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Civil Litigation > Unit 15 - Experts > Flashcards

Unit 15 - Experts Flashcards

1
Q

Does CPR 35 apply to small claims track?

A

No.

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2
Q

Is evidence tendering to provide an expert’s view on the credibility/reliability of a witness generally admissible?

A

No. generally inadmissible.

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3
Q

Must a judge give reasons for preferring the evidence of a witness of fact over than of an expert?

A

Yes.

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4
Q

Expert evidence shall be restricted to that which…

A

…is reasonably required to resolve the proceedings.

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5
Q

Can expert evidence be adduced without court permission?

A

No.

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6
Q

Examples of refusing to adduce expert evidence as it was not necessary to resolve the dispute: (only on syllabus)

A

Asking what the expert would have done in a hypothetical situation;

Give careful thought before adducing expert evidecne in JR claim.

Expert evidence is not to be used to establish standard of honesty for certain market practices;

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7
Q

What is a single joint expert?

A

An expert instructed to prepare a report for the court on behalf of two or more of the parties to the proceedings.

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8
Q

Experts have an overriding duty to…

A

…the court, irrespective of who called the expert.

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9
Q

Must experts make it clear when an issue falls outside of their expertise?

A

Yes.

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10
Q

Must experts state where their conclusions are based on inadequate evidence?

A

Yes.

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11
Q

Must experts be prepared to reconsider their opinion in light of new information/expert evidence?

A

Yes.

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12
Q

When parties apply for permission to adduce expert evidence, they must provide:

A

Estimate of costs;

The field in which the evidence is required;

The issues E will address;

Their name.

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13
Q

For soft tissue injury claims, permission…

A

…May normally be given for one expert medical report.

May not be given unless medical report is a fixed costs medical report.

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14
Q

True or False. CPR 35 only applies where expert evidence is to be adduced from an expert instructed by parties to the immediate proceedings.

A

True. Parties can rely on EE in previous proceedings as hearsay evidence, and court should be slow to interfere with that.

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15
Q

Who has the burden to adduce expert evidence?

A

The party seeking to adduce it - show that it will assist the court.

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16
Q

TRUE or FALSE. Expert evidence must be contained within a recognised body of expertise governed by recognised standards and rules of conduct relevant to the question which the court has to decide.

A

TRUE.

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17
Q

TRUE or FALSE. Expert evidence, to be admissible, must be of such a nature that a person without instruction in the area would not be able to form a sound judgment on the matter without the assistance of an expert witness.

A

TRUE.

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18
Q

What is the three-stage test in British Airways v Spencer for adducing expert evidence?

A

Is it necessary to decide an issue, rather than just helpful?

If not, will it assist the judge in determining the issue?

If yes, is expert evidence on the issue reasonably required to determine the proceedings?

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19
Q

In what form should expert evidence be given?

A

Written report, unless directed otherwise.

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20
Q

TRUE or FALSE. An expert will be ordered to attend claims on the small claims track and fast track.

A

FALSE. They will not be directed to attend unless it is necessary to do so in the interests of justice.

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21
Q

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

A

Once.

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22
Q

How long do parties have to issue questions to expert evidence?

A

28 days of clarfication of the report, unless court gives permission or other party agrees.

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23
Q

What happens if the expert does not provide an answer to a written question?

A

The court may order that the instructing party cannot rely on the evidence, or that the party may not recover the fees and expenses of that expert from any other party.

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24
Q

WHen may the court order a Single Joint Expert?

A

Where two or more parties wish to submit expert evidence on a particualr issue.

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25
Q

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

A

The court may select the expert from a prepared list or direct them to be selected in any manner as the court directs.

26
Q

If a party agrees to a SJO, are they barred from then seeking further expert evidence?

A

No, but it does depend on the circumstances of the case (e.g. what is at stake).

27
Q

What must an expert report contain?

A

Compliance with PD35;

Statement of understanding of duty to the court;

Substance of all material instructions

28
Q

TRUE or FALSE. Only the instructing party can use a disclosed expert’s report as evidence at the trial.

A

FALSE. Any party can.

29
Q

Can the court order experts to discuss the issues in the proceedings?

A

Yes.

30
Q

If a party fails to disclose E’s report, can they use it at trial or call E orally?

A

Only with court permission.

31
Q

What will the court consider in determining whether to permit a single joint expert/separate experts?

A

Is it proportionate re the amount, importance, and complexity?

SJE will be quicker/cheaper;

EE is for liability, causation and quantum;

Is there likely to be a range of expert opinions on this matter;

Has an expert already been instructed by either party;

Questions can prevent the need for multiple experts;

Questions to SJE may not conclusively deal with all issues;

Conference may be needed

32
Q

The purpose of expert discussions is:

A

Identify any agreement;

Identify points of disagreement;

Identify action to resolve disagreements;

33
Q

Can parties attend expert discussions?

A

Only if the court orders so.

34
Q

TRUE or FALSE. Where a party has filed and served an expert report but neither that party nor any other party to the proceedings wishes to rely on the report, the judge may still order that the expert attends court and gives evidence.

A

True

35
Q

TRUE or FALSE. Judges will restrict expert evidence to that which is reasonably required to resolve the proceedings

A

True.

36
Q

TRUE or FALSE. If a winning party instructs an expert without the court’s permission, that party is at risk of not recovering the costs relating to the expert if the court decides that expert was not necessary.

A

True.

37
Q

TRUE or FALSE. In claims with multiple parties, where one of the parties has disclosed an expert’s report but subsequently withdraws from the case, the remaining parties may not use that expert’s report as evidence at the trial.

A

False. They can.

38
Q

TRUE or FALSE. Only one expert will normally be allowed to give evidence on an issue in the fast track or small claims track

A

True.

39
Q

What is the limit on recoverable fees for an expert report?

A

£750

40
Q

Where a court directs that a single joint expert be used, can both parties give the expert instructions?

A

Yes.

41
Q

Where two parties give instructions to SJE, must they send a copy of those instructions to the other instructing party?

A

Yes.

42
Q

Must expert reports contain lists of all the expert’s publications?

A

No.

43
Q

Are expert reports addressed to the instructing parties?

A

No, to the court.

44
Q

TRUE or FALSE. To assist the court, a party may provide an estimate of the costs of instructing the expert.

A

No - they MUST do so.

45
Q

Must parties provide the name of their experts?

A

Only if practicable

46
Q

TRUE or FALSE. Parties must identify the field in which the expert evidence is required

A

TRUE.

47
Q

TRUE or FALSE. Parties must identify the issues which the expert evidence will address.

A

TRUE.

48
Q

Must parties complete N244 forms to adduce expert evidence?

A

No - case management directions or an application can be used.

49
Q

TRUe or FALSE. Written questions to an expert must be put within 21 days of service of the report.

A

FALSE - 28 days.

50
Q

TRUE or FALSE. Answers to written questions form part of the expert report.

A

TRUE.

51
Q

TRUE or false. Questions to experts can be for any purpose.

A

FALSE. Only for clarification.

52
Q

TRUE or FALSE. A single joint expert will not be required to answer written questions.

A

FALSE. Written questions can be put to them.

53
Q

TRUE or FALSE. If an expert does not answer written questions, the court must order that the evidence canot be relied upon.

A

FALSE. The court may, but it is not a mandatory order.

54
Q

Where there are two separate experts for the parties, and they are directed to have a discussion, but one is ignoring the other, what can the expert do?

A

Seek directions from court to compel the other to comply.

He can do so by letter but must send a cop to his instructing solicitor 7 days before filing, and to all other parties at least 4 days before filing.

55
Q

TRUE or FALSE. Experts owe a duty to exercise reasonable skill and care to those instructing them.

A

TRUE.

56
Q

TRUE or FALSE. An expert can be an employee of one of the parties.

A

TRUE, but not advisable.

Court has to be satisfied that the person has relevant expertise and is aware of the primacy of their duty to the court.

57
Q

TRUE or FALSE. An expert should not assume the role of an advocate.

A

TRUE.

58
Q

TRUE or FALSE. Instructions from a solicitor to an expert witness are privileged from inspection by other parties.

A

FALSE. They are not privileged once the report is served.

59
Q

TRUE or FALSE. If an expert prepares a draft report but is later instructed to prepare a Part 35 compliant report, the draft report becomes disclosable and may be inspected by the opponent.

A

FALSE. As it was prepared for litigation in contemplation, it will attract litigation privilege, as will earlier drafts of his expert report.

60
Q

TRUE or FALSE Discussions between experts should only take place if they would be useful for the purposes of settling the case.

A

FALSE. Discussions ordered if useful, not for clarification purpose.

61
Q

TRUE or FALSE. If the court orders that evidence is given concurrently the Judge will perform the function of asking questions of the experts without Counsel’s involvement

A

FALSE. Legal reps can ask questions within categories set out in PD but process will be closely controlled by Judge who will ask questions first.

Civil Litigation (19 decks)

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