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Notes on Expert Evidence
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Experts 1General rule:
1. Lay witnesses are not allowed to express opinions, they are generally confined to dealing with the facts,
• This rule is subject to an exception.
2. Technical issues require expert evidence.
Exception: Admissibility of a lay opinion (“Perception Technical issues & experts
evidence”)
Evidential principle:
à Non-experts can provide their opinion on Where something is outside the experience of the
evidence. tribunal of fact, expert evidence is required.
• The court cannot make a decision on the point
s.3(2) Civil Evidence Act 1972 without the help of an expert.
Lay witnesses are allowed to express opinions as a
way of conveying relevant facts personally perceived If the issue is outside the experience of the ordinary
by them. tribunal of fact, expert evidence is admissible &
necessary.
Example: • Expert evidence will be inadmissible &
Bombardier can call to say D appeared to be drunk. unnecessary if the issue is within the
experience of the ordinary tribunal of fact.
Requirements for the admission of expert evidence
Expert There must be a Expert must be Expert must be Court’s
evidence must recognised area suitably independent & permission &
be reasonably of expertise qualified impartial compliance with
required court directions
Expert evidence must be Expert must be suitably qualified
reasonably required
à What amounts to ‘suitable’ depends on the nature of the area of
à There must be a matter which is expertise.
outside the ordinary experience of • Typically with experience and/or qualifications
the tribunal of fact • An expert cannot give expert evidence outside their area of
• Evidence must be expertise
"necessary", and
"reasonably required"
(r.35.1) Recognised area of expertise
Includes: • à There must be a reliable or recognised body of expertise governed
• medical evidence by accepted rules and principles
• valuation of property
• company shares Recognised area of expertise:
• the quality of goods sold • Health and safety
• the provenance of a work of art
• employment consultants in PI Not recognised area of expertise
claims • Emerging areas of science (eg. DNA)
•
What is permissible:
• Engineer explaining the effect of sitting on a harbour
• A road accident reconstruction experts’ genuine scientific analysis of evidence & measurements
What is not permissible: Experts may provide evidence on the ultimate issue, but cannot determine the issues.
• Experts on the interpretation of commercial contracts (question of law for the judge)
• Experts on the credibility of witnesses (even children)
• Road accident reconstruction experts’ opinion on basic facts (i.e. sounding horn, being able to see another
car, saying one car drove too fast etc)
, Requirements for the admission of expert evidence 2
Expert There must be a Expert must be Expert must be Court’s
evidence must recognised area suitably independent & permission &
be reasonably of expertise qualified impartial compliance with
required court directions
Look at page 1
Permission & compliance with court directions Expert must be independent
r.35.4(1): The party seeking to rely on the expert’s Kenny v Cordia (Services) LLP changed this from
evidence must comply with the relevant rules of court being regarded as desirable and helpful on the
under Pt 35, including obtaining a direction weight of the expert evidence to a requirement
granting permission to rely on the expert’s evidence for admissibility.
at trial.
Consequences of failure to comply (r.35.13)
à Failure to comply with expert directions may result Worked example:
in the defaulting party being barred from calling
expert evidence at trial. C called expert (Fred) to give expert evidence.
• Defaulting party will not be permitted to use Would it matter if Fred asked his assistant to
the report/call the expert as a witness at trial conduct the tests, she then told him her results,
unless the court gives permission and he noted it for the purpose of forming his view
• ‘Gives permission’ also means obtaining on the issue?
relief from sanctions under r.3.9, means
defaulting party has to meet the requirements à Yes. This part of Fred’s evidence will be
for relief from sanctions laid down in Denton. hearsay, but still admissible by s.1 CEA 1995.
Pre-action stage After Proceedings Begin
Rules on Experts After Proceedings Begin
à Directions (r.35.4)
1. No party may call an expert/put in evidence an expert’s report without the court’s permission
2. If permission is granted, it shall be in relation only to the expert named or the field in which expert
evidence is required.
à Restricting the cost of expert evidence
• Expert evidence shall be restricted to that which is reasonably required (necessary) to resolve the
proceedings. (r.35.1)
o Parties & court should restrict excessive/inappropriate use of expert evidence
• When making CM decisions, the court has to give regard to any available costs budget of the parties &
take into account the costs involved in each procedural step (including costs for expert evidence)
(r.3.17(1))
• When parties apply for permission, they must provide an estimate of the costs of the proposed
expert evidence (r.35.4)
• The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any
other party. (r.35.4)
NB: Where a claim has been allocated to the small claims track or fast track, if permission is given for expert
evidence, it will normally be given for evidence from only one expert (i.e. single joint expert) on a particular issue.
(r.35.4(3A))
• Pt 35 is intended to limit the use of oral expert evidence to that which is reasonably required. (PD 35,
para 1)
o Where possible, matters requiring expert evidence should be dealt with by only one expert.
à Fixed cost report (r.35.4(3B & 3C))
• In whiplash soft tissue injury PI fast track claims, the orthopaedic report must be a fixed cost report
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