Dispute Resolution - Expert Evidence

Question 1

Restrictions on Expert Evidence

Answer 1

• Opinion must depend on special knowledge, skill or training that is not within the ordinary experience of a judge - unusual to call a legal expert witness
• Expert must have true expertise in the field
• Expert must give evidence to a reasonable degree of certainty
• Expert must be able to demonstrate basis of opinions

Question 2

Ethical Obligations

Answer 2

Duty to the court overrides any duty owed to the instructing party

Objectivity

Should not accept gifts from instructing solicitor

Should decline to act if they know the parties

Ensure that the court does not use their evidence without knowing the scientific limitations

Question 3

How expert evidence is given

Answer 3

Default position is expert does not attend trial unless directed to

For expert to give oral evidence, party requesting oral evidence must establish that:

1. Evidence likely to impact outcome
2. Evidence will assist the judge
3. There would be a risk of injustice if not tested
4. Costs are not disproportinate

If claimant’s expert is to give evidence they will give evidence after the claimant’s witnesses of fact but before the other side’s witnesses of fact and experts

Court may order for both experts to give evidence at the same time - “hot-tubbing”

If expert gives evidence orally their report stands as evidence in chief and they may be cross-examined

Question 4

Direction of Expert

Answer 4

Single joint expert

In multi-track cases each party may instruct their own expert - must justify this at a CMC, e.g. case is high value and complex

Question 5

Instructing an expert

Answer 5

• Instructing party serves copy of the directions order on the expert
• Both instructions to an expert and report itself are protected by litigation privilege and, therefore, need not be disclosed to opposing party
• If party wants to rely on expert report it must be disclosed - once disclosed it loses its privilege

Question 6

Asking Expert Questions

Answer 6

Can ask questions of own expert or other party’s expert within 28 days of report being provided - can be extended for good reason

Questions must be proportionate for clairification of the report

Each party must send a copy of their questions to the other party

If parties have been allowed their own experts the experts will usually have to hold a without prejudice meeting to identify areas of disagreement/agreement:

• Instructing solicitors should not be in attendance
• Report should be provided after meeting

Question 7

Agreed expert

Answer 7

Personal injury cases

Nominated by claimant’s representative during pre-action protocol process

If defendant does not object to their instruction the claimant will obtain report

Not jointly instructed and defendant retains right to instruct their own expert

Question 8

Privilege

Answer 8

Both instructions and report are privileged - therefore, if party does not wish to rely on report it need not be disclosed