13. Expert Evidence

Question 1

What are the two requirements for an expert to give evidence?

Answer 1

1. They must be qualified to give the opinion
2. Their expert evidence must be reasonably required to resolve proceedings

Question 2

If expert evidence is allowed, what are the four conditions it is still subject to?

Answer 2

1. Opinion must depend on special knowledge, skill, or training that is not within the ordinary experience of a judge
2. Expert is regarded as a true expert
3. Evidence must be given to a reasonable degree of certainty
4. Expert must demonstrate the basis of their opinion and conclusions

Question 3

What is the duty owed by an expert?

Answer 3

To exercise independence, integrity, and impartiality, and this overrides their obligation to the person who instructed/paid them

Question 4

Is the default position that experts will attend court to give their evidence?

Answer 4

No, the default is a written report

Question 5

If a party wishes to have an expert testify in court rather than the default of preparing a written report, what four conditions must they satisfy?

Answer 5

1. Expert oral evidence likely to have an impact on the outcome
2. It will assist the judge
3. Risk of injustice if expert evidence is not tested, and
4. Cost of the expert attending is not disproportionate

Question 6

What is the difference between an agreed expert in a personal injury case, and a single joint expert?

Answer 6

An agreed expert is one chosen by a claimant in a personal injury case. The defendant does not have to agree to jointly instruct an agreed expect and the defendant retains the right to instruct their own.

A single joint expert is one where the court has imposed the obligation that parties share an expert, share the fees whilst the matter is ongoing, and then the losing party will assume responsibility for paying the expert after the trial.

Question 7

In what four instances may the court allow parties to have their own expert?

Answer 7

1. Complex issues or high value case
2. Parties already have their own expert from pre-action phase and most cost-effective to retain
3. Number of different schools of thought concerning the issue requiring expert opinion
4. Issue the experts are focusing on has huge significance to the outcome

Question 8

Is an expert’s report privileged?

Answer 8

Until disclosed

Question 9

Does an expert’s report have to be disclosed?

Answer 9

Only if the party intends to rely on it

Question 10

What is the time limit from the expert sending the report that the parties can ask questions of the expert?

Answer 10

28 days