13. Expert Evidence

Question 1

What are the two requirements for an expert to give evidence?

Answer 1

1. They must be qualified to give the opinion
2. Their expert evidence must be reasonably required to resolve proceedings

Question 2

If expert evidence is allowed, what are the four conditions it is still subject to?

Answer 2

1. Opinion must depend on special knowledge, skill, or training that is not within the ordinary experience of a judge
2. Expert is regarded as a true expert
3. Evidence must be given to a reasonable degree of certainty
4. Expert must demonstrate the basis of their opinion and conclusions

Question 3

What is the duty owed by an expert?

Answer 3

To exercise independence, integrity, and impartiality, and this overrides their obligation to the person who instructed/paid them

Question 4

If a party wishes to have an expert testify in court rather than the default of preparing a written report, what four conditions must they satisfy?

Answer 4

1. Expert oral evidence likely to have an impact on the outcome
2. It will assist the judge
3. Risk of injustice if expert evidence is not tested, and
4. Cost of the expert attending is not disproportionate

Question 5

What is the difference between an agreed expert in a personal injury case, and a single joint expert?

Answer 5

An agreed expert is one chosen by a claimant in a personal injury case. The defendant does not have to agree to jointly instruct an agreed expert and the defendant retains the right to instruct their own.

A single joint expert is one where the court has imposed the obligation that parties share an expert, share the fees whilst the matter is ongoing, and then the losing party will assume responsibility for paying the expert after the trial.

Question 6

In what four instances may the court allow parties to have their own expert?

Answer 6

1. Complex issues or high value case
2. Parties already have their own expert from pre-action phase and most cost-effective to retain
3. Number of different schools of thought concerning the issue requiring expert opinion
4. Issue the experts are focusing on has huge significance to the outcome

Question 7

Is an expert’s report privileged?

Answer 7

Until disclosed

Question 8

Does an expert’s report have to be disclosed?

Answer 8

Only if the party intends to rely on it

Question 9

How many days does a party have to put forward questions to an expert?

Answer 9

28 days from receipt of the expert report

Question 10

When experts reach an agreement during one-on-one discussions, are they bound by it?

Answer 10

No, unless they expressly agree to.

Question 11

What are the consequences of failing to dislcose an expert report?

Answer 11

Party cannot call their expert or rely on its evidence, unless the court permits it.

Question 12

Where an expert wishes to ask the court a question, what procedure must it follow?

Answer 12

1) Provide its own party with a copy of its proposed request at least 7 days before filing it
AND
2) Serve it on all other parties at least 4 days before filing

Question 13

What are the implications for a party whose expert fails to respond to questions put to them?

Answer 13

Either (1) unable to rely on evidence of that expert or (2) may not recover fees/expenses from other parties relating to the expert.

Question 14

In a fast-track and small-claim track, what is the standard procedure for hearing expert evidence?

Answer 14

written report is produced, but court will not allow oral expert evidence unless it is in the interests of justice to.

Question 15

What is the procedure for putting forward questions to another party’s expert?

Answer 15

need to send other party a copy the questions.
- only be put forward once and aimed at clarifying the report.

Question 16

What must an application for permission to rely on expert evidence contain?

Answer 16

1) cost estimate of expert
2) identify field + if ‘practicable’ name

Question 17

What part of an expert’s discussions with the party instructing them is not subject to litigation privilege?

Answer 17

party’s letter instructing the expert

Question 18

Can a party request to inspect their opponent’s letter instructing their expert?

Answer 18

No, court will not require it, and will not allow it to be used in course of cross-examination of expert.

UNLESS
- court considers that the instructions the expert was given are inaccurate or incomplete.

Question 19

Who must an expert direct address their statement to?

Answer 19

the court, and not the instructing party

Question 20

What information must an expert’s report contain?

Answer 20

1) Qualifications
2) Materials Used
3) Information given to make report
4) Facts that fall within its expertise
5) Experiments/test conducted (all details)
6) Conclusion reaches
7) Statement of truth

Question 21

When instructing a single joint-expert, are parties entitled to instruct the expert separately?

Answer 21

Yes, can give their own/separate instructions.
BUT must serve these on the other party.

Question 22

When is a party entitled to protest against their expert conduct in the course of joint expert discussions?

Answer 22

where it considers that their expert stepped outside their expertise or acted incompetently in reaching an agreement.

Question 23

What arguments might a party protesting against their expert’s conduct in joint expert discussions wish to raise?

Answer 23

1) agreement is invalid;
2) given chance to instruct another expert instead.

Question 24

Where a party is unhappy with their present expert’s conduct, what would a judge need to be satisfied with to allow a party to instruct a new expert ?

Answer 24

1) Expert changed its opinion in the joint discussions for no fair or justifiable reason
AND
2) Necessary to resolve the proceedings

Question 25

What recourse does a party have where it receives an unfavorable report from their own expert?

Answer 25

1) Settle
2) Put questions to their expert
3) Seek advice from another expert
4) Cross-examine their own expert - seek court’s directions if there is no provision was made for evidence to be given orally.
5) Notice to admit fact - as loophole (ie. on quantum, but then deny liability)

Question 26

What are the implications for a party where it seeks another expert’s advice?

Answer 26

1) Need to disclose first expert’s report
2) Loss of credibility
3) Cost sanctions - inability to recover expert costs.
4) Other party can rely on its earlier report….

• only permitted in exceptional circumstances