20. Expert Evidence

Question 1

What are the three principle issues raised by expert evidence?

Answer 1

1. Is it admissible (including whether it is relevant)
2. Does it constitute expert evidence for the purposes of Part 35?
3. Is it reasonably required to resolve the proceedings for the purposes of 35.1?

Question 2

What elements of the CPR are engaged when considering whether to allow in expert evidence?

Answer 2

35.1 (duty to restrict to that reasonably required), 35.4 (the power to restrict expert evidence), and the overriding objective

Question 3

What is the basic basis for expert evidence to be allowed?

Answer 3

1. Whether they are called to give an opinion on a relevant matter; and
2. Their qualifications are such that it would be an “expert” opinion

Question 4

What are the four considerations governing the admissibility of expert evidence?

Answer 4

1. 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 evidence
4. Whether there is a reliable body of knowledge or experience to underpin the expert’s evidence

Question 5

If an expert fails to be impartial, could that impact on the admissibility of the evidence they give?

Answer 5

Yes, it may render it inadmissible.

Question 6

In terms of the four considerations, do they apply equally to expert evidence of fact or expert opinion evidence?

Answer 6

Yes.

Btw, expert evidence of fact would include observable facts (i.e. what happens when someone deletes something off of a hard drive is…) rather than expert opinion (such as “it is my opinion that he did delete it as…”)

Question 7

Is expert evidence as to credibility or reliability of a witness admissible?

Answer 7

No it is generally inadmissible.

Question 8

Is expert evidence admissible?

Answer 8

Yes, it constitute an exception to the rule that only evidence of fact may be adduced.

Question 9

Is evidence of opinion admissible other than for experts?

Answer 9

Yes, but only as evidence of what they perceived from facts personally perceived by them.

Question 10

Is expert evidence is allowed in small claims?

Answer 10

Yes but only with the permission of the court

Question 11

Can experts give evidence on the matter central to the outcome of the case (“ultimate issue”)?

Answer 11

Yes.
They may not determine such issues, however. It is for the court to determine it.
A court should not consider itself bound by the conclusion of the expert.

Question 12

What is the central restriction on expert evidence?

Answer 12

It is restricted to that which is reasonably required to resolve the proceedings.

This is the key test on whether expert evidence should be admitted.

Question 13

What is the particular consideration of whether expert evidence is reasonably required in small claims?

Answer 13

Expert evidence is unnecessary in the ordinary case of second-hand car valuations as there are published and reputable valuation guides.

Question 14

What principles are applicable as to whether to allow a late application for expert evidence?

Answer 14

Overriding objective is of the greatest importance.
Need to strike a balance between injustice to the applicant and injustice to respondents.
There is a heavy burden on a party seeking a late amendment ot show the strength of the new case and why justice requires him to be able to pursue it.
Needs to be a good explanation for the delay
Strict view is taken with non-compliance
Need to also think about any knock-on effects to other litigants
If seeking to re-open after judgment:
1. The strength of the evidence could be considered
2. The overriding objective is not simply about reaching the allegedly correct decision
3. Trying to relitigate after making a tactical choice to not have an expert is also relevant

Question 15

Can a judge prefer non-expert evidence of fact?

Answer 15

Yes, if someone was there then they can but they should give reasons justifying that preference

Question 16

Where there are two experts and the judge prefers one expert’s evidence over the other’s, what should he do?

Answer 16

He should give reasons for the preference

Question 17

Where there are two experts and the judge prefers one expert’s evidence over the other’s and he fails to give reasons for that preference, what may be the consequences?

Answer 17

This may be valid grounds for appeal and for a re-trial

Question 18

What particular consideration is there as to whether to allow expert evidence for computer science?

Answer 18

Permission can be refused on the basis that the issues in dispute were purely factual

Question 19

Who is an “expert” (this question is not about what qualifies them) for the purposes of part 35?

Answer 19

A person who has been instructed to give or prepare expert evidence for the purpose of proceedings

Question 20

What is a “single joint expert” for the purposes of part 35?

Answer 20

An expert instructed to prepare a report for the court on behalf of two or more of the parties

Question 21

What does the expert owe to the court?

Answer 21

A duty to help the court on matters within their expertise

Question 22

Does the expert’s duty to the court override any obligation to the person paying for/giving instructions to the expert?

Answer 22

Yes.

Question 23

What duties and responsibilities do experts have?

Answer 23

1. Expert evidence should be and should be seen to be an independent product of the expert uninfluenced by the litigation
2. Experts should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise.
3. An expert witness should never assume the role of an advocate (breaches are often to the detriment of the party instructing them)
4. An expert witness should state the facts or assumptions on which their opinion is based
5. Experts should not omit to consider material facts which could detract from their concluded opinion
6. An expert witness should make it clear when they do not have the expertise for a question (though they may have to draw upon skills outside of their expertise and this is ok)
7. If an expert’s opinion is made with insufficient data as insufficient data are available then the expert should make it clear to the court that their opinion is a provisional one.
8. If the expert could not assert that his report contains the truth, the whole truth, and nothing but the truth, then this should be contained in the report.
9. If, after exchange of reports, an expert witness changes their view such change of view should be communicated to the other side through a legal rep without delay and when appropriate to the court.
10. Where the evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at exchange of report time (only where the opposite party does not already have these)
    These duties extend to the whole of the evidence, not only that which is helpful to the side they are instructed by
    The expert should not let personal disagreements distract them from their duty to the court

Question 24

What points are given to experts and those instructing them to consider?

Answer 24

1. Experts of like discipline should have access to the same material
2. It is not for an independent expert to indicate which version of the facts they prefer
3. Experts should not take a partisan stance in relation to interim applications
4. The process of experts meeting and producing an agreement is governed by the CPR, including the overriding objective, and should be constructive and co-operative.
5. Should material emerge close to the trial that such an expert considers that further analysis, consideration, or testing is required, his or her opposite number should be notified ASP. Only in exceptional circumstances rendering it unavoidable should an expert produce a further report taking the other side by surprise
6. The principles in The Ikarian Reefer should be adhered to

Question 25

How adaptable to new ways of working does the court expect experts to be?

Answer 25

Quite, they should exhibit a degree of readiness to use imaginative and innovative methods or working and to acquire such skills needed for that.

Question 26

What should the expert be familiar with?

Answer 26

Their duties and responsibilities to the court e.c.t.

Question 27

What must a party get to call an expert or put in evidence an expert’s report?

Answer 27

The court’s permission

Question 28

When parties apply for permission to rely upon or call an expert, what must they do?

Answer 28

1. They must provide an estimate of the costs;
2. Identity the field in which expert evidence is required and the issues they will address; and
3. Identify the name of the proposed expert where possible

Question 29

Where permission for an expert is granted, what should that permission extend to and what should be contained within the order?

Answer 29

That permission should extend only to either the expert named or the field identified.
The order granting permission may specify the issues which the expert evidence should address.

Question 30

Where permission is given for an expert on the small claims track, what is the normal order?

Answer 30

Such permission will normally be given for evidence from only one expert on a particular issue

Question 31

What may the court do in respect of a party’s expert’s fees and expenses if permission for an expert is granted?

Answer 31

It may limit the amount that may be recovered from any other party

Question 32

When (at what stage) may the court give permission to call an expert to testify or for an expert report to be put into evidence?

Answer 32

In the court’s own case management directions or in response to an application by a party

Question 33

What should the court do at an early stage in respect of parties’ and their intentions to call expert evidence?

Answer 33

Prompt the parties to consider their intentions regarding the use of such evidence.

Question 34

Can the requirement for permission for expert evidence be circumvented by putting expert evidence within or as an annex to a witness statement?

Answer 34

No.

Question 35

Where a challenge to jurisdiction is in dispute, using what method should parties try to put in a foreign law expert’s opinion?

Answer 35

Pursuant to part 35.4, rather than as a witness statement.

Question 36

Where a challenge to jurisdiction is in dispute, what should the court approve in respect of a foreign law expert?

Answer 36

Approve a list of issues to be addressed by them at te very latest before the applicant’s initial report.

Question 37

On applications for security for costs where jurisdiction is an issue, does expert evidence as to foreign law need to be given under part 35?

Answer 37

No.

Question 38

Is permission required for an expert where they are not instructed by parties to the proceedings?

Answer 38

Not under part 35. For example, where they seek to adduce previous expert evidence from previous proceedings, they may seek to do so as hearsay evidence.
It should generally allow a party to rely on such evidence, unless it would lead to disproportionate costs.

Question 39

What is the test for getting permission for expert evidence and who is that burden on?

Answer 39

The test is whether it would assist the court and is reasonably required to resolve the proceedings, and it is on the party seeking to adduce it.
Should be approached considering the overriding objective
Expert evidence is prima facie admissible where:
1. There is an acknowledged body of expertise governed by recognised standards and rules of conducts and
2. Which is pertinent to an issue to be decided by the court
But the court still retains a discretion to exclude where it would not help the determination of the issues

Question 40

What is the three-stage test to determine whether expert evidence should be permitted on any specific issue?

Answer 40

1. Is expert evidence necessary to decide an issue rather than merely helpful? If yes, it should be allowed
2. If it is not necessary, will it assist the judge in determining an issue? If yes, the court should then consider:
3. If expert evidence on that issue was reasonably required to determine the proceedings (consideration should be had to the value of the claim and proportionality, the effect of a judgment, the cost and who will pay, any delay caused or trial date lost, and whether it goes to more than one issue)

Question 41

Is there a different regime considering experts where questions surround EU law?

Answer 41

No it is the same as the domestic approach.

Question 42

Where a party has been refused an expert and is later awarded damages, is it open to them to appeal the extent of the damages on the basis that no expert was granted?

Answer 42

No, as that would be a collateral challenge.

Question 43

Does the pre-action protocol require a medical expert selected in accordance with that protocol to be jointly instructed or her report to be disclosed to the defendant?

Answer 43

No, those reports remain privileged though the claimant will need permission before relying on any other report

Question 44

Is there a difference between obtaining a medical report pre-protocol and during the protocol?

Answer 44

Yes, if obtained pre-protocol the party does not need to disclose this report

Question 45

What principles are there surrounding a party changing expert evidence?

Answer 45

1. The court has a general discretion to allow this, pursuant to part 35.4 or part of its case management powers
2. Such discretion should be exercised having regard to all circumstances of the case and the overriding objective
3. The usual rule is that the court should not refuse a party permission to rely on a new expert in substitution for an existing one
4. The court has the power to give any changing permission on the condition that the original expert’s reports, containing the substance of the opinion are disclosed to the other parties and such a condition will usually be imposed.
5. The justification for the practice in paragraph 4 is that it prevents expert shopping and that the expert’s contribution is available to all parties and the court
6. The court’s power may extend to other documents containing the substance of the original expert’s opinion but the court must be cautious about encroaching upon areas of privilege and must consider carefully the potential value of such other documents. In particular, there must be a strong case to justify the disclosure of solicitors’ attendance notes.

Question 46

Can the condition to disclose the first report as a pre-condition of getting a second report be made where the first report was made pre-issue but during pre-action?

Answer 46

Yes.

Question 47

What is relevant to what conditions the court may impose for changing experts?

Answer 47

How close it is to being flagrant expert shopping and instead whether it is merely that the expert is just unavailable for illness/retirement

Question 48

Where a party obtains permission for an expert report and the opponent to that later finds out the party did not disclose that there is a previous report, can the court order the previous report to be disclosed?

Answer 48

No. there is no vehicle for doing so.

Question 49

Where a party makes a without notice application in a CCMC to change the expert it had relied upon throughout, what duty is that party under?

Answer 49

To disclose all relevant facts, remind the court on the law on changing experts, and remind the court that if there was even a hint of expert shopping the usual order to be to grant permission conditional on the disclosure of the first expert’s evidence.

Question 50

What are the requirements on instructing experts in the PAP for low value personal injury claims in RTAs in terms of whether the defendant should be involved in the choice of expert?

Answer 50

There is no requirement to involve the defendant insurer in the choice of expert.

Question 51

What are the requirements on instructing experts in the PAP for professional negligence/the PAP for construction and engineering in terms of whether the defendant should be involved in the choice of expert?

Answer 51

It encourages parties to co-operate when deciding on appropriate expert specialisations, whether experts can be instructed jointly, and whether any reports obtained pre-action might be shared.

Question 52

What are the requirements on instructing experts in the PAP for housing disrepair in terms of whether the defendant should be involved in the choice of expert?

Answer 52

It encourages joint selection and instruction of an expert

Question 53

What is the general requirement for the form on which expert evidence is to be given in?

Answer 53

It is to be given in a written report unless directed otherwise

Question 54

Will an expert be required to attend a claim on every track?

Answer 54

No, NOT on the small claims track/fast track unless necessary to do so in the interests of justice

Question 55

May a party put written questions about an expert’s report obtained by another party/as a SJE?

Answer 55

Yes, they may ask written questions

Question 56

What must any questions about an expert’s report be?

Answer 56

Proportionate

Question 57

What restrictions are there on questions about an expert’s report?

Answer 57

1. They must be proportionate
2. Written
3. They may be put once only
4. Must be put within 28 days of service of the report and
5. Must be for the purpose only of clarification of the report, unless in any case:
   a. The court gives permission; or
   b. The other party agrees

Question 58

By when should questions about an expert’s report be made?

Answer 58

Within 28 days of service of it.

Question 59

How are an expert’s answers to questions treated?

Answer 59

As part of the report itself

Question 60

What happens where an expert for another party does not answer a question asked following their report?

Answer 60

The court may order either or both of the following:
1. The party may not rely on the evidence of that expert; or
2. The party may not recover the fees and expenses of the expert from any other party

Question 61

Instead of instructing two separate experts, what may the court order?

Answer 61

A single joint expert

Question 62

What may the court do where both parties cannot agree who should be the single joint expert?

Answer 62

The court may:
1. Select the expert from a list prepared or identified by the parties; or
2. Direct that the expert be selected in such other manner as the court may direct.

Question 63

Where a party is unhappy with the single joint expert’s report, may they be permitted to instruct another expert to see whether they should challenge the SJE’s report?

Answer 63

1. The correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue.
2. If the reasons the party wishes to have another expert’s opinion are not fanciful, they should, subject to the discretion of the court, be permitted to obtain that evidence.
3. In cases where another report would be disproportionate, the likely best outcome is that the party is permitted to put a question to that expert.
4. In a case involving a substantial sum, the position is that a joint report should be obtained but if there is a disagreement and questions put do not resolve it, then a party who obtains their own expert’s report should cause their experts to meet. If they do not agree, they may have to be called but this is a last resort
5. The decision whether or not to grant permission is a fact sensitive one looking at achieving overall justice to the parties and having regard to the overriding objective.
6. An application could be refused as a party’s case may have no prospect of success

Question 64

Who gives instructions to an SJE?

Answer 64

Any relevant party can.

Question 65

Where a party gives instructions to an SJE, what must they do?

Answer 65

Send a copy to the other relevant parties

Question 66

What directions may the court make about the SJE?

Answer 66

1. The payment of the fees and expenses; and
2. Any inspection, examination or experiments which the expert wishes to carry out

Question 67

What may the court do before an SJE is instructed?

Answer 67

Limit the amount that can be paid by way of fees and expenses; and
Direct that some or all of the relevant parties pay that amount into court

Question 68

Who is liable for the SJE’s fees?

Answer 68

Unless directed otherwise, the relevant parties are jointly and severally liable

Question 69

Can the court direct a party to provide information?

Answer 69

Yes, where a party has access to information which is not reasonably available to another party, the court may direct that party to:
a. Prepare and file a document recording the information and
b. Sever a copy of that document on the other party

Question 70

What requirements must the expert’s report comply with?

Answer 70

PD35:
1. Give details of their qualifications
2. Give details of any literature or material which has been relied on in making the report
3. Contain a statement setting out the substance of all facts and instructions material to the opinions expressed in the report
4. Make clear which of the facts state in the report are within the expert’s own knowledge
5. Say who carried out any examination, measurement, test or experiment use in the report, and give the qualifications of that person, and whether it was carried out under their supervision
6. Whether there is a range of opinion on the matters dealt with in the report:
a. Summarise the range of opinions; and
b. Give reasons for the expert’s own opinion
7. Contain a summary of the conclusions reached;
8. If the expert is not able to give an opinion without qualification, state that qualification
9. at the end of the report there must be a statement that the expert understands and has complied with their duty to the court
10. contain a statement that the expert is aware of the requirements of part 35, pd35, and the guidance for the instruction of experts in civil claims 2014
and be verified by a statement of truth in the following form:

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

Question 71

Will a party’s instructions to an expert be privileged?

Answer 71

No, but the court will not, in relation to those instructions:
a. Order disclosure of any specific document; or
b. Permit any questioning in court, other than by the party who instructed the expert
UNLESS it is satisfied that there are reasonable grounds to consider the statement of instructions to be inaccurate or incomplete

Question 72

Where an expert’s report has been disclosed by one party, can another party make use of that report?

Answer 72

Yes.
No permission is needed, including where the report was obtained by a party no longer involve in the proceedings.
The party seeking to rely on other reports should advise the other remaining parties which reports they intended to rely upon and for what purpose.
A party cannot use another’s report where a claim has been ordered to be case managed and tried at the same time but are not formally consolidated.

Question 73

What may the court do regarding discussions between experts?

Answer 73

The court may direct a discussion between experts for the purpose of requiring the experts to:
1. Identify and discuss the issues in the proceedings; and
2. Where possible, reach an agreed opinion on those issues.
The court may specify the issues which the experts must discuss.

Question 74

What may the court direct is to happen following a joint discussion of experts?

Answer 74

For the experts to produce a statement for the court setting out those issues on which:
a. They agree; and
b. They disagree, with a summary of their reasons for disagreeing.

Question 75

Can the discussion between the experts be referred to at trial?

Answer 75

No, not unless the parties agree.

Question 76

Where the experts reach an agreement, will that agreement bind the parties?

Answer 76

No, not unless the parties expressly agree to be bound by that agreement.

Question 77

What is the consequence of a failure to disclose an expert’s report?

Answer 77

A party who fails to disclose an expert’s report may not use the report at the trail or call the expert unless the court gives permission

Question 78

What right does an expert have?

Answer 78

1. An expert has a right to file written requests for directions for the purpose of assisting them in carrying out their functions.

Question 79

Where an expert has field written requests for directions, what must they do?

Answer 79

Unless the court orders otherwise, they must provide copies of the proposed requests for directions:
a. To the party instructing them at least 7 days before filing the requests; and
b. To all other parties, at least 4 days before filing them.

Question 80

If the court gives direction on an expert’s requests, what may it also do?

Answer 80

It may also direct that a party be served with a copy of the directions

Question 81

Where a court directs a party to provide information, what must the document include?

Answer 81

Sufficient details of all the facts, tests, experiments, and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper interpretation of the information

Question 82

Will an expert be cross-examined as to their instructions?

Answer 82

This will not be allowed unless the court permits it or the party who gave the instructions consents

Question 83

What must the court be satisfied of before permitting a party to cross-examine on instructions?

Answer 83

That there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete.
Where satisfied, it will allow it where it appears to be in the interests of justice

Question 84

Who pays the expert’s costs when they answer a question on their report?

Answer 84

The party instructing the expert.
This does not affect any decision of the court as to the party who is ultimately to bear the expert’s fees

Question 85

What will the court consider when deciding whether to instruct separately or as an SJE?

Answer 85

When considering whether to give permission for the parties to rely on expert evidence and whether that evidence should be from a single joint expert the court will take into account all the circumstances in particular, whether:
(a) it is proportionate to have separate experts for each party on a particular issue with reference to –
(i) the amount in dispute;
(ii) the importance to the parties; and
(iii) the complexity of the issue;
(b) the instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts;
(c) expert evidence is to be given on the issue of liability, causation or quantum;
(d) the expert evidence falls within a substantially established area of knowledge which is unlikely to be in dispute or there is likely to be a range of expert opinion;
(e) a party has already instructed an expert on the issue in question and whether or not that was done in compliance with any practice direction or relevant pre-action protocol;
(f) questions put in accordance with rule 35.6 are likely to remove the need for the other party to instruct an expert if one party has already instructed an expert;
(g) questions put to a single joint expert may not conclusively deal with all issues that may require testing prior to trial;
(h) a conference may be required with the legal representatives, experts and other witnesses which may make instruction of a single joint expert impractical; and
(i) a claim to privilege(GL) makes the instruction of any expert as a single joint expert inappropriate.

Question 86

Where an order is made requiring an act to be done by an expert, what must the party instructing that expert do?

Answer 86

Serve a copy of that order on the expert.
For an SJE, the claimant must serve it.

Question 87

Are discussions between experts mandatory?

Answer 87

Unless directed by the court, no. However, parties should consider at an early stage whether a discussion is appropriate and, if so, when.

Question 88

What is the purpose of an experts’ meeting?

Answer 88

The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.

Question 89

Where the experts are to meet, what must the parties do?

Answer 89

1. Meet and discuss and if possible agree whether an agenda is necessary and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed.
2. The agenda must not be in the form of leading questions or hostile in tone.

Question 90

Can parties/legal reps attend expert discussions?

Answer 90

Unless the court orders otherwise or is agreed by all parties and the experts, no.

Question 91

If the legal reps do attend an experts meeting, what should they do/not do?

Answer 91

1. They must not normally intervene in the discussion, save to answer questions put to them or advise on the law; and
2. The experts may hold part of their discussions in the absence of legal reps

Question 92

What must be prepared following the expert discussion?

Answer 92

A statement dealing with:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.
Individual copies of the statements MUST be signed by the experts at the conclusion of the discussion or, in any event, within 7 days.
Copies of the statement must be provided to the parties no later than 14 days after signing.

Question 93

Do experts require authority from the instructing party to sign a joint statement?

Answer 93

No

Question 94

If an expert significantly alters an opinion, what must the joint statement contain?

Answer 94

A note or addendum by that expert explaining that change