Topic 17- Expert Evidence

Question 1

What are the three questions a court must ask when adducing expert evidence?

Answer 1

Is the evidence admissible?

Does it constitute expert evidence under CPR 35?

Is it reasonably required to resolve the proceedings?

Question 2

What are the four questions governing the admissibility of expert evidence?

Answer 2

Will it assist the court in its task?

Does the expert have the necessary knowledge and expertise?

Is the expert impartial in their presentation and assessment?

Is there a reliable body of knowledge or experience underpinning the expert’s evidence?

Question 3

What are the restrictions put on expert evidence?

Answer 3

Expert evidence shall be restricted to that which is reasonably required to resolve proceedings

Question 4

Can a party put in expert evidence without court permission?

Answer 4

No, the party must have court permission

Question 5

What is a single joint expert?

Answer 5

An expert who has been instructed to prepare a report for the court on behalf of two or more parties

Question 6

What is the overriding duty of experts?

Answer 6

It is the duty of experts to help the court on matters within their expertise

They owe a duty to the court, not to the parties

Question 7

When a party applies for permission to use expert evidence, what must they identify?

Answer 7

The estimated costs of the expert evidence

The field in which the expert is required

The name of the expert

Question 8

Where a claim has been allocated to the small or fast claims track, how many experts are usually required for each issue?

Answer 8

Usually from only one expert on an issue

Question 9

How can a party rely on expert evidence adduced in previous proceedings?

Answer 9

They can use it as hearsay evidence, without court permission

Question 10

How does a party adduce expert evidence?

Answer 10

They must apply for court permission

The burden lies on the parties to persuade the court that it will assist the court

Question 11

What is the three-stage test in determining whether expert evidence is permitted?

Answer 11

Is expert evidence necessary to decide an issue?

Will it assist the judge in determining as issue?

Is it reasonably required?

Question 12

Can a party change expert witnesses?

Answer 12

The court will have discretion to permit a party to change experts

This discretion should be exercised with regard to all the circumstances of the case and in accordance with the overriding objective

The party must apply for court permission

Question 13

What is the general requirement of how expert evidence is given?

Answer 13

It should be given in a written report unless directed

If a claim is on the small or fast track, the court will not direct an expert to attend unless necessary in the interests of justice

Question 14

How does a party put written questions about an expert report?

Answer 14

No need for permission (unless it is for a purpose other than clarification)

Must be put within 28 days of service of the report

Question 15

What happens if a party has put a written question to an expert, but the expert does not answer?

Answer 15

The court may either prevent the other party from relying on the evidence
OR
The party may not recover fees and expenses of the expert

Question 16

How does a party ask an expert a question that is more than clarification?

Answer 16

They must apply for court permission
OR
The other party agrees

Question 17

What will the court usually do where two or more parties wish to submit expert evidence on a particular issue?

Answer 17

The court may direct that the evidence is to be given by a single joint expert

Question 18

What happens if two parties cannot agree who should be a single joint expert?

Answer 18

The court may select the expert themselves

Question 19

How do parties pay the costs of a single joint expert?

Answer 19

The parties will be jointly and severally liable for the fees

Question 20

If a party has information that is not reasonably available to another party, what may the court do?

Answer 20

The court may direct the party to prepare and file a document recording the information for the other party

Question 21

Are the instructions to an expert privileged?

Answer 21

No, but the court will not disclose the instructions, unless satisfied there are reasonable grounds to consider the instructions are inaccurate or incomplete

Question 22

When will the court disclose an expert’s instructions?

Answer 22

Where there are reasonable grounds to consider the instructions are inaccurate or incomplete

Question 23

Where a party has disclosed an expert’s report, can that report be used by another party in evidence?

Answer 23

Yes, when disclosed, any party may use that report as evidence in trial

Question 24

If two experts are in a disagreement over an issue, what may the court do?

Answer 24

The court can direct a discussion between the experts for the purpose of reaching an agreed opinion on the issues

This opinion will not be binding on the parties

Question 25

If a party fails to disclose an expert’s report, what will the court do?

Answer 25

The court may prevent the party from using the report at trial, or calling the expert to give evidence

Question 26

What must an expert’s report include?

Answer 26

Expert’s qualifications

Any material relied upon

A statement setting out the substance of the facts

Summarise the range of opinions and the reasoning

Summary of the conclusions reached

Question 27

What will the court consider when deciding whether to order evidence from a single joint expert?

Answer 27

The amount in dispute

Importance to the parties

Complexity of the issue

Question 28

If a witness states an opinion which they are not qualified to give, will this be admissible?

Answer 28

Yes, as the statement was made as a way of conveying relevant facts personally perceived by the witness

Question 29

What are the only questions a party can ask an expert without court permission?

Answer 29

Questions of clarification

Question 30

Can an expert ask the court for directions?

Answer 30

Yes, they may file written requests for directions

The court will then provide copies of the requests to the instructing party 7 days before filing request

4 days to all other parties

Question 31

Does a Judge need to accept an expert opinion?

Answer 31

No, but they will weight it as a factor along with other evidence in the case