Expert Evidence Flashcards
Which CPR rule and PD are key regulations that govern the presentation of expert evidence in civil proceedings?
CPR r35 and PD35.
in the case of Declan Colgan Music Ltd v UMG Recordings Inc [2023] EWHC 4 (ch) [55]-[61] , what were the three initial considerations regarding expert evidence?
its admissibility
its classification as expert evidence under CPR 35 and
its necessity to resolve the case.
Which rules are noted as subject to permission to present expert evidence?
r.35.1 and r35.4 and the overriding objective.
Under 35.0.1.1, what is expert evidence deemed as to the general rule of only factual evidence being admissible?
An exception.
What four considerations did the case of Kennedy v Cordia (Services) LLP establish governing the admissibility of such evidence?
relevance: evidence must assist court in its task.
qualifications: expert must possess necessary knowledge and experience.
impartiality: evidence must present and assess evidence impartially.
reliability: there must be a reliable body of knowledge or experience supporting the expert’s evidence.
When do the four considerations apply as mentioned in the case of Kennedy v Cordia?
they apply to both expert opinion and factual evidence.
What can expert witnesses provide?
opinions within their expertise such as tech or scientific matters but not on legal issues.
are opinions on witness credibility or reliability admissible?
No
What are the main exceptions to the general exclusionary rule in relation to evidence of opinion under s3 of the Civil evidence Act 1972?
s3(1): where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which is is qualified to give expert evidence shall be admissible in evidence.
s3(2): a statement of opinion by him on any relevant matter on which he isn’t qualified to give expert evidence is admissible as evidence of what he perceived.
Under CPR 35.1- what will expert evidence be restricted to?
which is reasonably required to resolve the proceedings.
Under CPR 35.1.1, what is the effect of the rule?
expert evidence can only be presented with the court’s permission. The court has authority not to only to direct the issues requiring evidence but also to dictate the nature and presentation of that evidence.
this power extends to excluding otherwise admissible evidence if it aligns with the overriding objective.
In Re RBS (Rights Issue Litigation) [2015], what two elements did r35.1 comprise of?
the evidence admissible and
is the evidence reasonably required to resolve the proceedings?
What is admissibility contingent upon?
the presence of recognised expertise governed by relevant standards and rules.
Under CPR 31.1.2, what have certain types of cases have raised?
particular issues concerning the question of whether expert evidence is reasonably required.
under CPR r35.1.3, which small claims cases are deemed for expert evidence to be unnecessary?
second hand car valuations.
which small claim cases are considered sufficient for expert evidence to be deemed necessary?
published and reputable valuation guides- see Bandegani v Norwich Union Fire Insurance Society Ltd.
In the case of Clifford v Chief Constable of Hertfordshire [2008] (see 35.1.6), what was the reason for a computer science expert being refused?
because issues in dispute were purely factual.
Under CPR 35.2, how is an expert defined?
a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.
under CPR 35.2, how is a single joint expert defined?
an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the claimant) to the proceedings.
Under CPR r35.3, what is the overriding duty to the court in relation to experts?
it is the duty of experts to help the court on matters within their expertise and this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
Under CPR 35.3.2, What are experts in legal proceedings obligated to do?
understand their duties and responsibilities under common law and procedural rules.
What can happen if there is a failure of experts understanding their duties and responsibilities as mentioned under CPR 35.3.2?
it can lead to sanctions and undermine the integrity of the judicial process- R v Pabon.
Under the case of National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993], what are the following duties for experts?
expert evidence must be independent and uninfluence by litigation demands
they should provide unbiased assistance to the court, offering objective opinions within their expertise.
experts must state the facts or assumptions underlying their opinions and consider all material facts to avoid bias.
they should clarify when a question or issue falls outside their expertise.
if an opinion isn’t thoroughly researched due to insufficient date, this must be indicated as provisional
any change in opinion after exchanging reports should be promptly communicated to the other party and the court.
All documents reference in expert evidence must be provided to the opposing party simultaneously with the exchange of reports.
What did Stuart Smith LJ state as to cases involving fire?
experienced fire experts may need to utilise other skills or knowledge such as mechanical or chemical expertise to assess evidence accurately.
In Kennedy v Corida, what did the Supreme Court clarify about the 7th Duty?
the 7th duty only applies to items not already accessible to the opposing party.
in Anglo Group Plc v Winther Browne & Co Ltd, what was emphasised about expert witnesses?
they should:
clearly state if any question or issue falls out of their expertise
reconsider their conclusions if based on inadequate evidence
Be open to changing their opinion when presented with ne info or considering the opinion of another expert, doing so promptly and at the earliest opportunity.
What did the case of Royal & Sun alliance Trust Co Ltd v Healey & Baker establish as to the duty of an expert to the court
this duty entails providing opinions on the entirety of the relevant subject matter and not selectively presenting evidence favouring the instructing party.
In imperial Chemical Industries Ltd v Merit Merrell Technology Ltd, what were the key considerations Fraser J emphasise regarding the importance of experts?
experts within the same discipline should have equal access to relevant material.
independent experts should refrain from expressing preferences for particular version of facts
experts should avoid taking partisan stances during interim applications.
the process of experts meeting and reaching agreements should be governed by the CPR and conducted in a constructive and cooperative manner, with consideration for overriding objective.
if new material emerges close to trial necessitating further analysis, the opposing expert should be promptly informed. Experts should avoid surprising the other party with new reports during trial, except in exceptional circumstances.
experts should adhere to the principles outlined in the Ikarian Reefer.
After Covid 19 pandemic, what do courts expect experts and lawyers to demonstrate for effective case management?
flexibility, creativity and readiness to adapt to remote tech for effective case management.
True or false:
under 35.4(1), a party may call an expert/ put in evidence an expert’s report without the court’s permission?
True.
Under 35.4(2), when parties apply for permission, they must provide an estimate of the costs of the proposed expert evidence and identify which two of the following?
the field in which expert evidence is required and the issues which the expert evidence will address; and
where practicable, the name of the proposed expert.
under 35.4(3A), where a claim has been allocated to either the small claims or fast track and permission is given, what is the permission given for?
normally be given for evidence from only one expert on a particular issue.
Under 35.4(4), what can the court do in relation to the party’s experts fees and expenses that may be recovered from any other party.
Limit the amount of the fees and expenses.
Under CPR 35.4.2, where can permission be granted from?
court’s case management directions or by application from a party.
TRUE or False:
Early consideration of intentions regarding expert evidence is encourage by the court
TRUE
true or false:
attempting to present expert evidence within or as part of a witness statement doesn’t bypass the requirement for court permission.
True
True or false:
In challenges to jurisdiction, parties should seek permission to introduce foreign law expert evidence under CPR r35.4 rather than merely exhibiting it to factual evidence.
True
True or false:
In Pipia v BGEO Group Ltd, it was held that expert evidence for applications such as security for costs need not strictly comply with Part 35 and could be provided through witness statements following a flexible approach endorsed by the Court of Appeal
True
Under 35.4.2.1, CPR Part 35 doesn’t cover all scenarios regarding expert evidence but what does it specifically apply to?
applies specifically when expert evidence is provided by experts instructed for the immediate proceedings.
TRUE OR FALSE:
if a party wishes to rely on expert evidence from previous proceedings, they may present it as hearsay evidence
True
What does the court have discretion to do under CPR r32.1(2)?
they have discretion to exclude such evidence, though it should exercise caution doing so.
True or false:
the court may exclude evidence before trial if allowing its use would result in disproportionate costs
true
On which party does the test for permission to adduce expert evidence place the burden on?
the party seeking to present it requiring them to convince the court of its utility.
what is the necessity of expert evidence is determined on?
based on the specific facts of each case, aligned with the overriding objective of litigation efficiency.
In the case of Barings Plc (In Liquidation) v Coopers & Lybrand, what was said regarding the admissibility of expert evidence?
it’s generally admissible if it pertains to issues governed by recognised standards and rules of conduct but the court retains discretion to exclude it if deemed unhelpful.
What is the three stage test as mentioned by British Airways plc v Spencer?
Is expert evidence necessary to decide an issue, rather than merely helpful? if yes, it should be allowed.
if it’s not necessary will it assist the judge in determining an issue? if it would assist but is not necessary then the court should consider,
if expert evidence on that issue was reasonably required to determine the proceedings, taking into account factors such as the value of the claim, proportionality, costs and potential delays.
R (Banks Renewables Ltd) v Secretary of State for Business Energy and Industrial Strategy, when can expert evidence be introduced?
with the court’s permission
True or False:
if permission to adduce expert evidence is denied and not granted on appeal, it’s not permissible to challenge an award of damages based on the absence of such evidence in a subsequent trial appeal
true.
What does the pre-action protocols for personal injury and clinical negligence say in relation for expert evidence?
advocate for early identification of the need for expert evidence during claim investigation
In fast track personal injury cases, what are parties encouraged to do?
to appoint a single expert in a specific discipline rather than multiple experts per party. However, protocols assume that the claimant will engage the expert allowing the defendant to comment on the expert’s identity in advance and question the report.
When are separate letters of instruction provided?
when CPR assumes joint instruction of experts by the parties, unless ordered otherwise by the court.
What did the case of Carlson v Townsend state about the Personal Injury Pre-Action Protocol?
it doesn’t mandate joint instruction of medical experts or disclosure of their reports to the defendant. These remain privileged and court can’t compel their production, although claimant would require court permission to rely on another expert’s report in proceedings.
What are the 6 rules for changing expert witnesses as outlined by Avantage (Cheshire) Ltd v GB Building Solutions Ltd [2023]?
- court can allow a party to switch experts under r35.4 or general case management powers in r3.1(2).
- discretion should consider all circumstances and the overriding objective.
- the court won’t deny a party permission to switch experts.
- if permission is needed to switch, the court may require disclosure of the original expert’s reports to prevent expert shopping and ensure fairness.
- this disclosure prevents bias and ensures the expert’s input is available to all parties and the court.
- court may extend condition to other documents but must weigh privilege concerns and the documents’ value carefully.
In the case of Edwards- Tubb v JD Wetherspoon Plc, what did the court appeal rule about the claimant?
if a claimant switches experts after obtaining a report pre-issue, they must disclose the earlier report, this discourages expert shopping.
in the case of Bowman v Thomson [2019] why couldn’t conditions be imposed?
C switched experts without disclosure and since no conditions were set for permission, none could be imposed.
What was held in Rogerson v Eco Top Heat & Power Ltd [2021]
Conditions for disclosure depend on the circumstances.
In Burke v Imperial College Healthcare NHS Trust [2019], what did this case say regarding the changing of experts during a case management conference?
that this would require full disclosure to prevent expert shopping.
True or false:
Pre action protocols for low value personal injury claims in RTAs and Low value employment and public liability claims have specific rules for obtaining med reports and that C can select expert without involving D’s insurer in choice of expert?
True.
What does the Pre-action protocol for Pro Neg claims encourages parties to do?
encourages parties to co-operate when deciding on appropriate expert specialisations, whether experts might be instructed jointly and whether any reports obtaining pre-action might be shared.
What does the Housing Disrepair protocol encourage?
joint selection and instruction of a single joint expert.
Under 35.5(1), where should expert evidence be given?
a written report unless the court directs otherwise.
under 35.5 (2), if a claim is on the small claims track or fast track, what will the court do?
not direct an expert to attend a hearing unless necessary to do so in the interests of justice.
under 35.6 (1), who can a party put written questions about an expert’s report?
an expert instructed by another party or a single joint expert appointed under rule 35.7
under 35.6(2), what are the 3 requirements for written questions under para 1
- they may be put once only
- they must be put within 28 days of service of the expert’s report; and
- must be for the purpose only of clarification of the report unless in any case-
(i) court gives permission or
(ii) other party agrees.
under 35.6(3), what will the experts answers to the questions be treated as?
part of expert’s report.
under 35.6(4), where a party has written question to an expert instructed by another party and that the expert doesn’t answer that question, what orders can the court make to the party who instructed the expert?
- that the party may not rely on that expert’s evidence or
- the party may not recover fees and expenses of that expert from any other party.
under 35.7 (1), when two or more parties wish to submit expert evidence on a particular issue, what can the court do?
direct evidence on that issue to be given by a single joint expert.
under 35.7, what can the court do when the parties who wish to submit the evidence can’t agree who should be the single joint expert?
select the expert from a list prepared or identified by the relevant parties; or
direct that the expert be selected in such other manner as the court may direct.
in the case of D (a child) v Walker [2000], what is the guidance when one party may not be satisfied with the expert’s report and wish to seek further expert evidence if they jointly instruct a single expert with another party?
- the instruction of a joint expert should be seen as the initial step in obtaining expert evidence.
- if a party has vali reasons for seeking further info before deciding whether to challenge joint expert’s report, they should be allowed to obtain additional evidence subject to court’s discretion.
- it’s advisable not to immediately request permission to appoint a second expert but rather to assess the situation comprehensively.
- factors such as the amount involved in the case and the potential disproportionality of obtaining a second report may influence the decision.
- before deciding to call additional experts to give oral evidence, parties should explore other options due to expense involved.
- court’s decision to permit further expert evidence is based on achieving overall justice to the parties and is subject to a fact-sensitive approach.
In the case of Popek v National Westminster Bank Plc [2002], what have the courts reiterated about?
the need for a discretionary approach, considering the specific circumstances of each case and the overriding objective of achieving justice.
Under 35.8(1), who can give instructions to the joint expert?
any relevant party
under 35.8(2), what must a party also do when giving instructions to the expert?
send a copy to the other relevant parties.
under 35.8(3), what can the court give directions on?
a. the payment of the expert’s fees and expenses and any inspection, examination or experiments which expert wishes to carry out
under 35.8(4), what can the court do before an expert is instructed?
limit the amount that can be paid by way of fees and expenses to the expert and direct that some or all of the relevant parties pay that amount into court
true or false:
unless the court directs, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses under 35.8 (5)?
true.
under 35.9, what can the court direct a party who has access to information which isn’t reasonably available to another party to do?
prepare and file a document recording the information and serve a copy on the other party.
under 35.10, what must the contents of the expert report have?
- it must comply with requirement set out in PD35.
- at the end of the report, there must be a statement that the expert understands and has complied with their duty to the court.
- it must state substance of all material instructions, whether written or oral on the basis of which the report was written.
under 35.10 (4), what will the court not do in relation to the instructions?
order disclosure of any specific document or
permit any questioning in court, other than by the party who instructed the expert unless it’s satisfied that there are reasonable grounds to consider the statement of instructions given under para 3 to be inaccurate or incomplete.
under 35.11, when a party has disclosed an expert report, what can any party do with that report?
use expert’s report as evidence at trial.
under 35.11.1, can a report still be relied on if a party who disclosed it ceases to be involved and does this need specific permission from the court?
Yes to both elements, the remaining parties can rely on these reports without seeking specific permission from the court but party intending to use these reports should inform other parties about their intention and purpose for which they plan to rely on them.
true or false:
if two claims are being managed and tried together but haven’t been formally consolidated, a party in one claim can’t use r35.11 to relay on a report disclosed by a party in the other claim.
true.
under 35.12 (1), what two purposes can a court direct a discussion between experts?
a. identify and discuss the expert issues in the proceedings
b. where possible, reach an agreed opinion on those issues.
under 35.12(2), can the court specify issues which the experts must discuss?
yes.
under 35.12 (3), on which issues must the experts prepare a statement that sets out those issues for the court?
issues on what they agree and issues on what they disagree with a summary of their reasons for disagreeing.
true or false:
the content of the discussion between the experts shall be referred to at the trial unless the parties agree.
false:
this will not be referred to unless the parties agree to.
under 35.12(5), where experts reach agreement on an issue during their discussions, is the agreement binding on the parties?
no unless the parties expressly agree to be bound by the agreement.
under 35.13, what are the two consequences of failing to disclose an expert report?
unable to use the report or call the expert to give evidence orally unless court gives permission.
true or false:
under 35.14 (1), experts may file written requests for directions for the purpose of assisting them in carrying out their functions?
true.
under 35.14 (2)(a), how many days must the expert provide a copy of the proposed requests to the party instructing them?
7 days before filing the requests
under 35.14(2)(b), how many days must the expert provide a copy of the proposed requests to all the other parties?
4 days before they file them.
in which case did Judge Richardson establish that principles outlined by Carr J in Quah v Goldman Sachs International [2015] regarding late application to amend also apply to late applications to introduce expert evidence and amend?
Bhaloo v Fiat Chrysler Automobiles UK Ltd [2019]
true or false:
a judge is entitled to prefer the evidence of a witness of fact to that of an expert witness but should give reasons justifying that preference?
true
What did Flannery v Halifax Estate Agencies [2000] emphasise?
a judge has to give sufficient reasons for preferring evidence of one expert to another expert and failure to do so may be valid grounds for an appeal and for remitting the case back for a re-trial.
true or false:
experts in legal proceedings are permitted to provide evidence on ultimate issue which is to be decided by the court?
true.
What are experts not allowed to determine on
ultimate issues as it lies with the court who makes its decision based on evidence presented.
where does the ultimate decision rest with?
the judge and not the expert.
under PD35.1, What is part 35 intended to do?
limit the use of oral expert to that which is reasonably required.
true or false:
matters requiring expert evidence should be dealt with by only one expert
true
Under PD35 2.1, what should expert evidence be the ‘independent product of’?
an expert uninfluenced by the pressures of litigation
What should the expert assist the court by doing?
providing objective, unbiased opinions on matters within their expertise and shouldn’t assume role of an advocate.
true or false:
experts shouldn’t consider material facts including those which might detract from their opinions.
false:
they should consider the material facts including those which detract.
under PD35 2.4, what 2 things do experts need to make clear?
when a question or issue falls outside their expertise and when they aren’t able to reach a definite opinion.
if an expert’s view changes on a material matter, what must they do?
this should be communicated to all parties without delay and when appropriate to the court.
under PD3.2, what must the expert report contain?
qualifications of expert.
any literature or other material which has been relied on in making the report
a statement setting out substance of all facts and instructions which are material to opinions expressed in report or upon which those opinions are based.
make clear which facts are within expert’s own knowledge.
who carried out any examination for the report and say whether this has been carried out under expert’s supervision.
where there is a range of matters, this must be summarised and give reasons for expert’s own opinion
contain a summary of the conclusions reach
if expert isn’t able to give an opinion without qualification, state the qualification.
contain a statement that the expert understands the duty to court and has complied with this can is aware of part 35, PD35 and guidance for instruction of experts in civil claims 2014.
PD35.4: what must the document served under r35.9 must include
sufficient details of all the facts, tests, experiments and assumptions which underlie any part of info to enable party on whom it is served to make or to obtain a proper interpretation of the info and an assessment of its significance
PD35.5: when will cross-examination of experts in the contents of their instructions be allowed
when court permits it or if party who gave instructions consent
before giving permission to cross examine, what must the court be satisfied on?
there are reasonable grounds to consider that the statement in the report is inaccurate or incomplete.
under PD35.6, what must the party (ies) do for that expert as a result of answering their questions under 35.6
pay any fees charged by that expert and this doesn’t affect decision of court as to party who is ultimately to bear expert’s fees.
under PD35.7, what will the court take into account when considering evidence should be from a single joint expert?
a. it is proportionate to have sep experts for each party on particular issue with ref to amount in dispute, importance to parties and complexity of issue.
b. instruction single joint expert is likely to assist parties and court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts.
c. expert evidence is to be given on the issue of liability, causation or quantum.
(d) the expert evidence falls within a substantially established area of knowledge which is unlikely to be in dispute or there is likely to be a range of expert opinion; (e) a party has already instructed an expert on the issue in question and whether or not that was done in compliance with any practice direction or relevant pre-action protocol; (f) questions put in accordance with rule 35.6 are likely to remove the need for the other party to instruct an expert if one party has already instructed an expert; (g) questions put to a single joint expert may not conclusively deal with all issues that may require testing prior to trial; (h) a conference may be required with the legal representatives, experts and other witnesses which may make instruction of a single joint expert impractical; and (i) a claim to privilege(GL) makes the instruction of any expert as a single joint expert inappropriate
PD35.8, where an order requires an act to be done by an expert or affects an expert, what must the instructing party do
serve a copy of the order on the expert.
true or false:
C must serve order on single joint expert.
true.
PD35.9: are discussions between experts mandatory?
no unless directed by court
what must parties consider with their experts at an early stage?
whether there is likely to be any useful purpose in holding an expert’s discussion and if so when.
what is the purpose of discussions between experts other than to agree and narrow issues?
extent of agreement between them
the points of and short reasons for any disagreement
action, if any, which may be taken to resolve any outstanding points of disagreement and any further material issues not raised and the extent which these issues are agreed.
where parties are to meet, what must the parties consider?
whether an agenda is necessary. if so, agree one that helps experts focus on issues and agenda must not be in form of leading questions or hostile in tone.
true or false: parties and legal reps can attend expert discussions?
false: they can’t
what are the two points in which must be followed if legal reps do attend?
not intervene unless to answer questions put to them by experts or to advise on law and
if experts wish to hold part of their discussions without legal reps, they may do so.
when must copies of the statements be provided to the parties in terms of signing ?
no later than 14 days after signing
when must individual copies of a statement by experts be signed?
at conclusion of discussion, soon thereafter as practicable and any event within 7 days.
true or false:
experts must give their own opinions to assist court and don’t require authority of parties to sign join statement
true
if expert significantly alters an opinion, what must the joint statement include?
a note or addendum by that expert explaining change of opinion
