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Dispute Resolution - 13 - Expert Evidence - Coggle Diagram
Dispute Resolution - 13 - Expert Evidence
What is an expert?
Strictly controlled by court to deal with cases at
proportionate cost
and efficiently
Anyone with knowledge or experience
in a particular field/discipline
Does NOT
require professional qualifications - though preferred if they have it
Judge determines if someone is truly and expert and thus weight to give to their testimony
Can draw inference from their conclusions about the facts of a case
, UNLIKE a lay witness
Experts can give opinion evidence (on their field of expertise)
Lay witnesses can't
Eg may be a need for
valuation that requires a technical skill
Eg may be a need for
indication of the standard that a technician in a particular field ought to maintain
Expert opinion is subject to 4 basic conditions
Expert opinion must be special knowledge/skill/training that
is NOT in the ordinary experience of the judge
Expert
must demonstrate
they can be regarded as a
true expert
in their field
Expert must give
evidence **
to a reasonable degree of certainty** regarding the inference, opinion, or conclusions
Expert must
be able to demonstrate the basis of their opinions and conclusions
Duties of experts
Owes duty to Court to exercise
independence, integrity, and impartiality
on matters of their expertise
This duty
overrides any obligation to the expert's instructor and payer
Directions regarding experts
After a
CMC
or after reading
Directions Questionnaire
, judge may
decide no expert evidence is required
, or that parties should use
single joint expert
, or that each party can instruct its own expert
If expert changes opinion, they
should notify their instructing solicitor promptly
Expert Report
- substance,
Written vs Oral
(Written default)
Substance of an expert's (written) report
As a general rule,
expert evidence should be written
AND
addressed to the Court
, rather than to the
party instructing the expert
(
unless Court says otherwise)
Expert report should:
Be
independent
and
uninfluenced
Provide an
objective
, unbiased
opinion
State
the
facts on which the opinion is based
Make clear
when:
Issue falls outside of expertise
When there's
insufficient evidence/research on which to base an opinion
Oral evidence can only
be given when Court says so
.
Party requesting the oral evidence must establish:
Expert oral evidence will likely
impact the outcome
It will
assist the judge
There is a
risk of injustice if the expert evidence is NOT TESTED
; AND
;
The costs of the experts attending is not disproportionate
Note: Court can order multiple experts to give evidence at the same time ('hot tubbing'
Single Joint Experts
Choosing the expert - process:
Parties should try to agree identity of single joint expert
If parties cannot agree,
the court must choose from a list both parties provide
Court must give directions for Single Joint Expert in
fast track cases
unless there is a
good reason not too
Parties must
jointly instruct the expert
, and the
expert forwards responses simultaneously to both
Cost is shared until end of trial; then it is borne by the loser (similar provisions for multi-track)
Don't confuse with AGREED EXPERTS
in Medical
Personal Injury
cases
Claimant in PI often relies on 'agreed' expert - expert nominated by claimant's representative in
Pre-Action Protocol
If the defendant doesn't object, claimant obtains report for potential agreement
However, the parties
do NOT
jointly instruct the agreed expert, and the defendant
retains the right to instruct their own expert if they are unhappy
Own Experts
Court may allow parties to obtain reports from their
own experts
(more common in
multi-track
)
Party must PERSUADE COURT
that it is
REASONABLE
for them to have an own expert.
Reasons for own experts may include:
Contending schools of thought
on issue in claim
Complex issues
and high value
text
Parties have had
own experts from PAP
and more
cost-effective
to retain them rather than find a new one
The issue the
experts are focusing on may have huge significance in the action's outcome
- eg issues re:
liability
and
quantum
Instructing Experts - how to
Instructing party
serves copy of Directions Order onto expert
This reiterates importance of overriding objective; and
Expert report
must contain Statement of Truth
Solicitor must not attempt to influence expert - when instructing one, limit themselves to
facts of case, issues on which report is needed, and explaining expert's obligations under CPR
Expert report and instructions for it
are privileged
; but if a party wants to
rely on a report, it must be disclosed
. It
loses its privilege
and the
other party can rely on it
Parties can
ask experts questions
about
the report within 28 days of the expert sending the report
AND must
send copies of their questions to Other Parties
Questions must be:
Proportionate
For clarification of report
Discussions between experts - if Court allows 2 Own Experts
Directions order will likely include requirement
for parties to arrange a
WITHOUT PREJUDICE MEETING BETWEEN THE EXPERTS
Aim to:
Identify issues the experts
might come to an agreement
on
And those issues on which
they can
and
cannot agree
Legal representatives should not be present at these meetings