Expert evidence Flashcards
What is expert evidence?
Evidence given by a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise.
Does an expert need formal qualifications?
No, the experience of an expert does not need to be formal; they should be reasonably qualified and experienced.
What is the court’s duty regarding expert evidence?
The court must restrict evidence to that which is reasonably required to resolve proceedings.
Can a party instruct multiple experts?
Yes, a party may instruct as many experts as it likes but needs the court’s permission to rely on expert evidence in the proceedings.
When should parties seek direction from the court?
Parties should seek direction from the court at the Case Management Conference (CMC).
How does the court typically restrict expert evidence in small claims track?
Permission is usually given for evidence from only one expert on one particular issue.
How does the court typically restrict expert evidence in fast track?
Oral expert evidence at trial is limited to one expert per party in relation to any expert field and expert evidence in two expert fields.
What must parties provide when applying for permission for expert evidence?
They must provide an estimate of the costs of the proposed expert evidence and identify the field in which expert evidence is required, and if practicable, the name of the proposed expert.
What is the duty of the expert?
The duty of the expert is to help the court on matters, not the party instructing.
What is the role of the expert?
- Be uninfluenced and provide an unbiased account
- Never assume the role of advocate
- State facts or assumptions on which their opinion is based
- Make it clear when something falls outside their experties
- Indicate that an opinion is provisional
- Provide a plan/reports/photos at the same time
Ikarian Reefer Guidelines
Are letters of instruction privileged?
No - but the court will generally not require disclosure of a document of those instructions
What should be included in an expert report?
An expert report must
- Be addressed to the court
- Set out qualifications
- Summarize a range of opinions if applicable
- Include a statement that the expert understands their duty to the court.
- Statement of truth
What happens if expert reports are not exchanged?
Failure to exchange reports in accordance with directions means evidence cannot be used unless the court gives permission.
Why are Single Joint Experts encouraged?
To save costs - therefore used on the fast track unless good reason not to
How are single joint experts chosen?
By agreement of the parties, or if they can’t agree, the court can select from a list. Once chosen they should be copied into all correspondence
What are the rules regarding questions to experts?
Written questions can be put only once for clarification purposes, must be submitted within 28 days of service of the report, and answers become part of the report.
No time limit for the expert to respond to the question.
What must experts provide when requesting directions from the court?
Experts must provide a copy of any proposed request for directions to the party instructing them at least 7 days before filing it at court and then to all other parties at least 4 days before filing at court.
What is the purpose of discussions between experts?
Experts can discuss issues and reach an agreed opinion to save time and costs, but agreements do not bind the parties unless expressly agreed.
Refusal to agree could become relevant when determining costs.
What form of privilege does disucssion between experts attract?
Without prejudice
When will the court give permission for expert evidnece at trial in the SC and FT?
If it is in the interests of justice to do so
If permitted, how is expert evidence given at trial?
Most common way of presenting expert evidence:
- C presents all evidence supporting its case (including expert evdience)
- D does the same
can also be done on an issue by issue basis
What is hot tubbing in the context of expert evidence?
Hot tubbing is when evidence from experts of similar disciplines is given concurrently.
What can parties do with unfavorable expert reports?
Parties can put questions, seek a direction for the expert to give oral evidence at court, or seek advice from a different expert advisor.
What must a party do if they wish to call a different expert witness?
They must seek the court’s permission to do so.
