Revision Guide - Ch. 13: Expert Evidence Flashcards
Who may qualify as an expert?
Anyone with knowledge or experience in the particular field may qualify as an expert in that field.
Formal degree is not necessary
What evidence can experts give?
Experts can give opinion evidence derived from special knowledge, skill, or training that is not within the ordinary experience of the judge
What is needed from the expert when giving opinion evidence?
The expert must be reasonable certain as to their opinion, inference, or conclusion.
The expert must be able to demonstrate the basis of their opinion + conclusions
What duty do experts owe the court?
A duty to exercise independence, integrity, and impartiality.
This overrides any duty owed to the person who instructed them or who is paying their fee.
How is expert evidence generally to be given?
As a general rule, expert evidence is to be given in a written report addressed to the court + they do not attend trial
When can oral expert evidence be given?
Upon showing:
i. expert oral evidence is likely to have an impact on the outcome,
ii. it will assist the judge,
iii. there is a risk of injustice if the expert evidence is not tested, and
iv. the costs of the experts attending are not disproportionate
When should parties agree a single joint expert?
Parties should try to agree a single joint expert unless there is good reason not to.
What will be done if the parties cannot agree a single joint expert?
The judge will choose from a list provided by the parties.
How is the fee shared if a single joint expert is instructed?
If a single joint expert is instructed, the parties share the fee until conclusion + allocation of costs to the losing party
Who does a single joint expert send their report to?
Sends their report to both parties
What is an agreed expert?
An agreed expert is nominated by the claimant in a personal injury case + the claimant will obtain a report from the agreed expert for potential agreement.
The defendant retains the right to instruct their own expert if they are unhappy with the report.
When may the court allow parties to instruct their own experts?
If:
i. the issues are complex or of high value,
ii. the parties already have their own experts from the pre-action phase, and it is more cost-effective for both to continue,
iii. there are different schools of thought in relation to a particular issue relevant to the claim, or
iv. the issue on which the experts are focusing is significant to the outcome of the action, such as issues regarding liability or quantum of damages
When may parties send questions to an expert?
Within 28 days after receiving the expert’s report.
What may be done if the parties each have their own expert?
The court may order a without prejudice meeting of the experts to identify the issues on which they agree and disagree.
The meeting may take place at any time + it may take place over the telephone.
Legal representatives of the parties should not be present.
