shall not bind the parties unless the parties agree to be expressly bound.
- Statement must be signed by experts at the end of the discussion or in any event within 7 days. Copies of the statement must be provided to the parties no later than 14 days after signing
35.13 - failure to disclose expert report may result in not being able to use the report at trial or call the expert to give oral evidence. Loss of right to call amounts to a sanction - therefore need to get relief from sanction first. (CPR 3.9)
Experts may provide evidence on the ultimate issue in proceedings.
- They must not however determines such issues. It is for the court, on the balance of probabilities, to determine such issues based on the evidence before it. Trial is by judge and not expert.
- Expert evidence could provide guidelines within which the fats fell to be decided by a judge