Expert Evidence

Question 1

Does expert evidence come under the general rules of evidence?

Answer 1

No, expert evidence constitutes an exception to the general rule that only evidence of fact is to be adduced.

Question 2

Can an expert witness give their opinion on issues of law or fact while assisting the court on matters within their expertise?

Answer 2

No, it is not the function of the expert to give their opinion on issues of law or fact which the judge or jury has to decide

Question 3

If an expert witness is unavailable to attend trial on the fixed date, will the court vary the case management directions?

Answer 3

Only very rarely will the court vary case management directions because an expert is unavailable. Where an expert is unavailable to attend trial, a different expert should be instructed.

Question 4

Can experts give evidence on the ‘ultimate issues’ at trial?

Answer 4

Yes, the expert can give evidence on the main issues at trial, however, they are not to determine those issues. It is for the court to determine, on the balance of probabilities, such issues based on all the evidence before it.

Question 5

Is there a restriction on the use of expert evidence?

Answer 5

Yes, expert evidence is restricted to that which is reasonably required to resolve proceedings.

Parties and the court alike should seek to restric the excessive or inappropriate use of expert evidence.

Question 6

What is the duty of an expert?

Answer 6

It is the duty of the expert to assist the court on matters within their expertise.

This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Question 7

Is the court’s permission needed to adduce expert evidence?

Answer 7

Yes, expert evidence may only be adduced with the court’s permission.

Question 8

How may the court control expert evidence?

Answer 8

By giving directions as to the issues on which it requires the evidence

Giving directions as to the nature of the evidence is requires

Giving directions as to the way in which the evidence is to be placed before the court

Question 9

Give three examples of when the court has refused parties’ permission to adduce expert evidence.

Answer 9

When the expert is to give their opinion of what they would have done in a hypothetical situation

Cases of judicial review

Cases in the small claims track

Question 10

1. Do all of the rules relating to expert evidence apply to cases allocated to the small claims track?
2. Which rules DO apply to expert evidence for cases allocated to the small claims track?

Answer 10

1. No
2. • duty to restrict expert evidence
   • experts overriding duty to the court
   • court’s power to direct that evidence is to be given by a single joint expert
   • instructions to a single joint expert

Question 11

Can an expert give evidence at a case allocated to the small claims track?

Answer 11

No expert may give evidence, whether written or oral, at a hearing without the permission of the court

Question 12

What is the reasoning behind disapplying many of the rules relating to expert evidence to cases allocated to the small claims track?

Answer 12

The effect of excluding many of the rules is that the court can adopt a flexible approach to the use of such experts that are necessary. An expert’s report can be relatively informal e.g. they need not cite the expert’s qualifications in detail.

This flexibility allows the parties to use “local” experts who although unable to produce polished reports can still produce straightforward advice to assist the court.

Question 13

What is the expert’s duty if they are asked a question or are exposed to an issue which falls outside their expertise?

Answer 13

They must make it clear that the particular question or issue falls outside their expertise.

Question 14

If an expert’s opinion is not properly researched because they consider that insufficient data are available, can their opinion still be used in proceedings?

Answer 14

yes, but they must state that there was insufficient data to properly research their opinion and indicate that the opinion is no more than a provisional one

Question 15

What must the expert do if they change their view on the material after having exchanged their report?

Answer 15

They should communicate this (through a legal representative) to the other side without delay and when appropriate to the court.

Question 16

What must be done if an expert report refers to photographs, plans, calculations, measurements, or survey reports?

Answer 16

The photos/plans etc must be provided to the opposite party at the same time as the exchange of reports.

Question 17

What must a party provide to the court when applying for permission to instruct an expert witness?

Answer 17

They must provide an estimate of the costs of the proposed expert

Identify the field in which evidence is required

Identify the issues which the expert evidence will address

Where practicable, the name of the proposed expert.

Question 18

If permission is granted for the use of an expert witness, what will that permission cover?

Answer 18

If permission is granted, it shall be in relation only to the expert named or the field identified. The order granting permission may specify the issues which the expert evidence should address.

Question 19

What is the normal result of expert evidence being permitted in a case in the small claims track or the fast track

Answer 19

If permission is given, it will normally only be given for evidence from only one expert on a particular issue.

Question 20

Will a party always be able to recover their fees paid for the use of expert evidence if they succeed at trial?

Answer 20

The court may limit the amount of a party’s expert fees and expenses that they may recover from any other party.

Question 21

When can permission to call an expert witness be given?

Answer 21

In response to an application to the court by a party

In the court’s own case management directions

Question 22

1. Can a party rely on expert evidence adduced in previous proceedings?
2. Is permission needed to do this?

Answer 22

1. Yes, they may seek to do so as hearsay evidence
2. Permission is not required for this, permission is only needed when an expert is to be instructed by the parties to the immediate proceedings. However the court retains the discretion to exclude it, but the court should be slow to do so.

Question 23

How is expert evidence to be given?

Answer 23

Expert evidence is to be given in a written report unless the court directs otherwise.

Question 24

If a claim is on the small claims track or the fast track, will the court ever direct an expert to attend a hearing?

Answer 24

Not unless it is necessary in the interests of justice to do so.

Question 25

When can a party ask questions about the expert’s report and how is this done?

Answer 25

A party may put written questions about an expert’s report to an expert instructed by another party or a single joint expert.

Question 26

How many times can written questions be put to an expert?

Answer 26

Only once

Question 27

When must written questions be put to the expert?

Answer 27

Within 28 days of service of the expert’s report

Question 28

What can a question put to an expert cover?

Answer 28

The questions must be for the purpose of clarification of the report unless the court gives permission or the other party agrees.

Question 29

How will the expert’s answers to questions be treated?

Answer 29

The expert’s answers to questions will be treated as part of the report.

Question 30

What can happen if a party puts a question to an expert and the expert does not answer the question?

Answer 30

Where a party puts a question to an expert instructed by another party and the expert does not answer the question…

The court may order that the party who instructed the expert may not rely on the evidence of that expert

AND/OR

That the party may not recover the fees and expenses of the expert from the other party.

Notes:

• the court may order neither, one or both of those things
• this only applies to experts instructed by the other party, not single joint experts.

Question 31

What might the court direct if two or more parties wish to submit expert evidence on a particular issue?

Answer 31

They may direct that the evidence on that issue is to be given by a single joint expert.

Question 32

Who determines who should be the single joint expert?

Answer 32

The parties can agree as to who should be the single joint expert.

If the parties cannot agree, the court may select the expert from a list prepared by the relevant parties, or direct that the expert be selected in such other manner as the court may direct.

Question 33

If a single joint expert is instructed, and one party is unhappy with the report produced, can that party instruct another expert?

Answer 33

If having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he may wish to challenge, then the court has the discretion to allow the party to instruct their own expert witness.

Question 34

Where must an expert’s report be addressed to

Answer 34

It should be addressed to the court (not the instructing party(s))

Question 35

List three things that must be included in an expert’s report.

Answer 35

details of any material relied on in making the report

make clear which facts stated are within the expert’s own knowledge

say who carried out an examination/ measurement/ test/ experiment which the expert has used for the report, give the qualifications of that person and say whether it was carried out under the expert’s supervision.

Question 36

Where there are a range of opinions on the matters dealt with in the report, what should the expert do?

Answer 36

The expert must summarise the range of opinions and give reasons for the expert’s own opinion.

Question 37

What must the expert state in their report in relation to the CPR and PD’s?

Answer 37

The expert report must contain a statement that the expert understands their duty to the court (as contained within Part 35: expert evidence) and that he has complied with that duty.

Question 38

Does the party who instructed the expert have to disclose the report to other parties?

Answer 38

Yes (obviously!! pls remember this)

Question 39

Who may use the expert’s report as evidence at trial?

Answer 39

Any party, once the report has been disclosed.

Question 40

Why might the court direct a discussion between experts?

Answer 40

The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to identify and discuss the expert issues in the proceedings and where possible, reach an agreed opinion on those issues.

Question 41

What might the court direct the experts to do following a discussion?

Answer 41

the court may direct the experts to prepare a statement for the court setting out those issues on which they agree and those which they disagree, with a summary of their reasons for disagreeing.

Question 42

Can the content of the discussion between experts be referred to at trial?

Answer 42

Not unless the parties agree

Question 43

If the experts reach an agreement during their discussions, does the agreement bind the parties?

Answer 43

Not unless the parties expressly agree to be bound by the agreement.

Question 44

What is the consequence if a party fails to disclose an experts report?

Answer 44

That party may not use the report at trial or call the expert to give evidence orally unless the court gives permission.

Question 45

How can an expert ask the court for directions?

Answer 45

Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.

Question 46

What else must the expert do when filing written requests for directions to the court?

Answer 46

They must provide copies of the proposed request on the party who instructed them at least 7 days before they file the request.

They must provide copies of the proposed request to all other parties at least 4 days before they file the request.

The court, when it gives directions, may also direct that a party be served with a copy of the directions.