Chapter 11: Witness and Expert Evidence

Question 1

1 Introduction to witness and expert evidence

Answer 1

Between the case management stage and trial, the parties prepare and exchange evidence. This can be seen as taking place in 3 main stages. The first relates to the exchange of potential
documentary evidence – disclosure and inspection. The second and third relate to the evidence of witnesses of fact, and then (in some cases) expert evidence. Those second and third stages are the subject of this chapter.

Question 2

Witness & Expert Evidence

Answer 2

Witness: Direct evidence by a witness of what they have perceived with their own senses. Expert: A highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise.

Question 3

Example: Witness evidence

Answer 3

Let’s assume we are dealing with a road traffic accident case, in which a pedestrian has been injured by the actions of a driver. Important evidence for the court is the pedestrian’s account of having seen the driver looking at their mobile phone whilst driving and mounting the curb and hitting the pedestrian. This is witness evidence. The witness, in this case the pedestrian, is giving evidence of what they have perceived with their own senses. That sort of witness evidence is clearly going to be needed at trial.

Question 4

Example: Witness evidence - interim application

Answer 4

Imagine an interim application by a defendant for permission to amend its defence. If the basis for seeking that permission is that since the defence was originally filed and served, the
defendant has realised that a date set out in that defence is inaccurate, then the court must be told of the error in the original defence, what the correct date should be, and probably also information such as when the error was discovered

Question 5

Example: Witness evidence - interim application

Answer 5

Which goes to how promptly the application was made, which may be a relevant consideration for the court in deciding whether or not to grant permission. Those facts need to be put before the court, and again this is witness evidence. That evidence might come from a solicitor who perceived how things have developed, or it could
come from the client.

Question 6

Example: Expert evidence

Answer 6

Let us return to our road traffic accident. In order to decide what sum should be awarded to the claimant in the event that the claim succeeds, the court is going to need to know how serious the claimant’s injuries are and the claimant’s prognosis – when the claimant is likely to recover and to what extent. How and when a claimant is likely to recover from an injury are matters of opinion, and furthermore they are opinions which needs to come from an expert. This is what expert
evidence is for. So the claimant might want to rely on an orthopaedic surgeon to give evidence as to how and when the claimant will recover.

Question 7

2 Evidence of fact: witnesses and witness statements

Answer 7

There are two general points about evidence that it is useful to bear in mind when considering witnesses and witness statements. Firstly, putting witness statements in the context of evidence more broadly. Facts in issue must be proved by admissible evidence. There are three types:
(a) 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.

Question 8

2 Evidence of fact: witnesses and witness statements

Answer 8

(b) Witness evidence - (testimony). There are two types of witnesses:
(i) Witnesses of fact: direct evidence by a witness of what they have perceived with their own senses. This section focuses on witnesses of fact.
(ii) Expert witnesses: evidence of matters of opinion within their expertise.
(c) Real evidence - ‘Real’ items that are adduced as evidence.

Question 9

2 Evidence of fact: witnesses and witness statements

Answer 9

Secondly, the court’s 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

Question 10

The court can also:

Answer 10

Exclude evidence that would otherwise be admissible
* Limit cross-examination
(CPR 32.1)

Question 11

2.1 What is a witness statement?

Answer 11

Turning to witnesses and witness statements, the general rule (CPR 32.2(1)(a)) is that any fact which needs to be proved by the evidence of witnesses at trial will be by oral evidence (although the evidence can be given by video link (CPR 32.3)).
A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally (CPR 32.4(1)).

Question 12

2.1 What is a witness statement?

Answer 12

A witness statement is therefore exchanged with the other parties: this saves time and costs at trial and helps to facilitate settlement because the parties are able to evaluate the merits of their respective cases. A witness statement usually stands as the witness’s evidence in chief at the trial (CPR 32.5(2)). This effectively means that the witness will be asked to confirm the truth of the contents of the statement in the witness box. The principal purpose of the witness’ attendance at trial is to afford the other party’s counsel an opportunity to cross-examine the witness. The witness will then be reexamined by their own party.

Question 13

2.2 Service of witness statements

Answer 13

The court will usually give directions as to the exchange of witness statements at the allocation
and case management stage.
The parties must comply with any direction given for exchange of witness statements. The
direction will usually include a date for exchange 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). The direction can also relate to:

Question 14

2.2 Service of witness statements

Answer 14

• Limiting the issues
• 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
  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 or put in the statement as hearsay evidence in accordance with the procedure required by the rules (CPR 33).
  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 (CPR
  32.10).

Question 15

2.2 Service of witness statements
Exchange of witness statements

Answer 15

Exchange of witness statements is generally the step in the action that follows disclosure and inspection. All the disclosure documents must be reviewed prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.

Question 16

2.2.1 Extending the time for serving witness statements

Answer 16

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).

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 17

2.2.1 Extending the time for serving witness statements

Answer 17

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 18

2.3 Presentation of evidence

Answer 18

The court retains discretion on the presentation of evidence at trial.
Rather than the witness statement standing as the only evidence in chief, a witness giving oral evidence at trial may, with the permission of the court, amplify the witness statement or give evidence in relation to new matters which have arisen since the witness statement was served (CPR 32.5(3)). However, the court is unlikely to permit the amplification of evidence that is
essentially a late, unjustified change of tack or, for example, to remedy deficiencies as this would create injustice to the other party contrary to the overriding objective (CPR 1.1).

Question 19

2.3 Presentation of evidence

Answer 19

The court may limit cross-examination (CPR 32.1(3)).
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 20

2.4 Witness statements for interim applications

Answer 20

In practice, the vast majority of interim applications (for example, requesting an extension of time for filing a defence) must be supported by written evidence setting out the facts that justify the application (for example, that further time is needed to gather important information to draft the defence). In many cases, a respondent will wish to rely on written evidence to oppose the
application. Unless the written evidence is contained within a statement of case or an application
notice verified by a statement of truth, it will often be in a witness statement and address the issues in the interim application only.

Question 21

2.4 Witness statements for interim applications

Answer 21

The general rule is that any fact which needs to be proved by the evidence of witnesses other than for trial is to be proved by their evidence in writing (CPR 32.2(1)(b)) – so the witness does not generally ‘give evidence’ in person at the interim hearing and is not cross-examined, the court relies solely on the witness statement. This is fundamentally different to the general rule that
applies to trial. However, any party may apply for permission to cross-examine the person giving the evidence (CPR 32.7), although this is very unusual.

Question 22

2.5 Content of witness statements

Answer 22

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.

Question 23

2.5 Content of witness statements

Answer 23

One way of deciding on relevant content is to ask:
(a) What is the argument?
(b) What is the legal basis for the argument?
(c) 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 24

2.5.1 Opinion evidence

Answer 24

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 25

2.5.1 Opinion evidence

Answer 25

There are, however, two situations when opinion evidence is admissible: (a) Perceived facts; and (b) Expert opinion In this regard, s 3 Civil Evidence Act 1972 is important. The Civil Evidence Act 1972, s3 confirms that: (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

Question 26

2.5.1 Opinion evidence

Answer 26

(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying 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 27

2.5.1 Opinion evidence

Answer 27

The first exception to the general rule is concerned with expert evidence – that is the subject of a different section, ‘expert evidence’. However, the second exception allows a witness of fact (such as we are considering here) to give opinion evidence following the ‘perceived facts’ exception.

Question 28

Example: Perceived facts in witness statements (i)

Answer 28

“The car was driving fast”. This is a shorthand way of the witness describing what they experienced with their senses. The longhand version would include facts such as the witness hearing the car’s engine turning over at high revolutions (it was loud and high pitched), the car overtaking other cars and the car leaving tyre marks on the road. All this leads the witness to the perceived opinion that “the car was driving fast”. This type of statement will generally be admissible as long as a proper appraisal of the facts does not call for any special expertise

Question 29

Example: Perceived facts in witness statements (ii)

Answer 29

“Leanne was drunk”. This is another example which will generally be admissible. A witness statement must take the appropriate form. This is explained in a different section of this chapter. It is worth noting, however, that 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 30

2.6 Summary

Answer 30

* 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.

Question 31

2.6 Summary

Answer 31

* 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 32

3 Evidence of fact: form of witness statements 3.1 Form of witness statements generally

Answer 32

A witness statement must comply with certain requirements in terms of its content and presentation (CPR 32.8 and 32 PD 17-20). These requirements are explained and illustrated in the annotated examples on the following pages. In the course of proceedings, there may be many witness statements given by or on behalf of the parties for different reasons. The endorsements illustrated on the following pages help the parties and the Court to identify and navigate through the various witness statements. A witness statement is always given by a specific individual (not a company or a partnership) and must be signed by that person

Question 33

3.2 Witness statements for uses other than trial

Answer 33

There are formatting differences in a witness statement prepared for an interim hearing to the one prepared for trial. Essentially, two extra paragraphs should be included. One, near the beginning after the information and belief paragraph, confirms the reason for the statement.

Question 34

Example: Witness statement for an interim hearing - additional paragraph (beginning)

Answer 34

I refer to the application notice dated [ ] and make this statement in opposition to the claimant’s application for summary judgment. The second extra paragraph is at the end of the witness statement before the statement of truth and confirms what the witness would like the court to do in relation to that interim application.

Question 35

Example: Witness statement for an interim hearing - additional paragraph (end)

Answer 35

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 36

3.3 Form of witness statements in the Business and Property courts

Answer 36

In addition to the rules set out above, there are additional rules for witness statements (with limited exceptions) where both the following criteria are satisfied: (a) the statement is for use at trial (ie not witness statements for interim hearings); and (b) the trial is to take place in the Business and Property Courts.

Question 37

These rules include:

Answer 37

* The statement must identify what documents the witness has referred to for the purpose of providing the evidence set out in their witness statement. * As well as a statement of truth, a witness must include a signed confirmation that the witness understands that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case. * The statement must include a confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them (the rules and the detailed wording for the confirmations summarised above are in 57A PD).

Question 38

3.4 Summary

Answer 38

* 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

Question 39

3.4 Summary

Answer 39

* 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 40

4 Evidence of fact: affidavits

Answer 40

Witness statements are the main form of evidence of fact, but evidence of fact must be given by affidavit (instead of witness statement) if this is required by the court or rule (eg for an application for a search order or a freezing order). A party may also choose to give evidence by affidavit at a hearing other than trial if they wish to do so (CPR 32.15).

Question 41

4 Evidence of fact: affidavits

Answer 41

An affidavit is a written statement of evidence that is sworn before a person authorised to administer affidavits (rather than verified by a statement of truth). The content of an affidavit is the same as a witness statement, but the form is different. A person who gives evidence by affidavit is called a deponent. The form of an affidavit must comply with specific requirements (CPR 32.16 and 32 PD 2-16). The main differences of form compared with a witness statement are set out below.

Question 42

4.2 Summary

Answer 42

* 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 43

5 Civil evidence – hearsay and admissibility 5.1 Admissibility

Answer 43

The general rule is that all evidence that is relevant to the facts is admissible in civil proceedings. There are, however, special rules governing: (a) Opinion evidence (b) Evidence which is privileged (c) Hearsay evidence Other sections in this chapter provide you with details of opinion evidence, for example ‘Evidence of fact: witnesses and witness statements’ and ‘Evidence of experts’. Another chapter provides you with details of privilege. This section focuses on hearsay evidence.

Question 44

5.2 Hearsay 5.2.1 General rule on hearsay

Answer 44

Hearsay is indirect evidence, whether written or oral. Hearsay evidence is admissible (meaning it can be used) in civil proceedings by virtue of s.1 of the Civil Evidence Act 1995 (‘CEA 1995’). Hearsay evidence is, however, treated carefully by the court; it is indirect evidence and therefore inherently less reliable than direct oral, documentary or real evidence. Direct oral, documentary or real evidence is the best evidence and should always be relied on where possible.

Question 45

Hearsay:

Answer 45

* An oral or written statement * Made out of court * Which is being adduced in court to prove the truth of the matter stated

Question 46

Example: Hearsay

Answer 46

A technician in a laboratory made this statement to her supervisor: “The bolt securing the bracket to the base plate is worn away.” There was a subsequent explosion in the laboratory in which the technician died and the bolt was destroyed. The laboratory sues the bolt manufacturer for negligence. In the proceedings the supervisor of the laboratory is called to give evidence. In evidence, the supervisor repeats the statement made by the technician

Question 47

Is the supervisor’s evidence hearsay?

Answer 47

* An oral statement? Yes (by the technician to the supervisor) * Made out of court? Yes (in the laboratory) * Which is being adduced in court to show that the statement is true? Yes (to back up the laboratory’s view that the bolt was defective). Therefore, it is hearsay evidence.

Question 48

5.2.2 Special rules on hearsay

Answer 48

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 49

Notice of intention to rely on hearsay evidence

Answer 49

If a party intends to rely on hearsay evidence at trial, it must give notice to the other party that it intends to do so. The rules specify how the notice should be given (CPR 33.2): * 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 on the other party; no separate communication is required.

Question 50

Notice of intention to rely on hearsay evidence

Answer 50

* 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 with reasons. * In all other cases, formal notice must be given to the other party identifying the hearsay, stating that the party wishes to rely on it and the reason why the witness will not be called.

Question 51

Notice of intention to rely on hearsay evidence

Answer 51

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

Question 52

Request particulars of hearsay (s.2 CEA 1995)

Answer 52

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 53

Call for cross-examination (s.3 CEA 1995)

Answer 53

Where a party adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine them on the statement as if they had been called by the first-mentioned party and as if the hearsay statement was the evidence in chief (CPR 33.4). This could have devasting tactical effects for the adducing party, for example, if the witness is weak. The application must be made no later than 14 days after the hearsay notice was served on the applicant (CPR 33.4).

Question 54

Challenge the weight of hearsay evidence (s.4 CEA 1995)

Answer 54

It is possible to challenge the weight the court will attach to the hearsay evidence at trial. The factors the court will consider when assessing the weight to attach to hearsay evidence include, for example: (a) whether it would have been reasonable and practicable for the party who adduced the evidence to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously to the matters stated; (c) whether the evidence involves multiple hearsay, etc

Question 55

Attack credibility of an absent witness (s.5 CEA 1995)

Answer 55

Where a person wishes to rely on hearsay evidence but does not propose to call the person who made the original statement to give evidence, the party who has received notice can attack the credibility of the absent witness at trial (even though they are not present). The attack should show that the absent witness made previous inconsistent or contradictory statements. The receiving party must notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served (CPR 33.5)

Question 56

5.2.3 Hearsay in plans, photographs and models

Answer 56

Hearsay evidence may arise in different forms of evidence. The definition of hearsay evidence includes oral statements and statements made in documents or any other medium in which information of any description is recorded and therefore includes pictorial representations such as plans, photographs and models. There are notice rules which must be followed for any evidence that is:

Question 57

5.2.3 Hearsay in plans, photographs and models

Answer 57

* Not contained in a witness statement or expert’s report; * Not to be given orally at trial; or * Not subject to the notice of intention to rely on hearsay provisions discussed earlier in the section. (CPR 33.6) This includes plans, photographs and models. Unless notice is given, the evidence will not be receivable at trial.

Question 58

5.3 Convictions as evidence in civil proceedings

Answer 58

In civil proceedings, the fact that a person has been convicted of an offence in a UK court is admissible in evidence to prove that he committed the offence. Proving the offence must be relevant to an issue in the proceedings. This is set out in s.11 Civil Evidence Act 1968. In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence— (a) he shall be taken to have committed that offence unless the contrary is proved; and

Question 59

5.3 Convictions as evidence in civil proceedings

Answer 59

(b) the contents of any document which is admissible as evidence of the conviction (and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted), shall be admissible in evidence for the purpose of identifying the facts on which the conviction was based. This does not mean that a conviction ends the issue within the civil proceedings. Instead, a person wanting to prove the contrary will have the burden of proving that the person convicted did not commit the offence on a balance of probabilities. No conviction other than a subsisting one is admissible in evidence.

Question 60

5.4 Summary

Answer 60

* 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

Question 61

5.4 Summary

Answer 61

* A party who receives a hearsay notice can request particulars of the hearsay, call for crossexamination 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 62

6 Expert Evidence

Answer 62

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. This section focuses on expert evidence.

Question 63

6.1 What is expert evidence?

Answer 63

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.

Question 64

6.1 What is expert evidence?

Answer 64

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 65

6.2 Opinion evidence

Answer 65

As explained in a previous section, 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 66

6.2 Opinion evidence

Answer 66

There are, however, two situations when opinion evidence is admissible: (a) Perceived facts (b) Expert opinion The Civil Evidence Act 1972, s3 confirms that: (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. (3) In this section “relevant matter” includes an issue in the proceedings in question. In this section the focus is on expert evidence which is an exception to the general rule that opinion evidence is inadmissible as confirmed by s.3(1) of the Civil Evidence Act 1972

Question 67

6.2 Opinion evidence

Answer 67

The court ultimately decides who is an expert. The experience of the expert does not need to be formal, but an expert should be suitably qualified and experienced. In practice the solicitor and/or counsel may have to decide what type of expert a particular case needs.

Question 68

6.3 Use of expert evidence 6.3.1 Duties of the court

Answer 68

The court has a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings (CPR 35.1). If the issues are factual and do not require expert evidence, the court should refuse permission for it to be used at trial. The general rule to restrict evidence can be exercised to exclude evidence that would otherwise be admissible to further the overriding objective. The court controls evidence by directing the issues on which it requires evidence, the nature of the evidence it requires to decide the issues and the way in which evidence is to be placed before the court

Question 69

6.3.1 Duties of the court

Answer 69

Although the parties may wish to adduce expert evidence at trial, they can only do so with the court’s permission (CPR 35.4). A common misconception is that the court’s permission is required to instruct an expert whereas a party may instruct as many experts as it likes, but it needs the court’s permission to rely on expert evidence in the proceedings. The parties usually obtain that permission by seeking a direction from the court at the case management stage.

Question 70

6.3.2 Small claims track and fast track

Answer 70

The court is more likely to restrict expert evidence in the small claims track and the fast track. Subject to a few exceptions that allow the court to restrict evidence, the normal procedural rules on expert evidence are disapplied to cases on the small claims track. The exceptions are: duty to restrict expert evidence (CPR 35.1), experts – overriding duty to the court (CPR 35.3), court’s power to direct that evidence is to be given by single joint expert (CPR 35.7) and instructions to a single joint expert (CPR 35.8).

Question 71

6.3.2 Small claims track and fast track

Answer 71

One of the factors the court will consider in allocating a claim to the fast track is that oral expert evidence at trial will be limited to: (a) one expert per party in relation to any expert field; and (b) expert evidence in two expert fields (CPR 26.6). Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue (CPR 35.4(3A)).

Question 72

6.3.3 Applying for permission

Answer 72

When parties apply for permission they must: (a) Provide an estimate of the costs of the proposed expert evidence; (b) Identify the field in which expert evidence is required and, if practicable, the name of the proposed expert (CPR 35.4(2)). This information should be set out on the directions questionnaire. The parties should exercise caution if naming an expert in the directions questionnaire because if the court orders a named expert to be used, the party will have to go back to court to obtain permission to use a different expert should there subsequently be any difficulty with using the named expert’s report. In this situation there is a risk of having to allow the other party to see the original expert’s report which could be detrimental to the party’s case.

Question 73

6.4 Duty and role of an expert

Answer 73

It is the duty of experts to help the court on matters within their own expertise and this overrides any obligation to the party instructing the expert (CPR 35.3). The duties and responsibilities of the expert were considered in National Justice Compania Naviera SA v Prudential Assurance Co Limited [1993] 2 Lloyds Ref 68 and became known as the Ikarian Reefer Guidelines also now incorporated into the rules (35 PD 2):

Question 74

6.4 Duty and role of an expert

Answer 74

(a) Expert evidence presented to a court should be the independent product of the expert, uninfluenced as to form or content by the pressures of litigation. (b) Independent assistance should be provided to the court by way of objective, unbiased opinion regarding matters within the expertise of the expert witness. An expert should never assume the role of the advocate. (c) An expert witness should state the facts or assumptions on which their opinion is based. Experts should not omit to consider material facts which could detract from their concluded opinion

Question 75

6.4 Duty and role of an expert

Answer 75

(d) An expert witness should make it clear when a question or issue falls outside their expertise. (e) If the opinion was not properly researched because it was considered that insufficient data was available, then that has to be stated with an indication that the opinion is provisional. (f) If, after exchange of reports, an expert witness changes their mind on a material matter, the change of view should be communicated to the other party, and when appropriate to the court. (g) Photographs, plans, survey reports and other documents referred to in the expert evidence must be provided to the other side at the same time as the exchange of reports.

Question 76

6.5 The process 6.5.1 Instructing experts

Answer 76

The letter of instruction to an expert is not privileged from inspection (CPR 35.10(4)). The court will not, however, require disclosure and inspection of a specific document or allow cross-examination of the expert in relation to those instructions unless it considers that the instructions, as summarised by the expert in the report, are inaccurate or incomplete.

Question 77

6.5.1 Instructing experts

Answer 77

The purpose of this rule is to try to balance the need for transparency about experts with the need for privilege, especially given the experts’ overriding duty to the court. A party who does not have reasonable grounds for suspecting instructions to be inaccurate cannot use this rule to force disclosure and inspection of the instructions. However, this rule means it is important to take care when providing instructions to an expert.

Question 78

6.5.2 Expert reports

Answer 78

Expert evidence is to be given in a written report unless the court directs otherwise (CPR 35.5). If the court gives permission for expert evidence, it will almost always require a report to be produced and served, and this can be relied on at trial. The report must be in the form required by the rules and must: * Be addressed to the court, not the instructing party * Set out the expert’s qualifications * Set out details on any material relied on

Question 79

6.5.2 Expert reports

Answer 79

* Set out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report * Make it clear which of the facts stated in the report are within the expert’s own knowledge (CPR 35.10(1)-(3) and 35 PD 3) * Explain who carried out any test or experiment relied on, give the qualifications of that person and say whether this was under the expert’s supervision

Question 80

6.5.2 Expert reports

Answer 80

* If there is a range of opinion on the matters dealt with in the report, summarise the range of opinion and give reasons for the expert’s own opinion * Contain a summary of the conclusions reached by the expert * If the expert is not able to give an opinion without qualification, state the qualification * Contain a statement that the expert understands their duty to the court and has complied with it, and is aware of CPR 35, 35 PD and the Guidance for the Instruction of Experts. The report should be verified by a statement of truth (35 PD 3.3):

Question 81

Example: Statement of truth for an expert’s report

Answer 81

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 82

Example: Statement of truth for an expert’s report

Answer 82

If an expert submits a draft report to its instructing party before it produces a final version to be adduced in evidence, the earlier draft is generally subject to litigation privilege and is usually therefore privileged from inspection. Privilege will be waived in the final version of the report when it is served.

Question 83

6.5.3 Exchange of expert evidence

Answer 83

Experts’ reports must be exchanged with the other side in order to be used at trial. There is usually a direction to this effect at the direction stage. The court can order either simultaneous or sequential exchange. Failure to exchange in accordance with the given directions means that the evidence cannot be used unless the court gives permission (CPR 35.13).

Question 84

6.6 Single joint experts

Answer 84

Rather than each party instructing its own expert, to save costs, the parties can agree to appoint a single joint expert. Even if they do not do so, the court has power to only permit a single joint expert. Pre-action protocols also encourage the use of single joint experts where appropriate. Single joint experts are often ordered in small claims track and fast track matters, but are less likely to be appropriate in complex multi-track claims. The court will give directions for a single joint expert on the fast track unless there is good reason not to do so (28PD 3.9).

Question 85

6.6 Single joint experts

Answer 85

A single joint expert should be copied into all relevant correspondence. There should be transparency at all times. For example, it might be practical for both parties to co-operate and produce a joint letter of instruction, although if each party gives separate instructions to the expert, it must send a copy to the other instructing party (CPR 35.8). If the parties cannot agree who should be the single joint expert, the court can select from a list prepared by the parties or direct that the expert by selected in some other manner.

Question 86

6.7 Questions 6.7.1 Questions by a party to experts

Answer 86

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

Question 87

6.7.1 Questions by a party to experts

Answer 87

* 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 88

6.7.2 Questions by experts to the court

Answer 88

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: (a) 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 (b) provide a copy to all other parties at least 4 days before filing it at court.

Question 89

6.7.2 Questions by experts to the court

Answer 89

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 90

6.8 Discussions between experts

Answer 90

Where each party has submitted evidence from their own expert, the rules make provision for the court to direct the experts to discuss the various expert issues in dispute (CPR 35.12). This is so that the experts can identify the issues in the case and (where possible) reach an agreed opinion. It is common for the court to exercise this power as it usually saves time and cost at trial. The court can specify the issues which the experts must discuss and direct a joint statement to be produced after the meeting, setting out the issues on which the experts agree and those on which they do not (with a summary of reasons)

Question 91

6.8 Discussions between experts

Answer 91

Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound. However, parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs. Unless ordered by the court or agreed by the parties and the experts, neither the parties not their legal representatives attend the experts’ discussion. If the legal representatives attend, they should not normally intervene except to answer questions or to advise on the law

Question 92

6.8 Discussions between experts

Answer 92

Any party who considers that its expert has stepped outside their expertise or who has acted incompetently in reaching an agreement can argue that: * The agreement should not be accepted by the court * The party should adduce further expert evidence if it felt there was a good reason to suppose that the first expert has modified their opinion for reasons that cannot properly and fairly support their revised decision, and such a procedure is reasonably required to resolve the proceedings. The content of discussions between experts should not be referred to at trial unless the parties agree. In other words, they are without prejudice.

Question 93

6.9 Oral evidence at trial and ‘hot-tubbing’

Answer 93

The court may also grant permission to call the expert to give oral evidence at trial. 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. If the court does give permission to call the expert to give oral evidence at trial, then the claimant will often present all the evidence supporting its case first including, if appropriate, the oral evidence of its experts and then the defendant does the same.

Question 94

6.9 Oral evidence at trial and ‘hot-tubbing’

Answer 94

However, the court can direct expert oral evidence is given in a different way, eg on an issue-by-issue basis (each side having a turn to call witnesses / experts in relation to that issue) or by hot-tubbing. Hot-tubbing is where some or all the evidence of experts from similar disciplines is given concurrently. In relation to an issue (usually set out in an agenda set by the court or agreed by the parties) the judge will ask the experts, in turn, for their views on the issues on the agenda. The judge may ask questions or invite the other expert to comment and then the judge will invite the parties’ representatives to ask questions.

Question 95

6.9.1 Unfavourable expert reports

Answer 95

Options to a party who receives an unfavourable report from an expert instructed by that party or from a single joint expert: If a party decides that it would prefer to call a different expert witness, it must seek the court’s permission to do so (CPR 35.4). If a party seeks to adduce the evidence of a second expert, the court will often only allow this on the condition that the first report be disclosed. This seeks to prevent a party from ‘expert shopping’ (looking out for the opinion most favourable to its case)

Question 96

6.9.1 Unfavourable expert reports

Answer 96

There might be considerable difficulties in obtaining the court’s permission to adduce a second expert’s report, as well as possible cost sanctions and/or loss of credibility. While the court can permit a party to adduce evidence by a different expert, it should only do so in exceptional circumstances. The mere fact that the original expert has changed their mind after a meeting with the other party’s expert is not usually a sufficient reason for such permission to be granted.

Question 97

6.9.1 Unfavourable expert reports

Answer 97

If a party decides it is not intending to rely on its expert’s report once that report has been disclosed, the other party may still rely on the report at trial (CPR 35.11). Ultimately, if an expert’s report is unfavourable, the party should be thinking about the possibility of settlement.

Question 98

6.10 Summary

Answer 98

* 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.

Question 99

6.10 Summary

Answer 99

* 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.