18 Expert evidence

Question 1

What are the limits on experts?

Answer 1

Experts MUST help the court on matters within their expertise. This overrides any obligation to person from whom experts have received instructions and are paid.

Question 2

Party’s wishing to put EE’s evidence in, what must they do?

Answer 2

No party can call an expert or put in evidence the report without the court’s permission.

Question 3

When parties apply for permission to adduce EE, they must provide and identify:

Answer 3

Provide an estimate of costs of expert, and identify:

1) The field in which expert evidence is required and the issues which the expert evidence will address; and
2) Where practicable, the name

Question 4

What happens in the small and fast track if permission if given for EE?

Answer 4

it will normally be given for evidence from only one expert on a particular issue.

If on small or fast track, the court will not direct expert to attend hearing unless necessary in the interests of justice

Question 5

What is the format of EE?

Answer 5

Expert evidence is to be given in a written report unless directed otherwise

Question 6

Where parties who wish to submit the evidence cannot agree who should be the SJE, the court may

Answer 6

1) Select the expert from a list
2) dIRECT THE EXPERT TO BE SELECTED IN ANOTHER MANNER

Question 7

Written questions to an expert must be proportional and

Answer 7

1) May be put only once;
2) Must be put within 28 days of service of expert’s report; and
3) Must be for purpose of clarification of the report, unless
a. Court gives permission;
b. Other party agrees

The expert’s answers to questions will be treated as party of the expert’s report

Question 8

Where the expert does not answer the question, the court may order that party who instructed the expert

Answer 8

1) That he may not rely on evidence of that expert;
2) The party may not recover fees and expenses of that expert.

Question 9

Instructions to a single joint expert

Where court says a SJE must be used, any party can give instructions.

When a party gives instructions, they must:

Answer 9

send this to other parties.

Question 10

When it costs for the costs of a SJE, the parties are

Answer 10

jointly and severally liable.

Question 11

In relation to a SJE:

Where a party has access to information not reasonably available to another party, the court may direct the party who had access to the information to:

Answer 11

1) Prepare and file a document recording the information; and
2) Serve a copy

Question 12

Contents of expert report

Answer 12

There must be a SoT.

Expert report must state substance of all material instructions.

The instructions shall not be privileged against disclosure, but court will not:

a) Order disclosure of any specific document; or
b) Permit questioning in court

Unless satisfied that reasonable grounds that instructions were inaccurate or incomplete.

Written report is protected by legal professional privilege = need not be disclosed to other side.

Question 13

Discussions between experts

The court may direct a discussion between experts requiring the experts to –

Answer 13

1) Identify and discuss the expert issues in proceedings; and
2) Reach an agreed opinion

The court may direct that discussion with experts, they must prepare a statement setting out the issues they agree and disagree with summary of reasons for disagreeing.

Question 14

If the court directs a discussion between experts what happens to the content of the discussion?

Answer 14

Content of discussion shall not be referred to at trial unless parties agree.

Where experts reach agreement during discussions, the agreement shall not bind the parties unless parties expressly agree to be bound by agreement.

Question 15

Consequence of failure to disclose expert’s report

Answer 15

A party who fails to disclose an expert’s report may not use the report at the trial or call the expert unless given permission.

Question 16

Expert Evidence—General Requirements

Expert evidence should be uninfluenced by the pressures of litigation.

Experts should make it clear—

Answer 16

1. when a question/issue falls outside their expertise; and
2. when they are not able to reach a definite opinion

Question 17

What happens if: If an expert’s view changes on any material matter

Answer 17

it should be communicted to all the parties without delay, and when appropriate to the court.

Question 18

In what type of claim is permission to be given for a fixed cost medical report?

Answer 18

soft tissue injury claim,

Question 19

In a soft tissue injury claim, where permission is given for fixed cost medical report, the first report must

Answer 19

be obtained from an accredited medical expert selected via the MedCo Portal.

Cost of further report.

Question 20

The Court MAY direct party with access to info not reasonably available to other party, to serve that doc. The doc MUST include

Answer 20

sufficient details of facts, tests, experiments and assumptions to enable party to proper interpret and assess the significance.

Question 21

Is cross examination of experts on content of instructions allowed?

Answer 21

NOT allowed unless court permits or party who gave instructions consents.

Question 22

Before giving permission for an expert to be cross examined on contents of instructions, the court MUST be satisfied:

Answer 22

reasonable grounds to consider statement in report of substance of the instructions is inaccurate or incomplete. If satisfied = allow cross-examination where it appears to be in the interests of justice.

Question 23

Form and Content of an Expert’s Report

Expert’s report should be addressed to the court and not to the party!!!

An expert’s report must:

Answer 23

1. details of expert’s qualifications;
2. details of literature or other material relied on;
3. contain a statement setting out the substance of all facts and instructions;
4. make clear which of the facts stated in the report are within the expert’s own knowledge;
5. say who carried out any examination, measurement, test or experiment, give qualifications, and say whether test/ experiment carried out under expert’s supervision;
6. range of opinion—
7. summarise range; and
8. give reasons
9. summary of conclusions;
10. if not able to give an opinion without qualification, state the qualification; and
11. contain statement that the expert—
12. understands their duty to the court, and has complied; and
13. is aware of the requirements of Part 35,

An expert’s report must be verified by SoT.

Question 24

Questions to Experts

Where party sends written questions, what else must be sent?

Answer 24

copy MUST at same time be sent to other party.

Party instructing MUST pay fees charged by expert for answering questions = this doesn’t affect decision of court as to who ultimately bears expert’s fees.

Question 25

Single joint expert

When considering whether to give permission for parties to rely on expert evidence + if SJE court considers all the circumstances –

Answer 25

1. proportionate to have separate experts, reference to
   
   1. the amount in dispute;
   2. the importance to the parties; and
   3. the complexity of the issue;
2. instruction of SJE likely to assist and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts;
3. expert evidence is to be given on the issue of liability, causation or quantum;
4. the expert evidence falls within a substantially established area of knowledge unlikely to be in dispute or range of expert opinion;
5. party already instructed an expert
6. written questions likely to remove need for the other party to instruct an expert
7. questions put to SJE may not conclusively deal with all issues
8. a conference may be required making instruction of a SJE impractical; and
9. a claim to privilege makes the instruction of any expert as a SJE inappropriate.

If court makes direction, unless parties agree – court MAY select expert from list submitted by parties. Once selected, each party may give instructions.

Question 26

Purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues, identifying—

Answer 26

• (i)the extent of the agreement;
• (ii) disagreement;
• (iii)action, and
• (iv)any further material issues not raised and the extent to which these issues are agreed.

Question 27

Where experts meet, parties must discuss and if possible, agree whether an agenda is necessary, + attempt to agree. Agenda must not be in the form of

Answer 27

leading questions or hostile in tone.

Question 28

Can the parties, or legal reps attend experts’ discussions?

Answer 28

Unless ordered by the court, or agreed by all parties,and the experts, neither the parties nor their legal representatives may attend experts discussions

Question 29

If the legal representatives attend the experts’ discussions, the legal reps obligations are:

Answer 29

• (i)they shouldn’t intervene in the discussion, except to answer, or advise on the law; and
• (ii) experts may hold part of their discussions in the absence of the legal representatives.

Question 30

Individual copies of thestatement of truth must be signed by expert at conclusion of discussion.

What is the time-limit for this?

Answer 30

as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.

Experts must give their own opinions + don’t require authority of parties to sign joint statement.

Question 31

What if after an expert discussion, an expert changes his mind?:

Answer 31

If expert significantly alters an opinion = joint statement must include a note or addendum explaining

Question 32

Primary rule with experts:

Answer 32

no party may call an expert or put in evidence an expert’s report without the court’s permission. In deciding whether to grant permission, and if so, to what extent, the court will seek to restrict expert evidence to that which is reasonably required to resolve the proceedings.

NOT the function of the expert to give their opinion on issues of law or fact which the judge has to decide.

Question 33

Expert evidence held not to be necessary:

Answer 33

1. hypothetical situations
2. Finance and banking

Question 34

Duties and responsibilities of experts

Permission to call expert to testify or put in evidence an expert’s report may be given in

Answer 34

the court’s own case management directions or in response to an application.

Question 35

The requirement to obtain court’s permission cannot be circumvented by

Answer 35

seeking to adduce expert evidence within or annex to a witness statement.

Question 36

Test for permission to adduce expert evidence

Answer 36

Burden lies on the party seeking to adduce expert evidence to persuade the court that it will assist.

Question 37

For EE to be admissible, the EE must be:

Answer 37

1. contained within a recognised body of expertise governed by recognised standards; and
2. of such a nature that a person without instruction or experience would not be able to form a sound judgement.

Question 38

When must the EE’s admissibility be assessed?

Answer 38

assessed at an early case management stage of proceedings.

Question 39

What are the three questions in assessing whether to permit the EE?

Answer 39

1. is the expert evidence necessary to decide the issue, rather than merely helpful?
   
   1. If yes – should be allowed
2. If not necessary, will it assist the judge in determining an issue
   
   1. If yes consider step 3
3. If expert evidence on that issue was reasonably required to determine the proceedings.

Question 40

If an expert is unavailable, what happens?

Answer 40

a different expert should be instructed – should rarely be sufficient grounds to vary case management direction or trial dates or grant adjournment.

Question 41

Can a judge prefer evidence of a witnes of fact over the expert witness?

Answer 41

yes

But judge must give sufficient reasons - failure = may be grounds for appeal.

Where expert witness disregards their duty to the court = court MAY rule party may not rely on that expert’s evidence, even if they lose their action.

Question 42

If experts provide evidence on the “ultimate issue” in proceedings are they bound?

Answer 42

No

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Expert evidence may only be adduced with the court’s permission.

The court can exclude evidence that would otherwise be admissible.

Question 43

Obtaining further expert evidence

Where parties give joint instructions to SJE, if one is unhappy with the report, what can they do, and how?

Answer 43

where their reasons are not fanciful such permission to get another report may be granted. But it may be clarified on written questions.

Where courts have given permission for another expert report, the court decides what evidence should be called at trial. This decision should not be made until there has been a meeting between the parties.

Question 44

Where a party has disclosed an expert report, who can use it?

Answer 44

Anyone

NOT necessary for party to seek permission to rely upon an expert’s report which has been disclosed by a party who had ceased to be involved in proceedings, even though the court had not given specific permission for the remaining parties to rely upon those reports, but the party seeking to so rely should advise the other remaining parties which reports they intended to rely upon and for what purpose.

Where an expert person is called as a witness, his opinion shall be admissible.

Question 45

Expert’s right to ask court for directions

Experts may

Answer 45

file written requests for directions for the purpose of assisting them in carrying out their functions.

Question 46

Expert’s right to ask court for directions

Experts must, unless otherwise ordered, provide copies of requests for direction to the party instructing them, at least:

Answer 46

7 days before they file the request; and all other parties, at least 4 days before they file them.

Question 47

The court, when giving directions, MUST THEY OR MAY THEY direct a party to be served with a copy?

Answer 47

may

Question 48

Assessors

Where the court appoints an assessor, the court may direct an assessor to:

Answer 48

1) Prepare a report for the court on an issue; and
2) Attend the whole or any part of trial and advise.

The remuneration to be paid to an assessor will be determined by the court and will form part of the costs.

The court may order any party to deposit in court office a specified sum, assessor’s fees and where it does so, the assessor will not be asked to act until the sum has been deposited.

It is not necessary conclusive the parties will pay for the assessor.

Question 49

When is a lay opinion inadmissible?

Answer 49

Inadmissible IF NOT QUALIFIED, except to convey complex facts PERSONALLY perceived by him.

Question 50

Requirements for admission of expert evidence

For expert evidence to be admissible in civil proceedings:

Answer 50

1. Expert evidence must be reasonably required
2. Recognised area of expertise
3. Expert suitably qualified
4. Expert independent and impartial
5. Court permission and compliance with court directions

Question 51

Reasonably required

A party can only use expert evidence on:

Answer 51

technical points outside the ordinary experience of the tribunal of fact.

Question 52

Test for EE in relation to “reasonably required”:

Answer 52

1. Expert evidence should be allowed if it is “necessary” rather than merely helpful
2. If not strictly “necessary”, will it assist the judge?
3. If will assist, is it “reasonably required” to determine the proceedings? This involves applying proportionality, balancing:

• value of the claim
• cost of the expert evidence
• any delay / effect on trial date in obtaining the expert evidence

Question 53

Is an experts interpretation of commericla contracts admissible?

Answer 53

no

• this is a question of law for the judge

Question 54

Is an experts interpretation on the credibility of witnesses (even children) admissible?

Answer 54

no

Question 55

Is an experts interpretation on hypotetical questions on what the expert would have done admissible?

Answer 55

no

Question 56

?What does Reliable body of expertise for EE mean

Answer 56

Reliable body of expertise

There must be an “acknowledged” or “reliable” or “recognised” body of expertise governed by “established” rules and principles.

Question 57

What does: Expert suitably qualified

mean?

Answer 57

The witness put forward by the party seeking to rely on expert evidence must be suitably qualified to give expert testimony on the subject

• Typically with experience and qualifications
• An expert cannot give expert evidence outside their area of expertise

Question 58

What does an expert’s independence mean?

Answer 58

Requirement of independence and impartiality is of admissibility** rather than **weight of evidence.”

A party and an expert being members of the same set of chambers: not independent.

Contrast IN ONE CASE - A surveyor employed by the Council: lack of independence only went to weight. The expert was still impartial.

Question 59

When should a party ask for an expert?

Answer 59

Should be sought at: Directions Questionnaire / on first CMC. Failing to obtain a direction granting permission to call expert evidence until shortly before trial will probably result in refusal of permission.

Question 60

Rules on Experts After Proceedings Begin

Directions

) No party may call an expert or put in evidence an expert’s report without

Answer 60

the court’s permission.

Question 61

Restricting the cost of expert evidence

Expert evidence shall be restricted to that which is

Answer 61

reasonably required

Question 62

When parties apply for permission they must provide

Answer 62

an estimate of the costs of the proposed expert.

Question 63

In whiplash soft tissue injury personal injury fast track claims, the orthopaedic report must be

Answer 63

fixed cost report.

Question 64

Seeking Permission for Experts

When applying for permission they must provide an estimate of the costs and identify

Answer 64

(a) the field; and
(b) where practicable, the name

Question 65

Case Management Directions about Experts

Case management directions on experts are essential dealing with:

Answer 65

1. Whether expert evidence allowed
2. Whether experts will attend trial, or rely on experts’ reports
3. Whether parties can instruct their own experts or SJE
4. Disclosure of reports

Question 66

Multi-track expert directions

At a____________he court is likely to consider ‘what expert evidence is reasonably required in accordance and how and when that evidence should be obtained and disclosed’.

Answer 66

CMC

Question 67

When considering multi-track directions on its own initiative the court’s general approach is:

Answer 67

• give directions for SJE unless there is a good reason
• direct disclosure of simultaneous exchange of experts’ reports if SJE not required
• if experts’ reports are not agreed = direct a discussion between experts and the preparation of a statement

Question 68

Criteria for deciding on use of SJE

When considering whether to give permission for parties to rely on expert evidence + whether SJE, court considers whether:

Answer 68

(a) proportionate to –
(i) the amount in dispute;
(ii) the importance to the parties; and
(iii) the complexity of the issue;
(b) instruction of SJE is likely to assist the parties + court to resolve issue more speedily and cost effective.

Question 69

SJE contrasted with Jointly Selected Expert

Differences:

Answer 69

Single Joint Expert

A SJE instructed to prepare a report for the court on behalf of 2 or more parties (including the claimant). Being jointly instructed means:

• Both parties send instructions to the expert
• Both contribute to the expert’s fees
• Both parties should be sent the report by the expert

Jointly Selected (or Agreed Expert)

• Opponent involved in choosing the expert (from a list of potential experts sent by the Instructing Party)
• Instructing Party alone sends instructions to the expert
• And pays
• Expert sends the report to the Instructing Party (only)

Small claims and fast track: preference for SJE

Question 70

Obtaining own expert after SJE’s report

TEST:

Answer 70

• court may grant permission) to rely on a new expert
• where the objections to the SJE’s report are not fanciful [or “good reasons”]
• and not capable of being cleared up by answers to written questions
• especially where a substantial sum is in dispute
• whether refusing may be unjust having regard to the overriding objective
• having regard to any delay by the applicant
• discouraging “expert shopping”
• more likely to grant permission if the expert is not impartial

Question 71

Duties on experts

(7)

Answer 71

1 Uninfluenced

2 Never assume the role of an advocate.

3 State the facts or assumptions

4 Make clear if outside their expertise.

5 Insufficient data

6 Changes their view = communicate this

7 Where expert evidence refers to photographs, plans, calculations, analyses, measurements survey reports = provide to other side at exchange of reports.

Question 72

Without prejudice discussions between experts

The court may, at any stage, direct a discussion between experts, purpose:

Answer 72

(a) identify and discuss the expert issues in the proceedings; and
(b) where possible, reach an agreed opinion on those issues.

Purpose is to agree and narrow the expert issues: not to settle the case.

Parties must seek to agree an agenda for the expert discussion.

Question 73

Where experts reach agreement on an issue during their discussions, the agreement

Answer 73

shall not bind the parties unless the parties expressly agree to be bound by the agreement.

Question 74

What is hte ultime issue rule?

Answer 74

Common law: experts were not allowed to give an opinion on the very issue that the court had to decide. For example, saying D was negligent.

This was abolished!!!

What carries weight is the expert’s reasoning, not the conclusion.

• Mere assertion carries no weight.
• The judge must apply their own mind to the expert’s conclusions.

Question 75

Legal Professional Privilege: Experts’ Reports

Before Exchange / Disclosure

Principle:

Answer 75

• When obtained = expert’s report will be confidential document produced for the dominant purpose of giving or receiving legal advice relating to litigation which is at least contemplated.
• Therefore it is protected by litigation privilege

Drafts of an expert’s report = privileged, + disclosure of final version doesn’t waive privilege in earlier drafts.

Question 76

Legal Professional Privilege: Experts’ Reports

After Disclosure

Principle:

Answer 76

If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all parties without delay, and when appropriate to the court.

Question 77

Expert Evidence at Trial

Small claims and Fast Track: test for live expert evidence

Answer 77

court NOT direct expert to attend hearing unless necessary in interests of justice.

Question 78

It might be appropriate to order attendance of a SJE for cross-examination where

Answer 78

• the expert delivers his report shortly before the trial, or
• the expert has not considered all the written questions put to him.

Question 79

Separately instructed experts

Do both experts have to attend live trial?

Answer 79

Often both have to attend trial to resolve conflicts, unless this has been resolved by without-prejudice discussions between the experts.

Question 80

Use of other side’s report at trial

Where a party has disclosed expert’s report, can the other party use it?

Answer 80

may use that expert’s report as evidence at the trial.. This is an absolute right to use such a report, untrammelled by any discretion.

• No need for permission to use the expert’s report previously disclosed by a party who was no longer involved in the proceedings.
• Should notify the other parties that you want to rely on such a report

Question 81

What is the weight

Weight of Expert Evidence at Trial

Answer 81

A judge may depart from it only in exceptional circumstances and after fully explaining the reasons

Judge must give supportable reasons for preferring one expert over another.

A judge can prefer lay factual witnesses over expert evidence, but must give reasons to justify that view.

A judge is not permitted to substitute his own experience over the evidence of an expert on a matter requiring expertise (the reaction time of a child if they had heard D sounding his car horn).

A judge must not “develop his own theory” on a defective building claim without re-calling the experts.

The parties must be given the opportunity to XX the expert on views expressed by the expert.