8 - Witness and Expert Evidence

Question 1

Which CPR rules are relevant to witnesses and witness statements?

Answer 1

The main CPR rules to support this element are:
- CPR 31.1-32.5, 32.10-32.11

Question 2

What are the three types of evidence used to prove facts in issue?

Answer 2

Facts in issue must be proved by admissible evidence. There are three types:

1. Documents - Disclosure is the process by which each party tells the other what documents they have that are relevant to the case. After disclosure, certain documents are available for inspection allowing the other party to physically see the original or a copy.
2. Witness evidence - (testimony). There are two types of witnesses:
   - Witnesses of fact: Direct evidence by a witness of what they have perceived with their own senses.
   - Expert witnesses: Evidence of matters of opinion within their expertise.
3. Real evidence - ‘Real’ items that are adduced as evidence.

Question 3

What are the powers of the court when giving directions to control evidence?

Answer 3

The court has a broad power to control evidence. The court has the power to control the evidence by giving directions as to:

• The issues on which it requires evidence
• The nature of the evidence it wants
• The way the evidence is to be placed before the court

This broad power relates to all evidence, not just witness evidence.

The court can also:
- Exclude evidence that would otherwise be admissible
- Limit cross-examination (CPR 32.1)

Question 4

What is a witness statement, and what is the general rule regarding witness statements and issues in fact?

Answer 4

General Rule for Witness Evidence (CPR 32.2(1)(a)):
Any fact that must be proved by witness evidence at trial will generally be presented through oral evidence, although it can be given by video link (CPR 32.3).

Witness Statement (CPR 32.4(1)):
A witness statement is a written statement, signed by the witness, containing the evidence they would be permitted to give orally.

The statement is exchanged with other parties, which:
- Saves time and costs at trial.
- Facilitates settlement by allowing parties to assess the merits of each side’s case.

Role of a Witness Statement at Trial (CPR 32.5(2)):
The witness statement typically serves as the witness’s evidence in chief, so that in this scenario the person calling the witness up to give evidence would not have to take oral evidence from the witness.

At trial, the witness confirms the truth of the statement’s contents in the witness box.

The main purpose of the witness’s attendance is to allow for:
- Cross-examination by opposing counsel.
- Re-examination by their own party.
- (Rather than providing just oral evidence as it is the witness statement that is relied upon as evidence in cheif).

Process Summary:
Evidence in Chief (Witness Statement) → Cross-examination → Re-examination

Question 5

What directions does the court typically give regarding the exchange of witness statements at the allocation and case management stage?

Answer 5

The court will usually issue directions for the exchange of witness statements, which may include:

Date for exchange of witness statements with the other party (it is not normal to file trial witness statements at court, although this can be ordered, and they will certainly be included in the trial bundles in due course).

Directions can also relate to:
- Limiting the issues to be addressed.
- Identifying the witnesses whose evidence may be used.
- Limiting the number, length, or format of witness statements.
- Specifying the order in which witness statements are to be served.

Question 6

What requirements and steps must parties follow regarding witness statements if they intend to rely on them at trial, and what are the consequences of not serving statements on time?

Answer 6

Requirement to Call Witness: If a party has served a witness statement of a witness and wishes to rely on it, the party must:
- Call the witness to give oral evidence at trial.
- Alternatively, put the statement in as hearsay evidence in accordance with the procedure required by the rules (CPR 33).

Consequence of Not Serving on Time (CPR 32.10): If a witness statement (or witness summary) for trial is not served within the time specified by the court:
- The witness may not be called to give oral evidence unless the court gives permission.

Question 7

At what stage of the process does the exchange of witness statements take place?

Answer 7

Timing in Litigation Process:
- Exchange of witness statements is generally the step in the action that follows disclosure and inspection and comes before expert evidence.
- All disclosure documents must be reviewed prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.
- This is because it is useful to review all disclosure documents prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.

Question 8

Can parties extend the time for serving witness statements?

Answer 8

The parties can agree in writing extensions of up to 28 days for serving (and filing, if that has been ordered) of witness statements without the need for court approval provided any such extension does not put a hearing at risk (CPR 28.4 and 29.5).

Question 9

When is it necessary to apply to the court for approval of an agreed extension to serve witness statements?

Answer 9

Application to Court for Extensions Affecting Key Dates (CPR 3):
- In the event that an extension of time is agreed before witness statements are due to be served which does have an effect on a subsequent key date, an application should be made to the court for the extension under CPR 3 to avoid the risk of the court not approving the agreement at trial.
- Similarly, if an extension of time cannot be agreed before witness statements are due to be served, an application should be made.

Question 10

What steps must be taken if no extension is agreed for serving witness statements, or if they are served late?

Answer 10

When No Agreement is Reached or Statements Are Late (CPR 3.9 and 32.10):
- If no extension is agreed and witness statements are served late, an application would need to be made for relief from sanctions (CPR 3.9).
- In other words, an application for relief from the sanction that the witness may not be called to give evidence (CPR 32.10).
- The rules contain circumstances the court is required to take into account when deciding whether to include the witness evidence.

Question 11

What are the court’s powers in relation to the presentation of evidence at trial?

Answer 11

The court may allow a witness giving oral evidence at trial to:
- Amplify the witness statement.
Provide evidence on new
matters that have arisen since the witness statement was served (CPR 32.5(3)).

However, the court is unlikely to allow amplification if:
- It is essentially a late, unjustified change of tack.
- It attempts to remedy deficiencies, as this would create injustice to the other party, contrary to the overriding objective (CPR 1.1).

The court also has discretion to:
- Limit the extent of cross-examination (CPR 32.1(3)).

Question 12

What is the role of witness statements in interim applications, and what must they contain?

Answer 12

The vast majority of interim applications (e.g., requesting an extension of time for filing a defence) must be supported by written evidence.
- This evidence sets out the facts justifying the application (e.g., further time is needed to gather important information to draft the defence).

Often, a respondent will rely on written evidence to oppose the application.

If the written evidence is not contained within a statement of case or application notice verified by a statement of truth, it is usually presented in a witness statement specifically addressing only the issues relevant to the interim application.

Question 13

How does the general rule for presenting witness evidence differ between interim applications and trials?

Answer 13

For interim applications, the general rule is that any fact needing witness proof (other than for trial) is to be proved by written evidence (CPR 32.2(1)(b)).
- This means the witness does not typically “give evidence” in person at the interim hearing and is not cross-examined; the court relies solely on the written witness statement.

This approach is fundamentally different from the rule at trial, where oral evidence is generally required.

Although rare, any party may apply for permission to cross-examine the person providing the written evidence at the interim hearing (CPR 32.7).

Question 14

What is the content of a witness statement, and how is this decided?

Answer 14

A witness statement should cover every fact that needs to be proved by the witness’ evidence.

A witness statement must be in the witness’ own words although it will usually be drafted by a lawyer. The lawyer ‘proofs’ the witness by interview, produces a draft statement and then allows the witness to amend it as appropriate.

One way of deciding on relevant content is to ask:
- What is the argument?
- What is the legal basis for the argument?
- What are the facts that this witness can speak about that support the legal argument?

These are what should be set out in the witness evidence

Question 15

What is the general rule regarding the inadmissibility of opinion evidence?

Answer 15

The general rule is that the opinions of witnesses are not admissible.
- Witnesses are normally confined to stating the facts.
- The reasoning behind this rule is that it is the role of the court to form any opinions which need to be formed, and there is a risk that the court may be unduly influenced by the opinion of a witness who may not be as impartial as the court.
- The court must draw its own inferences from the facts stated.

Question 16

In what two situations is opinion evidence admissible under the Civil Evidence Act 1972?

Answer 16

Opinion evidence is admissible in the following situations:
- Perceived facts: A witness can provide an opinion based on their personal observations.
- Expert opinion: A qualified expert can give their opinion on relevant matters.

Question 17

What does Section 3 of the Civil Evidence Act 1972 state regarding the admissibility of expert and perceived facts?

Answer 17

Section 3 outlines the following:

Expert evidence:
“(1) Where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.”

Perceived facts:
“(2) A statement of opinion by a witness on any relevant matter, if made to convey relevant facts personally perceived by him, is admissible as evidence of what he perceived.”
“(3) In this section, ‘relevant matter’ includes an issue in the proceedings in question.”

Question 18

How does the ‘perceived facts’ exception allow a witness to give opinion evidence, and what are some examples of such admissible statements?

Answer 18

The ‘perceived facts’ exception allows a witness of fact to provide opinion evidence based on their personal observations, as follows:

A witness can describe an opinion, such as “the car was driving fast,” which summarises their sensory experience.
The detailed version might include facts like:
- Hearing the loud, high-pitched engine.
- Observing the car overtaking others.
- Noticing tyre marks on the road.

This opinion is generally admissible as long as it does not require any special expertise.

Another admissible example is: “Leanne was drunk,” which reflects the witness’s assessment based on what they observed.

Question 19

How are false statements in a witness statement dealt with?

Answer 19

A witness statement must be verified by a statement of truth.
- A witness who makes a false statement in the witness statement without an honest belief in the truth of that statement, may face proceedings for contempt of court, (CPR 32.14(1)).
- It is prudent to warn the witness before taking their statement of the implications of signing a false statement of truth.

Question 20

Can the same witness statement be used in other proceedings?

Answer 20

A witness statement may only be used for the proceedings in which it is served unless the witness or the court has given permission for some other use or it has been put in evidence at a hearing held in public (CPR 32.12).

Question 21

Provide a summary of witnesses and witness statements.

Answer 21

• The court controls the evidence, including by giving directions.
• Witnesses of fact provide direct evidence of what they have perceived with their own senses and there are many rules relating to witness statements (CPR 32).
• Evidence at trial is oral evidence, but the witness statement stands as evidence in chief with oral cross-examination and re-examination.
• Witness statements in relation to trial are exchanged in advance of trial, usually following disclosure and inspection.
• A witness may not be called to give oral evidence at trial if their witness statement is not served within the time specified by the court.
• Evidence of witnesses for interim hearings will normally be in writing only.
• The content of the witness statement should be the facts needed to support the legal argument.
• Witnesses of fact are not generally permitted to give their opinions, save under the ‘perceived facts’ exception.

Question 22

What are the main CPR rules to support the form of witness statements?

Answer 22

The main CPR rules to support this element are:
- CPR 32.8 and 32 PD 17-20 (in relation to witness statements generally)
- 57AC PD (in relation to trial witness statements in the Business and Property Courts).

Question 23

Who can provide a witness statement?

Answer 23

A witness statement is always given by a specific individual (not a company or a partnership), and must be signed by that person.

Question 24

What are the key components that a witness statement must include in its heading?

Answer 24

The witness statement needs to include a heading, such as:
- “IN THE HIGH COURT OF JUSTICE”
- “KING’S BENCH DIVISION”

The case details, e.g.,
- “B E T W E E N:” “ROBINSONS LIMITED” (Claimant)
- and “CASTLETON DELIVERIES PLC” (Defendant)
- “WITNESS STATEMENT OF CYNTHIA HARBIN”

Question 25

What information must be included in the endorsement of a witness statement?

Answer 25

The endorsement in the top right corner should include:
- Party relying on witness
- Initial and name of witness
- Number of statement
- Exhibits
- Date of signing
- Date of translation (if relevant)

Example:
- “Defendant”
- “C Harbin”
- “First”
- “CH1-2”
- “01.01.2022”

Question 26

What should be included in the opening paragraphs of a witness statement?

Answer 26

The opening paragraphs should include:
- Witness name
- Witness home address (or position, employer name and address if made in business capacity)
- Occupation
- Fact that witness is a party or employee of a party
- Process through which the statement was prepared (e.g., face to face or telephone)

Example:
“I, Cynthia Harbin, of Tregorran House, 12-16 Deal Plaza, Bournemouth, BH2 5MQ, Managing Director of the Defendant, will say as follows: I am a chartered accountant and the managing director of the Defendant, and I am duly authorised to make this statement on behalf of the Defendant. This witness statement was prepared following face-to-face discussions with my solicitor.”

Question 27

How should a witness statement address the source of information and belief, which is near the start of the witness statement?

Answer 27

The information and belief paragraph should state:
- “I make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.”

Question 28

What is the proper format for a witness statement’s concluding statement of truth?

Answer 28

The witness statement should end with:
- “I believe that the facts stated in this witness statement are true. 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.”
- This is a statement of truth.

It must be signed by the witness and include the date of signing.

Question 29

What are the key differences in formatting a witness statement for an interim hearing compared to one for trial?

Answer 29

A witness statement for an interim hearing includes two extra paragraphs not typically found in trial witness statements:
- Reason for the Statement: Near the beginning, after the information and belief paragraph, it should state:
- “I refer to the application notice dated [ ] and make this statement in opposition to the claimant’s application for summary judgment.”

Request to the Court: At the end, before the statement of truth, it should confirm what the witness would like the court to do regarding the interim application, for example:
- “In the circumstances, I submit to the Court for the reasons set out above that the Defendant is not liable for the sum claimed and that the Claimant’s application for summary judgment should be dismissed.”

Question 30

What are the additional rules for trial witness statements in the Business and Property Courts?

Answer 30

In addition to earlier rules, trial witness statements in the Business and Property Courts must satisfy the following criteria:

Applicability: The statement is for use at trial (not for interim hearings).

Document Identification: The witness must identify what documents they have referred to for providing the evidence in their witness statement.

Statement of Truth and Confirmation:
The witness must include a signed confirmation that they understand the purpose of the witness statement is not to argue the case or to take the court through the documents.

The statement must include confirmation from an appropriate legal representative that the rules have been explained to the witness and that the representative believes the witness statement complies with these rules.

Question 31

Provide a summary of the form of witness statements.

Answer 31

• A witness statement must take the form set out in the rules.
• It must be in the witness’s own words and language.
• It must be headed with the court, claim number and parties, in a similar way to most statements of case.
• In addition, it contains an ‘endorsement’ in the top right-hand corner with key information.
• The opening paragraphs give important information about the witness and is followed by ‘information and belief’ wording.
• A statement of truth in a given form must be included.
• A witness statement is always given by a specific individual (not a company or a partnership) and must be signed by that person.
• Witness statements for use at interim hearings contain two brief additional paragraphs.

Question 32

What are the main CPR rules to support affidavits?

Answer 32

The main CPR rules which support this element are:
- CPR 32.16 and 32 PD 2-16 in relation to affidavits.

Question 33

What are the main forms of evidence in legal proceedings regarding witness statements and affidavits?

Answer 33

Witness statements serve as the main form of evidence of fact. However, evidence of fact must be given by affidavit if required by the court or rules, such as for:
- Applications for a search order
- Applications for a freezing order
- Additionally, a party may choose to provide evidence by affidavit at hearings other than trial.

Question 34

What is an affidavit, and how does it differ from a witness statement?

Answer 34

An affidavit is a written statement of evidence sworn before a person authorised to administer affidavits, whereas a witness statement is verified by a statement of truth.
- The content of an affidavit is the same as that of a witness statement, but the form differs.
- A person who provides evidence by affidavit is called a deponent.
- The form of an affidavit must comply with specific requirements.
- There is no statement of truth in affidavits.

Question 35

What are the key components of the heading in an affidavit, and how does it differ from a witness statement?

Answer 35

The heading in an affidavit should reference “AFFIDAVIT” instead of “witness statement,” for example:
- “AFFIDAVIT OF CYNTHIA HARBIN”
- This clearly distinguishes the document as an affidavit, which has specific legal implications compared to a witness statement.

Question 36

What is the introductory requirement for an affidavit, particularly regarding the phrasing used?

Answer 36

The introduction of an affidavit must include the phrase ‘state on oath,’ indicating the sworn nature of the statement. It should read:

“I, Cynthia Harbin, of Tregorran House, 12-16 Deal Plaza, Bournemouth, BH2 5MQ, Managing Director of the Defendant, state on oath:”

Question 37

How should exhibits be referenced in an affidavit, and what wording is specific to this type of document?

Answer 37

Exhibits in an affidavit should use specific wording that indicates their presentation to the deponent. For example:

“There is now shown to me marked ‘CH2’ the detailed schedule of these faults.”

Question 38

What is a jurat in an affidavit, and how does it differ from the conclusion of a witness statement?

Answer 38

A jurat is a statement at the end of an affidavit that authenticates it, differing from the statement of truth found in witness statements. A jurat must:
- Be signed by all deponents.
- Be completed and signed by the person before whom the affidavit was sworn, whose name and qualification must be printed beneath.
- Contain the full address of the person before whom the affidavit was sworn.
- Follow immediately on from the text and not be placed on a separate page.

For example:
“Sworn at [full address]
On [Date]
Before me:
Signed………………………………………
Commissioner for oaths”

Question 39

Provide a summary of the key points regarding affidavits in civil proceedings.

Answer 39

• Affidavits serve the same purpose as witness statements, but they take a different form and must be sworn before a person authorised to administer affidavits.
• Affidavits must be used in an application for a search order or a freezing injunction, and in any other situation where a rule, order or practice direction requires it.

Question 40

What are the main CPR rules for hearsay and admissibility?

Answer 40

The main CPR rules which support this element are:
- CPR 33
- 33 PD

Question 41

What is the general rule regarding the admissibility of evidence that is relevant to the facts?

Answer 41

The general rule is that all evidence that is relevant to the facts is admissible in civil proceedings.

There are, however, special rules governing:
- Opinion evidence
- Evidence which is privileged
- Hearsay evidence

Question 42

What is the definition of hearsay evidence in civil proceedings?

Answer 42

Hearsay is defined as:
- An oral or written statement
- Made out of court
- Which is being adduced in court to prove the truth of the matter stated.

Question 43

How does an example illustrate the concept of hearsay?

Answer 43

“The bolt securing the bracket to the base plate is worn away.”

Following a subsequent explosion that destroyed the bolt and resulted in the technician’s death, the laboratory sues the bolt manufacturer for negligence.

During the proceedings, the supervisor repeats the technician’s statement.

The key points to consider are:
- The statement is oral.
- It was made out of court, specifically in the laboratory.
- It is adduced in court to show the truth of the statement regarding the defectiveness of the bolt.
- Therefore, this constitutes hearsay evidence.

Question 44

What are the special rules on hearsay?

Answer 44

As hearsay evidence is considered less reliable there are a number of procedural safeguards in the CEA 1995 to ensure that hearsay evidence is carefully scrutinised. These only apply to hearsay evidence that is to be given at trial. The rules are more relaxed at other stages of proceedings. The CPR also provides further guidance about the application of the CEA 1995 (CPR 33).

If a party intends to use hearsay, it must consider whether or not it is necessary to give notice of its intention to rely on hearsay.

Question 45

What is required in terms of notice when a party intends to rely on hearsay evidence at trial?

Answer 45

A party must give notice to the other party that it intends to rely on hearsay evidence.

The rules specify how this notice should be given:

If the evidence is in a witness statement of a person who is to give oral evidence at trial, no formal notice is required; notice of the hearsay is deemed served when witness statements are served.

If the evidence is in a witness statement of a person who is not giving oral evidence at trial, no formal notice is required, but the other party must be informed that the witness will not be giving evidence at trial, along with reasons.

In all other cases, formal notice must be given to the other party, identifying the hearsay, stating the desire to rely on it, and providing the reason why the witness will not be called.

Question 46

What are the consequences if notice of hearsay evidence is not given when required?

Answer 46

If notice is not given when it should have been (usually no later than the latest date for serving witness statements):
- The hearsay evidence will still be admissible in court.
- However, the weight the court attaches to it is likely to be less.
- The offending party may also face penalties in costs.

Question 47

What are the four possible options available to a party upon receiving a notice of intention to rely on hearsay evidence under s.2 CEA 1995?

Answer 47

A party has 4 possible options on receipt of a notice of intention to rely on hearsay (which includes notice given by serving witness statement as well as by serving hearsay notice):

Notice of intention to rely on hearsay evidence (s.2 CEA 1995):

• Request particulars of hearsay (s.2 CEA 1995)
• Call for cross-examination (s.3 CEA 1995)
• Challenge the weight of hearsay evidence (s.4 CEA 1995)
• Attack credibility of an absent witness (s.5 CEA 1995)

Question 48

What is the purpose of a party requesting particulars of hearsay evidence under s.2 CEA 1995, and what must these particulars be based on?

Answer 48

Request particulars of hearsay (s.2 CEA 1995):

A party who has received the notice can ‘request particulars’ of the hearsay that are reasonable and practicable for the purpose of enabling it to deal with any matters arising from the evidence being hearsay.

Question 49

What are the implications of a party calling for cross-examination of a hearsay witness under s.3 CEA 1995, and what is the timeframe for making such an application?

Answer 49

A party may call for cross-examination of a hearsay witness if the original party adduced hearsay evidence without calling the witness.
- The party seeking cross-examination must obtain leave from the court.
- The witness can be cross-examined on the hearsay statement as if they were called by the first party and as if the hearsay statement was the evidence in chief.
- This can have significant tactical consequences for the party that originally introduced the hearsay evidence, particularly if the witness’s testimony is weak.

The application for cross-examination must be made no later than 14 days after the hearsay notice was served on the applicant (CPR 33.4).

Question 50

What are the key considerations for challenging the weight of hearsay evidence under s.4 CEA 1995 at trial?

Answer 50

A party can challenge the weight that the court will attach to hearsay evidence during the trial.

Factors the court will consider when assessing the weight of hearsay evidence include:
- Whether it was reasonable and practicable for the party who presented the hearsay evidence to produce the original statement’s maker as a witness.
- Whether the original statement was made contemporaneously with the events it describes.
- Whether the evidence involves multiple hearsay (hearsay within hearsay).

These factors are critical in determining the reliability and credibility of the hearsay evidence presented.

Question 51

How can a party attack the credibility of an absent witness under s.5 CEA 1995 when relying on hearsay evidence at trial?

Answer 51

• If a party intends to rely on hearsay evidence but does not call the person who made the original statement, the opposing party can challenge the credibility of the absent witness during the trial.
• This attack must demonstrate that the absent witness has made previous inconsistent or contradictory statements.
• The party wishing to challenge the credibility must notify the adducing party of their intention to do so no later than 14 days after the hearsay notice has been served, as specified in CPR 33.5.

This process is crucial for addressing the reliability of the hearsay evidence presented.

Question 52

What are the rules regarding the use of plans, photographs, and models as hearsay evidence in court?

Answer 52

Hearsay evidence can include various forms of evidence, such as oral statements and statements in documents, which also extends to pictorial representations like plans, photographs, and models.

Specific notice rules apply to evidence that is:
- Not contained in a witness statement or expert’s report.
- Not intended to be given orally at trial.
- Not covered by the notice of intention to rely on hearsay provisions previously discussed.

According to CPR 33.6, if notice is not given for such evidence, it will not be admissible at trial.

Therefore, it is crucial to ensure that appropriate notice is provided to enable the inclusion of these forms of evidence.

Question 53

How is a conviction treated as evidence in civil proceedings according to the Civil Evidence Act 1968?

Answer 53

In civil proceedings, a conviction of an offence in a UK court is admissible to prove that the individual committed the offence, provided it is relevant to an issue in the case.

As stated in s.11 Civil Evidence Act 1968:
If a person is proved to have been convicted of an offence:
(a) They are taken to have committed that offence unless evidence to the contrary is presented.
(b) The contents of any document admissible as evidence of the conviction (including the information, complaint, indictment, or charge-sheet) are admissible to identify the facts on which the conviction was based.

A conviction does not automatically resolve the issue in civil proceedings; instead, the burden of proof lies with the person seeking to prove the contrary, who must do so on a balance of probabilities.

Only subsisting convictions are admissible as evidence in these proceedings.

Question 54

Provide a summary of hearsay and admissibility.

Answer 54

• All evidence that is relevant to the facts is generally admissible.
• There are some special rules governing some types of evidence, including hearsay.
• Hearsay is an oral or written statement made out of court which is being adduced in court to prove the truth of the matter stated.
• As hearsay is second-hand evidence and therefore more likely to be unreliable, there is a notice requirement to provide a warning to the court and to the other party of its use and the ability to challenge its credibility.
• A party who receives a hearsay notice can request particulars of the hearsay, call for cross-examination of the witness, challenge the weight of the hearsay or attack the credibility of the evidence.
• There are special notice rules for the use of plans, photographs and models being used as evidence.
• There are special rules relating to convictions as evidence in civil proceedings

Question 55

What are the main CPR rules which support expert evidence?

Answer 55

The main CPR rules which support this element are:
- CPR 35
- 35 PD

Question 56

When does the exchanging expert evidence in relation to witness evidence take place, and what are the two types of witnesses?

Answer 56

The exchange of expert evidence generally follows the exchange of witness evidence, necessitating experts to consider both disclosure and witness statements before finalising their reports.

There are two types of witnesses:
- Witnesses of Fact: They provide direct evidence based on their own perceptions.
- Expert Witnesses: They give evidence consisting of opinions within their area of expertise.

Question 57

What is expert evidence?

Answer 57

An expert is generally a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise.

Not all cases require expert evidence. However, the judge often has to consider not just legal issues (their expertise) but also scientific, technical, medical or other issues of which the judge may have no direct experience or knowledge. In such cases the judge can be assisted by expert opinion from practitioners or academics with expertise in the relevant area.

A court order is required if a party wishes to adduce expert evidence at trial.

There are particular rules for submitting expert evidence (CPR 35 and 35 PD). Experts and those instructing experts should also refer to the Guidance for the Instruction of Experts in Civil Claims to understand best practice in complying with the rules.

Question 58

What is the general rule regarding opinion evidence, and what are the exceptions to this?

Answer 58

The general rule is that the opinions of witnesses are not admissible. Witnesses are normally confined to stating the facts.

The reasoning behind this rule is that it is the role of the court to form any opinions which need to be formed, and there is a risk that the court may be unduly influenced by the opinion of a witness who may not be as impartial as the court.

The court must draw its own inferences from the facts stated.

There are, however, two situations when opinion evidence is admissible:
- Perceived facts
- Expert opinion

Question 59

What are the key provisions of Section 3 of the Civil Evidence Act 1972 regarding the admissibility of expert evidence and perceived facts in civil proceedings?

Answer 59

Admissibility of Expert Evidence (s.3(1)): When a person is called as a witness in civil proceedings, their opinion on any relevant matter for which they are qualified to give expert evidence is admissible.

Admissibility of Perceived Facts (s.3(2)): A statement of opinion by a witness on a relevant matter, if made to convey relevant facts personally perceived by them, is admissible, even if they are not qualified to give expert evidence.

Relevant Matter (s.3(3)): The term “relevant matter” includes issues in the proceedings.

Question 60

How does the Civil Evidence Act 1972 define expert opinion and the role of the court in determining expertise?

Answer 60

Expert Opinion: The focus on expert evidence serves as the first exception to the general rule that opinion evidence is inadmissible, as confirmed by s.3(1) of the Civil Evidence Act 1972.

Court’s Role in Determining Expertise: The court ultimately decides who qualifies as an expert. While the expert’s experience does not need to be formal, they should be suitably qualified and experienced. Solicitors and/or counsel may need to determine the type of expert required for a particular case.

Question 61

What are the court’s duties and powers regarding the use of expert evidence in civil proceedings as per CPR 35?

Answer 61

Duty of the Court to Restrict Evidence (CPR 35.1): The court must restrict expert evidence to what is reasonably required to resolve the proceedings. If the issues are factual and do not necessitate expert evidence, permission should be refused for its use at trial. This duty includes the ability to exclude admissible evidence to further the overriding objective.

Control of Evidence: The court controls evidence by directing:
- The issues on which it requires evidence.
- The nature of the evidence required to decide these issues.
- The method of presenting evidence before the court.

Power of the Court to Restrict Evidence (CPR 35.4): Parties can only rely on expert evidence with the court’s permission. While parties may instruct multiple experts without permission, they need court approval to use expert evidence in the proceedings. This permission is typically sought during the case management stage.

Question 62

How does the court restrict expert evidence in small claims, fast track, and intermediate track cases?

Answer 62

Small Claims Track: Normal procedural rules on expert evidence are generally disapplied, with exceptions for certain rules, including:
- Duty to restrict expert evidence (CPR 35.1).
- Experts’ overriding duty to the court (CPR 35.3).
- Court’s power to direct evidence by a single joint expert (CPR 35.7) and instructions to that expert (CPR 35.8).

Fast Track: The court considers limits on expert evidence in track allocation, allowing:
- One expert per party per expert field.
- Expert evidence limited to two expert fields (CPR 26.6).

Intermediate Track: The court considers that oral expert evidence at trial will likely be limited to two experts per party (CPR 26.7).

If expert evidence is allowed in small claims or fast track cases, permission is typically granted for one expert per issue (CPR 35.4(3A)).

Question 63

What must parties include when applying for permission to use expert evidence in court?

Answer 63

Parties must:
- Provide an estimate of the costs of the proposed expert evidence.
- Identify the field in which expert evidence is required.
- If practicable, name the proposed expert (CPR 35.4(2)).

This information should be set out in the directions questionnaire.

Caution with Naming Experts: Naming an expert in the directions questionnaire can lead to complications:
- If the court orders the named expert to be used, the party must return to court to seek permission to change experts if issues arise.
- This may result in the other party seeing the original expert’s report, which could negatively impact the party’s case.

Question 64

What are the duty and role of an expert witness in court?

Answer 64

Duty of an Expert:
Experts have a duty to help the court on matters within their expertise, which takes precedence over any duty to the instructing party (CPR 35.3).

Role of an Expert (Ikarian Reefer Guidelines):
Expert evidence should be independent, unaffected by litigation pressures.
Experts provide the court with objective, unbiased opinions within their expertise, without acting as advocates.

Experts must:
- Clearly state the facts or assumptions underlying their opinions and avoid omitting material facts that could weaken their conclusions.
- Clarify when an issue or question lies outside their expertise.
- Indicate if an opinion is provisional due to insufficient data.
- Communicate any material change in opinion to the other party and, when relevant, the court after report exchanges.
- Supply any documents (photographs, plans, survey reports) cited in their evidence to the opposing party at the same time as report exchanges.

Question 65

What are the key rules and considerations when instructing experts?

Answer 65

Letter of Instruction to Expert:
Not privileged from inspection (CPR 35.10(4)), but the court won’t require disclosure or allow cross-examination about the instructions unless the instructions are inaccurate or incomplete as summarised by the expert.

Purpose of the Rule:
Aims to balance transparency of expert instructions with privilege, given the expert’s overriding duty to the court.

A party cannot request disclosure of instructions without reasonable grounds to believe the instructions are inaccurate.

Key Consideration:
Ensure accuracy and completeness when instructing an expert, as any perceived inaccuracy in the instructions may be grounds for disclosure.

Question 66

What are the requirements and essential content for an expert report in civil proceedings?

Answer 66

Requirement for Written Report: Expert evidence must be given in a written report unless the court directs otherwise (CPR 35.5).

Court Permission and Reliance: When the court grants permission for expert evidence, it typically requires a report to be produced and served, which can be relied on at trial.

Report Content: The report must include:
- Addressed to the court, not to the instructing party.
- A clear outline of the expert’s qualifications.
- Details of all material relied upon.
- The substance of all facts and instructions given to the expert that are material to the opinions expressed.
- A statement clarifying which facts are within the expert’s own knowledge (CPR 35.10(1)-(3) and 35 PD 3).
- Identification of who conducted any tests or experiments relied on, their qualifications, and whether these were done under the expert’s supervision.

Question 67

What additional elements must an expert report include regarding opinion range, conclusions, and compliance with court duties?

Answer 67

An expert report must also include:

Range of Opinion: If there is a range of opinion on the matters addressed, the report should:
- Summarise this range.
- Provide reasons for the expert’s own opinion within that range.

Conclusions: A summary of the conclusions reached by the expert.

Qualified Opinions: If the expert cannot provide an opinion without qualification, the report should state the qualification.

Duty and Compliance Statement: The report must contain a statement that the expert:
- Understands their duty to the court and has complied with it.
- Is aware of CPR 35, 35 PD, and the Guidance for the Instruction of Experts.
- The report should also be verified by a statement of truth (35 PD 3.3).

Drafts and Privilege: If an expert submits a draft report to the instructing party before producing the final version, the draft is generally subject to litigation privilege and is privileged from inspection. Privilege is waived when the final report is served.

Question 68

What is required for the exchange of expert evidence, and what are the consequences of failing to follow these directions?

Answer 68

Exchange Requirement: Experts’ reports must be exchanged with the opposing side to be admissible at trial. This is typically directed at the directions stage.

Type of Exchange: The court may order either a simultaneous or sequential exchange of expert reports.

Failure to Comply: If reports are not exchanged in line with court directions, the evidence cannot be used at trial unless the court grants permission (CPR 35.13).

Question 69

What is the role of a single joint expert, and under what circumstances might one be appointed?

Answer 69

Purpose of Single Joint Expert: To save costs, parties can agree to appoint a single joint expert instead of each instructing their own. If parties do not agree, the court can require a single joint expert.

Encouragement by Protocols: Pre-action protocols encourage single joint experts where suitable, especially for simpler cases.

Typical Use: Single joint experts are common in small claims track and fast track matters but are generally unsuitable for complex multi-track cases.

Communication and Transparency:
The expert must be copied into all relevant correspondence to ensure transparency.

Both parties may collaborate on a joint letter of instruction. If each party gives separate instructions, they must send a copy to the other party (CPR 35.8).

Court’s Role if Disagreement on Expert:
If the parties disagree on the expert’s identity, the court may choose from a list provided by the parties or direct another method for selection.

Court Directions:
On the fast and intermediate tracks, the court should direct the use of a single joint expert unless there is a strong reason not to (28 PD 3.9).

For the multi-track, directions should be agreed upon for a single joint expert where suitable (29 PD 4).

Question 70

What are the key provisions regarding questions a party can pose to an expert after the exchange of expert reports?

Answer 70

Once expert reports have been exchanged, the rules allow a party to put written questions to the other party’s expert, or to the single joint expert, if there is one (CPR 35.6).

The following provisions apply:

• Questions can only be put once
• Questions should generally only be for the purposes of clarifying the report
• Questions must be submitted to the expert within 28 days of service of the report
• A copy of the questions must be sent to the other party
• There is no time limit within which the expert must answer questions unless ordered by the court
• Answers to the questions become part of the report
• If the expert does not answer, the court can order that the party who instructed the expert cannot rely on their evidence and or cannot recover the expert’s fees from the other party

Question 71

What are the procedures and requirements for experts submitting written requests for direction to the court?

Answer 71

Experts may submit written requests for direction to the court to help them carry out their task (CPR 35.14). Unless the court orders otherwise, the expert must:

• Provide to the party instructing the expert, a copy of any proposed request for directions at least 7 days before filing it at court; and
• Provide a copy to all other parties at least 4 days before filing it at court.

The court, when it gives directions, can direct that a party also be served with a copy of the directions.

To assist experts, where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert (35 PD 8). The claimant must serve the order on the single joint expert.

Question 72

What are the rules regarding discussions between experts when each party has submitted evidence from their own expert?

Answer 72

Court Direction: The rules allow the court to direct experts to discuss issues in dispute (CPR 35.12).

Purpose:
- Identify issues in the case.
- Reach an agreed opinion where possible.

Efficiency: This process is common as it usually saves time and costs at trial.

Specific Issues: The court can specify which issues the experts must discuss.

Joint Statement: Experts must produce a joint statement after the meeting, detailing:
Issues they agree on.
Issues they do not agree on, along with a summary of reasons.

Question 73

What are the implications of agreements made between experts during discussions, and what are the attendance rules for parties or legal representatives?

Answer 73

Binding Nature of Agreements: Agreements between experts do not bind the parties unless there is express agreement to be bound.

Consideration Before Refusal: Parties should carefully consider refusing to be bound by an agreement and be prepared to explain their refusal, especially regarding costs.

Attendance Rules:
Neither the parties nor their legal representatives typically attend experts’ discussions unless ordered by the court or agreed upon.
If legal representatives do attend, they should not intervene except to:
- Answer questions.
- Advise on the law.

Challenging Expert Agreement: A party can argue that:
- The expert acted outside their expertise or incompetently.
- The agreement should not be accepted by the court.
- Further expert evidence should be adduced if it’s believed the first expert modified their opinion improperly.

Confidentiality: Discussions between experts are without prejudice and should not be referenced at trial unless agreed upon by the parties.

Question 74

What are the rules regarding oral evidence from experts at trial, and what is ‘hot-tubbing’?

Answer 74

Permission to Call Experts: The court may grant permission to call the expert to give oral evidence at trial.

Small Claims and Fast Track:
In small claims track and fast track cases, the court will only order the expert to appear at trial to give oral evidence if it is in the interests of justice to do so.

Presentation of Evidence:
If permission is granted, the claimant typically presents all evidence supporting their case first, including the oral evidence of experts, followed by the defendant’s presentation.

Court Directions: The court can direct that expert oral evidence be given differently, such as:
- Issue-by-issue basis (each side takes turns calling witnesses/expert on specific issues).

Hot-Tubbing: This is a method where:
- Some or all experts from similar disciplines give evidence concurrently.
- The judge asks experts for their views on agenda issues set by the court or agreed by the parties.
- The judge may pose questions or invite commentary from the other expert, followed by questioning from the parties’ representatives.

Question 75

What options does a party have upon receiving an unfavourable expert report from their own expert or a single joint expert?

Answer 75

The party has several options, including:

Put Questions to Expert: The party can ask questions to the expert (CPR 35.6).

Seek Oral Evidence Direction: If there is no direction for the expert to give oral evidence, the party can seek such a direction from the court.

Consult Another Expert Advisor:
If the expert’s advice differs substantially from expectations, the party may seek permission to call another expert. This can be difficult and costly.

If permission to call another expert is denied, the party can use the expert advisor to assist in preparing questions for cross-examination.

Question 76

What are the implications of seeking to adduce evidence from a second expert after receiving an unfavourable report?

Answer 76

If a party decides to call a different expert witness, it must seek the court’s permission to do so (CPR 35.4).

The court will often only allow the evidence of a second expert if the first report is disclosed to prevent ‘expert shopping’ (seeking the most favourable opinion).

Challenges include:
- Difficulties in Obtaining Permission: The court generally permits a second expert’s report only in exceptional circumstances.
- Cost Sanctions and Credibility Risks: There may be cost sanctions and potential loss of credibility for seeking a second opinion.

If a party decides not to rely on its expert’s report after disclosure, the other party may still rely on that report at trial (CPR 35.11).

Ultimately, if an expert’s report is unfavourable, the party should consider the possibility of settlement.

Question 77

Provide a summary of expert evidence.

Answer 77

• Unlike witnesses of fact, experts are permitted to give opinions.
• A party needs the court’s permission to rely on expert evidence, and the court has a duty to restrict expert evidence to that which is reasonably required.
• The duty of experts is to help the court on matters within their own expertise.
• The letter of instruction to an expert is not privileged but will not normally be seen by the other side.
• An expert’s opinion will be in a written report, exchanged with the other side.
• A single joint expert can be used instead of each party instructing their own expert.
• After exchange of reports, parties can put written questions to the other party’s expert or a single joint expert and the answers form part of the expert’s report.
• Experts can hold discussions to narrow the issues in dispute.
• Parties may be given permission to call experts to give oral evidence at trial.