2. Expert Evidence Flashcards
Principal issues in relation to adducing expert evidence
1 - is the evidence admissible according to the law of evidence
2 - Even if admissible, does it constitute expert evidence within the meaning of CPR 35
3 - Is it reasonably required to resolve the proceedings for the purposes of r.35.1
Admissibility of Expert evidence
Expert evidence constitutes an exception to the general rule that only evidence of fact may be adduced
An experts opinion on any relevant matter, which includes an issue in the proceedings in question, on which they are qualified to give expert evidence shall be admissible in evidence
A statement of opinion on any relevant matter on which a person 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.
Four considerations which govern the admissibility of expert evidence?
- whether it will assist the court in its task. 2. whether the expert has the necessary knowledge and experience. 3. whether the expert is impartial in their presentation and assessment of the evidence. 4. whether there is “a reliable body of knowledge or experience to underpin the expert’s evidence.”
Expert’s overriding duty
Is to the court.
Court’s powers in relation to expert evidence
NO party may call an expert or put in evidence an expert’s report without the court’s permission.
When a party applies for permission they must provide
An estimate of the costs of the proposed expert evidence and identify the field of expertise and issues that need to be addressed, and where practicable - the name of the proposed expert.
General form of expert evidence
Expert evidence is to be given in a written report unless the court directs otherwise.
Written questions to experts
A party may put written questions about an expert’s report to the expert instructed by another party OR a SJE appointed under 35.7. Questions can only be put once, must be put within 28 days of service of the expert’s report, and must be for the purpose of clarification of the report unless the court gives permission or the other party agrees.
Court’s power to direct evidence is given by SJE
Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.
Instructions to SJE
Any relevant party can give instructions to the SJE. When a party gives instructions to the expert, that party must, at the same time, send a copy to the other relevant parties.
Payment of experts fees and expenses
The court may give directions about payment of experts fees and expenses AND any inspection, examination, or experiment which the expert wishes to carry out. Unless the court otherwise directs, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses.
Discussions between experts
The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to— (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues.
statement from expert discussion
Dealing with the purpose/outcome of discussions must be signed by experts at the very latest within 7 days. Copies must be provided to parties no later than 14 days after signing.
Failure to disclose expert report
A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.
Experts right to ask court for directions
Experts may file written requests for directions for the purpose of assisting them in carrying out their functions. Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions (a) to the party instructing them, at least 7 days before they file the requests; and (b) to all other parties, at least 4 days before they file them.
Cross-examination of experts on the contents of their instructions
Cross-examination of experts on the contents of their instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents). Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report or the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice.
Judicial assessment of expert evidence
A judge is entitled to prefer the evidence of a witness of fact to that of an expert witness, but should give reasons justifying that preference. A judge has to give sufficient reasons for preferring the evidence of one expert to another expert. Failure to do so may be valid grounds for an appeal and for remitting the case back for a re-trial.
Experts and matters that are central to the outcome of the case
Experts may provide evidence on matters that are central to the outcome of the case, including the “ultimate issue”. They may not, however, determine such issues. It is for the court, on the balance of probabilities, to determine such issues based on all the evidence before it.
Expert evidence in small claims
In small claims, expert evidence is unnecessary in the ordinary case in respect of second-hand car valuations because published and reputable valuation guides are sufficient.
Expert evidence from periods proceedings
Where a party seeks to rely on expert evidence adduced in previous proceedings, they may seek to do so as hearsay evidence. In such a circumstance the court retains a discretion under CPR r.32.1(2) to exclude it, although it should be slow to do so. It could, however, be properly excluded before trial if to permit a party to rely on it would lead to disproportionate cost.
Test for permission to adduce expert evidence
The burden lies on the party seeking to adduce expert evidence to persuade the court that it will assist the court.
Changing expert
Court has general discretion to permit a party to change expert. Usual rule is that the court should not refuse a party’s request to change expert. The court has the power to give permission on condition that the original expert’s reports, containing the substance of the expert’s opinion, are disclosed to the other parties and such condition will usually be imposed.
Obtaining further expert evidence to that of SJE
If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.
Calling experts to give oral evidence is a last resort
Due to its expense, calling experts to give oral evidence should be considered a last resort.
