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Summary Civil Litigation - Expert Evidence Notes
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Civil Litigation Syllabus Notes on Expert Evidence, used in conjunction with The White Book 2020 from BPTC 2019/2020.
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SYLLABUS 18- EXPERT EVIDENCECommentary Intro:
35.0.1 The rules here govern the provision of opinion evidence by expert witnesses,
except where a claim is allocated to the small claims track. Expert evidence is an exception
to the general rule that only evidence of fact may be adduced (s3 CEA 1972: where person
called as a W, their opinion which includes an issue they are qualified to give EE on shall be
admissible). An expert witness may give evidence on e.g. technical, scientific matters, or
specialist practice or procedure. BUT: not expert’s function to give opinion on issues of law
or fact which the judge/jury has to decide.
35.0.2 Expert availability
Attempts to introduce expert evidence late in the timetable or the unavailability of the
parties’ chosen experts for the trial date, will only rarely be sufficient to vary CM directions
or trial dates or grant an adjournment.
35.0.3 Judicial assessment of expert evidence
A judge is entitled to prefer the evidence of a witness of fact to that of an expert
witness. If Judge does, reasons justifying the preference should be given.
Judge must give sufficient reasons for preferring the evidence of one expert to another
expert and failure to do so may be valid grounds for an appeal or remit for re-trial.
Where EE is relevant to liability (e.g. the way an accident could have happened) the
judge must consider that evidence at the time when they are reaching their conclusion
on the credibility of the witness.
Where an expert witness completely disregards their duty to the court by failing to
follow the court’s directions, the court may rule that the party may not rely on that
expert’s evidence, the effect of which may mean that the party loses the entire action.
35.0.4: Ultimate Issue
Experts may provide evidence on the “ultimate issue” in proceedings: the matter to be
decided by the court (s3(3) CEA 1972). BUT: they may not determine such issues; it is for the
court to on BOP. Trial is by judge not expert. A court is not bound by conclusions reached by
another person/body on issues. Rather, EE could provide guidelines within which the facts
fall to be decided by a Judge.
CPR: Part 35
35.1 Duty to restrict expert evidence
Expert evidence shall be restricted to that which is reasonably required to resolve the
proceedings.
Commentary @ 35.1.1 Effect of 35.1: P’s and the court should seek to restrict the
inappropriate use of EE (rationale to reduce inappropriate use to bolster claims).
Commentary @ 35.1.2 Expert Evidence held not be necessary: E.g. hypothetical
situations: opinion evidence as to what an expert would have done is not permissible. E.g.
Financial and banking: permission to adduce an expert’s report which covered same ground
as a report already admitted was refused. Another case where permission was refused as
evidence to the characteristics of financial markets, financial products, the suitability of
financial products or adequacy of information provided by a bank could be given by
witnesses of fact.
, SYLLABUS 18- EXPERT EVIDENCE
35.2 Interpretation and definitions: An “expert” = person who has been instructed to
give or prepare expert evidence for the purpose of proceedings. A “Single joint expert” =
expert instructed to prepare a report for the court on behalf of two or more of the parties
(incl. C).
35.3 Experts—overriding duty to the court: duty of experts to help 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.
Commentary @ 35.3.3 Duties and responsibilities of experts: has been considered:
1. EE presented to the court should be the independent product of the expert
uninfluenced as to the form or content by the exigencies of litigation;
2. An expert should provide independent assistance to the court by way of objective
unbiased opinion in relation to matters within their expertise. An expert witness in the
HC should never assume the role of an advocate.
3. An expert should state the facts or assumptions on which their opinion is based. They
should not omit to consider material facts which could detract from their concluded
opinion.
4. They should make it clear when a particular question/issue falls outside their expertise.
5. If an expert’s opinion is not properly researched b/c they consider that insufficient data
are available, then this must be stated with an indication that the opinion is no more
than a provisional one. In cases where an expert witness who has prepared a report
could not assert that the report contained the truth, the whole truth and nothing but
the truth without some qualification that qualification should be stated in the report.
6. If after exchange of reports, an expert changes their view on the material, such change
of view should be communicated (through legal representative) to the other side
without delay and when appropriate to the court.
7. Where EE refers to photographs, plans, calculations, analyses, measurements survey
reports or other similar documents, these must be provided to the opposite party at the
same time as the exchange of reports.
It is to the court, that the overriding duty is owed irrespective of who instructed the expert.
Duty to court to give opinions upon the whole of the relevant subject matter and not to
select only the evidence which supports the case of the instructing party. They are to assist
the court on technical matters and ought not to permit any personal disagreements to lead
them to act contrary to their duty to the court. The other duties and responsibilities above
remain to be fulfilled (PD 35, para 2.1 summarises these). Failure to have regard to their
duties can undermine the integrity of the judicial process and render the expert liable to
sanctions.
ALSO Expert witnesses should make it clear when they receive new info or have
considered the opinion of another expert, they should be prepared to reconsider their own
opinion and even, if appropriate change their mind, and should do so at the earliest
opportunity.
While experts are not to act as advocates for the party instructing them- this is often
breached to the detriment of the instructing party. So, list of points to be considered:
(1) Experts of like discipline should have access to the same material
(2) It is not for an independent expert to indicate which version of the facts they prefer
(3) Experts should not take a partisan stance in relation to interim applications
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