Expert Evidence

Question 1

Can you adduce expert opinion evidence

Answer 1

Yes - court order required

Question 2

Applying for permission to adduce expert evidence

Answer 2

Provide estimate of costs

Identify field in which expert required and possibly name

Caution: if expert is named, court permission required to use a different expert if issue with using named expert’s report. Risks allowing other party to see the report

Question 3

Expert evidence in small claims track

Answer 3

Restricted - usually only one expert in form of written report

Expert not attend unless necessary in interests of justice

Question 4

Expert evidence in fast track

Answer 4

One expert on particular issue per party, limited to 2 expert fields

Written report unless necessary in interests of justice for expert to attend

Question 5

Duty of expert

Answer 5

Overriding duty to court to help on matters within expertise

Independent opinion

Indicate it matters not within expertise

Take into account all material facts

Indicate is opinion is qualified or further info required

Question 6

Role of expert

Answer 6

Produce independent report uninfluenced by pressure of litigation

Provide assistance to court with objective unbiased opinion

state facts and assumptions on which opinion is based

Provide docs referred to in report at same time as exchange of teports

Question 7

Is letter of instruction privileged?

Answer 7

No

Question 8

Will court require disclosure of letter of instruction

Answer 8

Court will not require disclosure, inspection or cross examination of expert in relation to instructions UNLESS it considers instructions summarised in report are inaccurate or incomplete

Question 9

Single joint expert

Answer 9

Parties can agree to save costs

Often ordered in small and fast track

SJE copied into all correspondence for transparency

Question 10

Instructions to single joint expert

Answer 10

Ideally parties produce joint letter

If instruct separately, share separate letters with each party

Question 11

Draft expert report

Answer 11

If expert submits draft report to instructing party before producing final report to be adduced, earlier draft is subject to litigation privilege

Question 12

Exchange of reportd

Answer 12

Direction will be given - can be simultaneous or consequential

Question 13

Failure to exchange expert report

Answer 13

Evidence cannot be used unless court gives permission

Question 14

Questions by party to expertd

Answer 14

After exchange, parties can put written questions to expert ONCE for clarification

Must be submitted within 28 days of service of report

Send copy of question to other party

No time limit for expert to respond

Answers become part of report

Question 15

If expert does not answer questions from party

Answer 15

Court can order that party who instructed cannot rely on their evidence or recover fees

Question 16

Questions by expert to the court

Answer 16

May submit written request for direction

Provide instructing party copy of proposed request 7 days before filing and all other parties 4 days before filing

Question 17

Discussions between expertd

Answer 17

Where each party has submitted evidence from own expert, rules make provision for court to direct expertd to discuss matters in dispute

Court can specify issues

Can require single joint statement setting out agreed / disputed issues

Question 18

Do agreements between experts bind parties

Answer 18

No unless agree to be bound

Refusal can be relevant to costs

Question 19

Can parties attend discussions between experts

Answer 19

No unless court directs - content of discussion should not be referred to at trial unless parties agree

Question 20

If party thinks expert was incompetent or outside expertise ?

Answer 20

Agreement should not be accepted by court

Party should adduce further expert evidence if good reason to suppose first expert modified opinion for reasons that cannot properly and fairly support revised decision

Question 21

Oral expert evidence at trial

Answer 21

Court may grant permission

Claimant present all evidence first, inc witness, then D does same

Question 22

Unfavourable expert report

Answer 22

Party can put questions to expert

Can seek direction for expert to give oral evidence

Seek advice from another expert - if substantially different, seek permission to call new expert
- can use new expert to prepare questions to cross examine expert

If want to call another expert, permission required
- usually only given on basis first report is disclosed

Question 23

What should party do if unfavourable expert report

Answer 23

Consider settlement