5.1 Expert evidence

Question 1

Which Part of CPR deals with expert evidence?

Answer 1

CPR 35 - Experts and Assessors

Question 2

What is the general rule on opinions of witnesses?

Answer 2

They are not admissible.

Question 3

What are the exceptions to the general rule against admitting the opinions of witnesses?

Answer 3

Section 3 Civil Evidence Act 1972

(1) expert witnesses;
(2) perceived facts (eg, he was drunk).

Question 4

What is the court’s duty with regard to controlling expert evidence?

Answer 4

CPR 35.1

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

Question 5

What must a party do to adduce expert evidence?

Answer 5

CPR 35.4

Apply to the court for permission.

Question 6

Which Rule gives the court control over the evidence generally?

Answer 6

CPR 32.1

Question 7

What are the restrictions on adducing expert evidence in the fast track?

Answer 7

CPR 26.6(5)(b)
oral expert evidence at trial will be limited to—
(i)
one expert per party in relation to any expert field; and
(ii)
expert evidence in two expert fields.

Question 8

What is the first duty of an expert witness?

Answer 8

CPR 35.3
(1)
It is the duty of experts to help the court on matters within their expertise.
(2)
This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Question 9

Is the expert’s letter of instruction privileged?

Answer 9

CPR 35.10(4)

The letter of instruction is not privileged but usually the other side will not see it.

Question 10

How is expert evidence to be given?

Answer 10

CPR 35.5(1)

… in a written report unless the court directs otherwise.

Question 11

Under what circumstances will the court order an expert to appear at trial to give oral evidence in the small claims and fast track?

Answer 11

CPR 35.5(2)

only if it is in the interests of justice.

Question 12

What is the consequence of failure to exchange an expert report with the other side?

Answer 12

CPR 35.13
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.

Question 13

What is the general position on instructing single joint experts in the multi-track?

Answer 13

29 PD 4.8

Where appropriate the parties agree directions that provide for the use of a single joint expert.

Question 14

What is the general position on instructing single joint experts in the fast track?

Answer 14

28 PD 3.9(4)

The court will give directions for a single joint expert unless there is a good reason not to.

Question 15

What can a party do if an expert report is unfavourable to it?

Answer 15

1. Put questions to the expert - CPR 35.6
2. Seek advice from another expert - CPR 35.4
3. Seek a direction from the court for the expert to give evidence in court - CPR 35.5.

Question 16

What is the deadline for submitting questions to an expert?

Answer 16

CPR 35.6(2)

within 28 days of service of the expert’s report

Question 17

Where is expert defined?

Answer 17

CPR 33.2(1)

Section 3(1) CEA 1972
The Court decides who is an expert: experience does not need to be formal, but suitably qualified and experienced.

Question 18

What happens where a party discloses an expert report but then decides not to rely on it?

Answer 18

CPR 35.11
The other party may still rely on the report at trial.

CPR 35.5
The other party may also ask the court to direct that the expert give oral evidence.

Question 19

Which Rule gives the court control over expert evidence specifically?

Answer 19

CPR 35.4
(1)
No party may call expert evidence without the court’s permission.