Expert Evidence Flashcards
What is the general rule concerning opinion evidence?
When can an expert be called?
Under what statute comes the power to call expert evidence?
Witness must only speak about what they directly observed - not to give opinion
But if special skill or expertise is required in evaluation evidence then expert can be called
Under s.3 Civil Evidence Act 1972
Expert evidence shall be restrict to ….
Explain what duty an exert has, can this be overridden?
IS courts permission needed to call an expert?
What can expertise be from?
That which is REASONABLY required to RESOLVE the proceedings
Duty of the exert to help the court on matter which in their expertise and this duty overrides any obligation to the person who instructed the expert
Yes, no party May call an expert or put in evidence an expert’s report without the court’s permission
(Although not needed to instruct an expert)
Qualifications and/or experience
How will expert evidence be given?
Will an expert be called to give oral evidence in small claims track or the fast track?
Can another party put written questions to an expert? What are the restrictions on this?
How will the expert’s answers to any question be treated?
In written report
No - unless it is necessary to do so in the interests of justice
Yes, but only ONCE, must be put within 28 days of service of expert’s report and must only be for the purpose of CLARIFICATION
Answers will be treated as PART of their REPORT
Expert’s Duty
- Expert evidence should be the _____ product of the expert _______by the ______ of litigation
- Experts should consider all _______
- Expert should make it clear—
when a question ….
When they are not able to reach a …. - What should an expert do if their view changes after they have produced the report
- At the end of an expert’s report there must be a statement, confirming what?
- Independent / uninfluenced / pressures / litigation
- Material facts
- Falls outside their expertise
Not able to reach a definite opinion — insufficient information - Should communicate change in view to all parties WITHOUT DELAY
- That the expert understands and has complied with their duty to the court
Does an expert report need to state the instructions given to them?
Are instructions to experts privileged?
Where a party has disclosed an expert’s report, who may use the report as evidence at the trial?
Yes should state substance of material instructions
No, but court will not allow disclosure of specific document to permit questioning concerning instructions, unless it considers that there are reasonable grounds to believe the expert’s statement that they have complied with their duty may be incomplete
ANY PARTY
If there is a divergence between two expert reports, what can the court order?
What can an expert do if there are concerned that their instruction/situation impact on their ability to be independent?
That experts are to discuss issues and where possible reach an agreed opinion on those issues
Can ask the court for directions
Form and content of Expert Report
- In _____
- Addressed to ____
- Gives details of the expert’s ______
- Details of _______ relied on
- Set out material ___ and ______
- Sate Which facts are within the expert’s _________
- State who carried out ______ and their _______ + if they were ________
- Where there is a _________ state that range and give ______ reason for expert’s own opinion
- Summary of ______ reached
- State if there are any _______ to the expert’s opinion
- Statement that expert understand their _____ to the court and has _____ with it + aware of PD 35 requirements
- Verified by a ________________
- WRITTING
- The court
- Qualifications
- Literature/ other material relied on
- Facts and instructions
- Own knowledge
- Experiments / qualifications/ supervised
- Range of opinion / reasons
- Conclusions reached
- Qualifications
- Duty / complied
- Statement of truth
If formalities are not complied with = doesn’t impact actual quality of evidence itself but court may feel that it distracts from the quality
What can be done if an expert fails to respond to questions put to them?
Court may make one or both of the following orders:
A. Party may not rely on the evidence of that expert; or
B. Party may not recover fees/expenses of that expert form another party
When a judge has to decide between which expert’s evidence to rely on, what must the judge do?
Give detailed reasoning for why the judge prefer one expert over the other
What can a party do if they fail to disclose an expert’s report?
Late disclosure may not be fatal provided that _______ can be met, but court must still consider CPR _____
CANNOT use it a trial or call expert for oral evidence, unless court gives permission
This amount to a SANCTION so 3.9 relief from sanctions + DENTON applies
So need to apply for permission to use report and fro relief from sanctions
Trial date / 3.9
