14: Expert evidence

Question 1

What is the true role of the expert in legal proceedings?

Answer 1

The true role of the expert is to assist the trial judge in understanding any matter of art or science falling beyond the knowledge that can be expected of the trial judge.

Question 2

What is the key difference between expert evidence and lay witness evidence?

Answer 2

Expert evidence differs in that it is opinion-based and provided by someone with specialized knowledge, while lay witness evidence is based on direct perception of relevant facts.

Question 3

In what types of cases is expert evidence usually not permitted?

Answer 3

Expert evidence is usually not permitted in small claims track cases but is usually necessary in fast track and multi-track cases.

Question 4

How might an expert witness be instructed in a case?

Answer 4

An expert witness may be instructed to report on a single joint expert basis or unilaterally for each party.

Question 5

What does s3 Civil Evidence Act 1972 (CEA 1972) set out?

Answer 5

It sets out the test for calling an expert witness in civil proceedings, stating that:
- the expert may give their opinion on any relevant matter AND
- must be qualified to give the opinion.

Question 6

Under what 4 conditions can an expert witness give evidence or conclusions based on opinion?

Answer 6

1. Specialised Insight: Requires expertise beyond the judge’s ordinary knowledge.
2. True Expert: The witness is genuinely qualified in the field.
3. Reasonable Certainty: The expert’s conclusions are confidently reliable.
4. Evidence-Based: Conclusions are backed by demonstrable scientific facts.

Question 7

How might an expert be involved in a dispute as part of the advice sought to prepare the client’s case?

Answer 7

Any advice given by an expert acting in an advisory role for a party, on which that party does not intend to rely, will be privileged from disclosure and not subject to any case management.

Question 8

How might an expert assist parties in resolving a dispute using ADR?

Answer 8

An expert can play a role in mediation, helping parties understand different viewpoints. If both parties have experts, they may explain differences in a joint session for better understanding.

Question 9

What does the Pre-Action Protocol for Personal Injury Claims (PAPPIC) encourage regarding experts?

Answer 9

The PAPPIC encourages the joint selection of and access to experts about the value of the claim and allows the claimant to propose a list of experts to the defendant, who can object within a specified time.

Question 10

What happens if the defendant objects to all proposed experts by the claimant?

Answer 10

The defendant is free to instruct an expert of their choice, but the court will decide later if the defendant has behaved reasonably.

Question 11

Who organizes access to relevant medical records by the expert in a personal injury claim?

Answer 11

The claimant organizes access to relevant medical records by the expert.

Question 12

How long does the defendant have to agree to or raise questions to the medical expert’s report in the PAPPIC?

Answer 12

The defendant has 28 days from the service of the report to agree to or raise questions to the medical expert via the claimant’s legal representatives.

Question 13

Who pays for the cost of the expert’s report and answering questions?

Answer 13

The cost of the report is payable by the claimant, but the cost of the expert answering any questions is usually borne by the party that asks the questions.

Question 14

Can a guarantee be given that the court will allow the client to recover costs for retaining an expert at the pre-action stage?

Answer 14

No, a guarantee cannot be given as the court retains discretion over the use of expert evidence and the recovery of costs.

Question 15

What does the RTA Protocol say about the challenge of a medical report?

Answer 15

The RTA Protocol provisions do not allow the claimant to challenge the factual accuracy of a medical report after it is disclosed to the defendant.

Question 16

What is the primary role of a “treating” expert in personal injury claims?

Answer 16

A treating expert’s primary role is to treat the claimant’s injuries or illness, and their involvement usually predates the dispute.

Question 17

How does a treating expert’s evidence differ from a Part 35 expert witness?

Answer 17

A treating expert gives evidence as a witness of fact, not opinion, while a Part 35 expert witness gives evidence as a witness of opinion, not fact.

Question 18

Are the records of treating experts and Part 35 expert witnesses both disclosable?

Answer 18

No, the records of treating experts are disclosable documents in the proceedings, while the records of Part 35 expert witnesses are privileged from disclosure.

Question 19

Who carries out an “immediate needs” assessment and are they governed by Part 35?

Answer 19

An “immediate needs” assessment is carried out by an independent assessor, usually a treating physician or surgeon, and is not governed by Part 35.

Question 20

What should an “immediate needs” report cover?

Answer 20

The report should cover the claimant’s injuries and present condition, domestic circumstances, whether rehabilitation is suggested, the suggested intervention, and the likely cost and benefit.

Question 21

Does the “immediate needs” report deal with diagnosis, causation, or long-term care requirements?

Answer 21

No, it is an immediate needs report and does not deal with diagnosis, causation, or long-term care requirements.

Question 22

What is the overriding duty of an expert to the court?

Answer 22

The duty of an expert is to help the court on matters within their expertise, overriding any obligation to the party instructing or paying the expert’s fees.

Question 23

What should experts consider obtaining if they give expert evidence ?

Answer 23

Experts should consider obtaining liability insurance even if they only give expert evidence occasionally.

Question 24

What are the differences between fast track and multi-track claims regarding expert witnesses?

Answer 24

• Fast track: Directions about expert evidence usually given on paper after parties file DQs; SJEs by default.
• Multi-track: Directions usually given at a costs and case management conference (CCMC) after parties file DQs; SJEs by default unless good reason not to do so.

Question 25

Under what circumstances might more than one expert be justified?

Answer 25

More than one expert might be justified if:

• There are several recognized schools of thought.
• The issues are very complex.
• The issues are crucial to the case outcome.
• The value of the claim is high.
• Separate experts were already appointed before proceedings began.
• The expert is reporting on difficult issues of liability and causation.

Question 26

What steps are usually taken when permitting expert evidence from an SJE?

Answer 26

• Confirm the identity of an SJE.
• Set a date by which instructions are to be provided.
• Inform the court in writing of SJE appointment.
• Instruct SJE by phone or in person, confirm in writing.
• Address communications to all parties.
• Agree on fees and expenses, ensure they are shared equally.

Question 27

When might each party engage its own expert (unilateral experts)?

Answer 27

If expert evidence is necessary but not suitable for an SJE, parties may be granted permission to use their own experts, often in multi-track cases.

Question 28

What are the contents of a well-structured letter of instruction to an expert?

Answer 28

• Basic information (names, addresses, contact details).
• Reminder to address the report in the first person.
• Key contact details.
• Guidance on contacting for queries.
• Summary of the case and report purpose.
• Chronology of key dates.
• Documents and evidence.
• Report form advice.
• Reminder of the duty to the court.
• Request to sign and contain a statement of truth.

Question 29

What are the key requirements for the form and content of the expert’s report as specified in PD 35, para 3?

Answer 29

The expert’s report must:
- Give details of the expert’s qualifications.
- Include details of any literature or other material relied upon.
- Contain a statement of all facts and instructions material to the opinions expressed.
- Clarify which facts are within the expert’s own knowledge.
- Explain who carried out any examination or test used for the report.
- Summarize the range of opinions, reasons for the expert’s own opinion, and conclusions.
- State qualifications if unable to give an opinion without qualification.
- Contain a statement that the expert understands their duty to the court and has complied with it.

Question 30

What must be included in the disclosure of instructions to an expert?

Answer 30

The substance of any instructions given to the expert, whether written or oral, must be included in the report. These instructions are not privileged and the court will not order disclosure unless there are reasonable grounds to consider the instructions inaccurate or incomplete.

Question 31

How should meetings of experts be conducted according to the CPR?

Answer 31

• Meetings can be in person or by other means such as video call.
• Legal representatives should not be present unless agreed or ordered.
• Discussions should not improperly restrict experts from reaching agreement.
• Experts should submit agreed issues for approval before finalizing.
• The meeting is without prejudice, meaning discussions cannot be used as evidence in the dispute.

Question 32

What should a joint statement between experts include?

Answer 32

• Issues on which they agree.
• Issues on which they disagree.
• Reasons for any disagreement.

Question 33

What can be done if an expert refuses to comply with their responsibilities?

Answer 33

A party can apply to the court for an order joining the expert witness into the proceedings for the purpose of asking the court to make a non-party costs order under s51 Senior Courts Act 1981.

Question 34

How can parties deal with an unfavourable expert report?

Answer 34

• Parties can raise questions to clarify the report or
• Apply to the court for permission to obtain an alternative expert report or
• Appoint a new expert. Although if granted, the party may have to disclose the original unfavourable report.

Question 35

What happens if a party decides not to rely on expert evidence?

Answer 35

The party is not obligated to disclose the expert’s report. However, the report may still be used in cross-examination of the opponent’s expert.

Question 36

What is “hot-tubbing” in the context of expert evidence?

Answer 36

“Hot-tubbing” involves experts from similar disciplines giving evidence concurrently, answering questions from the judge and parties, to help the judge compare their opinions directly.