EXPERT EVIDENCE

Question 1

DEFINITION OF AN EXPERT

Answer 1

1. The CPR defines an expert as ‘a person who has been **instructed **to give or prepare expert evidence for the purpose of proceedings’.
2. It can be anyone with knowledge or experience of a particular field or discipline.
3. A professional qualifcation is preferred but it is not essential

Question 2

4

EXPERTS CAN GIVE OPINION EVIDENCE

Answer 2

1. Whilst lay witnesses generally may not state their opinions, experts may do so on any relevant matter so long as the expert is qualifed to give the opinion and the expert evidence is **reasonably required **to resolve the proceedings.

2.In any case, expert opinion is subject to four basic conditions:
*The opinion must depend on special knowledge, skill, or
training that is **not within the ordinary experience of the judge;
*The expert must demonstrate that they can be regarded as a true expert** in the particular field of expertise;
*The expert must give evidence to a reasonable degree of certainty regarding their opinion, inference, or conclusions; and
*The expert must be able to demonstrate the** basis** of their
opinion and conclusions.

Question 3

4

As a general rule, expert evidence is to be given in a written report addressed to the court rather than the party instructing the expert, unless the court directs otherwise.
A report prepared by an expert should

Answer 3

*Be independent and uninfluenced;
*Provide an objective unbiased opinion;
*State the facts on which the opinion is based; and
*Make clear when an issue falls outside the author’s fiIeld of experience or where there is insufficient evidence or research on which to base an opinion.

Question 4

ORAL EVIDENCE

Answer 4

Unlike witnesses of fact who will generally attend court and give oral evidence in response to being cross-examined, the default is that experts will not attend court unless the court directs that oral evidence may be given.

Question 5

EXPERT CHANGING OPINION

Answer 5

If an expert changes their opinion at any time, they should notify their instructing solicitor promptly.

Question 6

3

SINGLE JOINTEXPERTS

Answer 6

1. The parties should try to agree the identity of the single joint expert.
2. If this is not possible, the court will choose from a list provided by the parties.
3. The parties share the fee until conclusion, at which point the losing party assumes responsibility.

Question 8

4

single joint expert Distinguished from Agreed Experts

Answer 8

1. A single joint expert must be distinguished from an agreed expert in a personal injury claim.
2. Claimants in personal injury cases often rely on an ‘agreed’ expert, that is, an expert nominated by the claimant’s representative in the **pre-action protocol **process.
3. If the defendant does not object to their instruction, the claimant will obtain a report for potential agreement.
4. However, the parties do not jointly instruct an agreed expert and the defendant retains the right to instruct their own expert if they are unhappy with the conclusions of the agreed expert.

Question 9

OWN EXPERTS

Answer 9

The court may allow the parties to obtain reports from their own experts in specifed fIelds. This is more likely in the multi-track. A party who wishes to instruct their own expert must persuade the court that it is reasonable to do so.

Question 10

3

INSTRUCTING EXPERTS

Answer 10

1. The instructing party must serve a copy of the directions order on the expert
2. Both the instructions to and an expert’s report prepared for a party are privileged documents. There is no obligation to disclose a report on which a party does not propose to rely.
3. However, if a party wants to rely on a report, it must be disclosed. A disclosed report loses its privilege and the other party can rely on it.

Question 11

3

QUESTIONS TO AN EXPERT

Answer 11

1. The parties can ask questions of the expert within 28 days of the expert sending the report.
2. The questions should be proportionate, for clarifcation of the report.
3. Each party must send a copy of their questions to the other party.

Question 12

3

DISCUSSION BETWEEN EXPERTS

Answer 12

1. IF the court allows the parties to have their own experts, the directions order is likely to include the requirement that the parties arrange** a ‘without prejudice’ meeting** for the experts to identify issues, if any, on which the experts might come to an agreement and those issues on which they can (and cannot) agree.
2. The meeting may take place at any time, by arrangement between the parties, and it may take place over the telephone.
3. Legal representatives should not be present when the experts meet.