Unit 15 Experts

Question 1

What is expert evidence restricted to?

Answer 1

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

Question 2

What is the duty of an expert witness?

Answer 2

Overriding duty to the court.

1. It is the duty of experts to help the court on matters within their expertise.
2. This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Question 3

May a party call an expert witness or put an experts report into evidence without permission of the court?

Answer 3

No.

Question 4

What must a party do in asking permission of the court for an expert witness?

Answer 4

2. When parties apply for permission, they must provide an estimate of the costs of the proposed expert evidence and identify –
   a. the field in which expert evidence is required and the issues which the expert evidence will address; and
   b. where practicable, the name of the proposed expert.
3. If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.

Question 5

What are the limitations of experts in soft tissue injury PI claims?

Answer 5

In a soft tissue injury claim, permission—

a. may normally only be given for one expert medical report;
b. may not be given initially unless the medical report is a fixed cost medical report. Where the claimant seeks permission to obtain a further medical report, if the report is from a medical expert in any of the following disciplines—
i. Consultant Orthopaedic Surgeon;
ii. Consultant in Accident and Emergency Medicine;
iii. General Practitioner registered with the General Medical Council; or
iv. Physiotherapist registered with the Health and Care Professions Council, the report must be a fixed cost medical report.

Question 6

Is expert evidence generally written or oral?

Answer 6

Written. Expert evidence is to be given in a written report unless the court directs otherwise.
If a claim is on the small claims track or the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

Question 7

Can a party ask questions of an expert report?

Answer 7

Yes, once. Written questions under paragraph (1) –

a) may be put once only;
b) must be put within 28 days of service of the expert’s report; and
c) must be for the purpose only of clarification of the report,

Question 8

Are the answers given by the expert treated as part of the report?

Answer 8

Yes

Question 9

What happens if an expert does not answer the questions of the opposing party?

Answer 9

the court may make one or both of the following orders in relation to the party who instructed the expert –

i. that the party may not rely on the evidence of that expert; or
ii. that the party may not recover the fees and expenses of that expert from any other party.

Question 10

What if the parties cannot agree on who the expert should be?

Answer 10

Where the parties who wish to submit the evidence (‘the relevant parties’) cannot agree who should be the single joint expert, the court may –

a. select the expert from a list prepared or identified by the relevant parties; or
b. direct that the expert be selected in such other manner as the court may direct.

Question 11

What must an experts report contain?

Answer 11

1. give details of the expert’s qualifications;
2. give details of any literature or other material which has been relied on in making the report;
3. contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
4. make clear which of the facts stated in the report are within the expert’s own knowledge;
5. say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;
6. where there is a range of opinion on the matters dealt with in the report –
   a) summarise the range of opinions; and
   b) give reasons for the expert’s own opinion;
7. contain a summary of the conclusions reached;
8. if the expert is not able to give an opinion without qualification, state the qualification; and
9. contain a statement that the expert –
   a) understands their duty to the court, and has complied with that duty; and
   b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.
   It must be verified by a statement of truth.

Question 12

Is the expert report limited to evidence of the party who entered it?

Answer 12

No. Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.

Question 13

What may happen following a court ordered discussion between experts?

Answer 13

1. The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which –
   a) they agree; and
   b) they disagree, with a summary of their reasons for disagreeing.
2. The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
3. Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

Question 14

What is the consequence of not filing an expert report?

Answer 14

A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

Question 15

What are the general requirements of expert evidence?

Answer 15

2. 1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
3. 2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.
4. 3 Experts should consider all material facts, including those which might detract from their opinions.
5. 4 Experts should make it clear –
   a) when a question or issue falls outside their expertise; and
   b) when they are not able to reach a definite opinion, for example because they have insufficient information.
6. 5 If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.

Question 16

What is the statement of truth for an expert report?

Answer 16

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Question 17

What will the court consider in ordering a single joint expert?

Answer 17

a. It is proportionate to have separate experts for each party on a particular issue with reference to –
i. the amount in dispute;
ii. the importance to the parties; and
iii. the complexity of the issue;
b. the instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts;
c. expert evidence is to be given on the issue of liability, causation or quantum;
d. the expert evidence falls within a substantially established area of knowledge which is unlikely to be in dispute or there is likely to be a range of expert opinion;
e. a party has already instructed an expert on the issue in question and whether or not that was done in compliance with any practice direction or relevant pre-action protocol;
f. questions put in accordance with rule 35.6 are likely to remove the need for the other party to instruct an expert if one party has already instructed an expert;
g. questions put to a single joint expert may not conclusively deal with all issues that may require testing prior to trial;
h. a conference may be required with the legal representatives, experts and other witnesses which may make instruction of a single joint expert impractical; and
i. a claim to privilege makes the instruction of any expert as a single joint expert inappropriate.

Question 18

Examples of when expert evidence was held not to be necessary (read)

Answer 18

• Hypothetical situations Opinion evidence as to what an expert would have done in a hypothetical situation is not permissible.
• Small claims In small claims, expert evidence is unnecessary in the ordinary case in respect of second-hand car valuations because published and reputable valuation guides is sufficient.
• Financial and banking
o In a claim for misrepresentation and negligence in relation to investment advice, permission to adduce an expert’s report on portfolio analysis that covered the same ground as a report on private banking already admitted, or by a report on derivatives written by a lawyer was refused as the interpretation of commercial contracts was a question of law for the trial judge.
o Permission to adduce expert evidence was refused as evidence as 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.
o While expert evidence as to market practice was permitted, it was not to be adduced in order to establish the standard for honesty or whether the defendants had met that standard; such matters were questions of law for the court to determine.
• Application of Pt 35 to judicial review
o Pt 35 applies to judicial review claims as it does to other civil proceedings. That Tribunals permitted into evidence expert reports without permission or disclosure to the other party did not mean courts should adopt the same approach. Claimants have been warned to give careful thought before seeking to adduce expert evidence in a claim for judicial review, observing
o “… it follows from the very nature of a claim for judicial review that expert evidence is rarely reasonably required in order to resolve such a claim… While there will be some occasions when expert evidence is needed on some technical issue, the views of experts on whether or not a decision is rational or otherwise lawful in public law terms will not be admissible.”

Question 19

When may the court’s permission be given from an expert witness?

Answer 19

Permission to call an expert to testify or to put in evidence an expert’s report may be given in the court’s own case management directions or in response to an application to the court by a party; the court will prompt the parties to consider their intentions regarding the use of expert evidence at an early stage.

Question 20

Can expert evidence be included as part of a witness statement instead of seeking the court’s permission?

Answer 20

No. The requirement to obtain the court’s permission to adduce expert evidence cannot be circumvented by seeking to adduce expert evidence within or as an annex to a witness statement

Question 21

Does a party need the court’s permission to rely on expert evidence that was adduced in previous proceedings?

Answer 21

No, they may introduce it as hearsay evidence. CPR Pt 35 is not a comprehensive, exclusive code. It only applies where expert evidence is to be adduced from an expert instructed by the parties to the immediate proceedings. Where a party seeks to rely on expert evidence adduced in previous proceedings, they may seek to do so as hearsay evidence. In such a circumstance the court retains a discretion to exclude it, although it should be slow to do so. It could, however, be properly excluded before trial if to permit a party to rely on it would lead to disproportionate cost.

Question 22

What is the test for permission to adduce expert evidence? (read)

Answer 22

The burden lies on the party seeking to adduce expert evidence to persuade the court that it will assist the court. The question whether expert evidence is reasonably required to resolve proceedings is inevitably fact-sensitive and should be approached consistently with the overriding objective.
Expert evidence is, prima facie, admissible where there’s an acknowledged “body of expertise” governed by recognised standards and rules of conduct and which was pertinent to an issue to be decided by the court, but the court has a discretion to exclude such evidence if it would not help the determination of the issues.

Question 23

What is the test for permission to adduce expert evidence? (Summary)

Answer 23

… in order to be admissible in civil proceedings the expert evidence must be:

i) 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; and
ii) of such a nature that that a person without instruction or experience in the area of knowledge or human experience would not be able to form a sound judgment on the matter without the assistance of a witness possessing special knowledge or experience in the area

Question 24

What is the three stage test to determine whether expert evidence should be allowed on a particular issue?

Answer 24

i. is expert evidence necessary to decide an issue, rather than merely helpful? If yes, it should be allowed;
ii. if it is not necessary, will it assist the judge in determining an issue? If it would assist but is not necessary then the court should consider,
iii. if expert evidence on that issue was reasonably required to determine the proceedings. In answering the third question, consideration needed to be given to issues such as the value of the claim and proportionality, the effect of a judgment either way on the parties, the cost of the evidence and who will pay for it, whether any delay will be caused or trial date lost
Consideration should also be given in assessing the answers to these questions whether the expert evidence goes to more than one issue in the proceedings.

Question 25

Can a party rely on the expert witness report of another party?

Answer 25

It is not necessary for a party to seek permission to rely upon an expert’s report which had been disclosed by a party who had ceased to be involved in the proceedings, even though the court had not given specific permission for the remaining parties to rely upon those reports, but the party seeking to so rely should advise the other remaining parties which reports they intended to rely upon and for what purpose