Expert Evidence (Syllabus 20)

Question 1

What is expert evidence an exception to?

Answer 1

the general rule that only evidence of fact may be adduced

Question 2

Where do the rules under Part 35 not apply?

Answer 2

on the small claims track

Question 3

Does Part 35 (expert evidence) apply on the small claims track?

Answer 3

No

Question 4

What is expert evidence usually?

Answer 4

evidence of opinion.

Question 5

Is the function of an expert. to give their opinion on issues of law?

Answer 5

No

Question 6

What is the duty to restrict expert evidence?

Answer 6

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

Question 7

What is meant by an expert?

Answer 7

a person who has been instructed to give or prepare expert evidence for the purpose of proceedings

Question 8

What is meant by a single joint expert?

Answer 8

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

Question 9

Who do experts owe a duty to?

Answer 9

it is the duty of experts to help the court on matters within their expertise.

Question 10

Is the unavailability of an expert a sufficient ground to vary the case management timetable?

Answer 10

No

Question 11

What is a judge entitled to when comparing the evidence of an expert and a witness of fact?

Answer 11

the judge is entered to prefer the evidence of a witness of fact than an expert. If this is the case, reasons justifying the preferment should be given.

Question 12

What do experts do in relation to the ultimate issues in a case?

Answer 12

they provide evidence on the matters, but they do not determine them (this is a matter for the judge).

Question 13

Can expert evidence be adduced without the permission of the court?

Answer 13

No

Question 14

What types of directions/restricitons can the court make with regard to expert evidence?

Answer 14

(1) the nature of the evidence which it requires
(2) the way in which the evidence should be placed before the court
(3) the ability to exclude evidence.

Question 15

Is a hypothetical situation allowed to be used by an expert to explain what they would have done?

Answer 15

No, this evidence is likely to be excluded.

Question 16

In financial and banking disputes, would expert evidence relating to the legal advice of a lawyer in relation to such issues be admissible?

Answer 16

No, the court would likely exclude this

Question 17

What are the duties of the expert?

Answer 17

(1) expert evidence should be the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation.
(2) an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise.
(3) an expert witness should state the facts or assumptions on which their opinion is based.
(4) an expert should make it clear when a particular question or issue falls outside their expertise

Question 18

When parties apply for permission to use an expert what must they provide?

Answer 18

an estimate of he costs of the proposed expert evidence and identify the field in which expert evidence is required and the name of the proposed expert.

Question 19

Where a claim has been allocated on the small claims or fast track, usually where permission is given how many experts will this be for?

Answer 19

one expert on a particular issue.

Question 20

In a soft tissue claim, what permission would normally be given?

Answer 20

(1) for one expert medical report
(2) where permission may not be given initially unless the medical report is a fixed cost one. If the claimant seeks permission to obtain a further medical report form a medical expert in-
(a) consultant orthopaedic surgeon
(b) consultant in accident and emergency
(c) GP
(d) physiotherapist registered with the Health and Care Professions Council
the report must be a fixed cost medical report.

Question 21

Can the court limit the amount of expert fees recovered by a party?

Answer 21

Yes

Question 22

If a party seeks to adduce expert evidence from previous proceedings, will this be done through Part 35?

Answer 22

No, it will be can be adduced by hearsay evidence.

Question 23

What is the test for permission to adduce expert evidence?

Answer 23

the burden lies on the party seeking to adduce the expert evidence to persuade the court tha it will assist them.

Question 24

Where is expert evidence prima facie admissible?

Answer 24

where there is a body of expertise governed by recognised standards and rules of conduct and which was pertinent to an issue to be decided by the court.

Question 25

When must admissibility be assessed?

Answer 25

at an early stage in case management

Question 26

What do the pre-action protocols for personal injury and clinical negligence want parties to do?

Answer 26

identify the need for expert evidence at the stage of investigating the claim, and in fast track PI cases, in particular, try to instruct a single expert in a particular discipline.

Question 27

What is the general requirement for expert evidence?

Answer 27

for it to be given in a written report.

Question 28

Does an expert need to attend a hearing for a claim on the small claims or fast track?

Answer 28

Not unless it is necessary in the interests of justice

Question 29

Who may a party put written questions about an expert’s report to?

Answer 29

an expert instructed by another party or a single joint expert

Question 30

What are the rules about written questions?

Answer 30

they can only be put once, they must be put within 28 days of service of the expert’s report and must be for the purpose of clarification of the report (unless the curt gives permission or the other party agrees).

Question 31

What is a party has put a written question to an expert and the expert does not answer the question?

Answer 31

The court may order that the party who instructed the expert cannot rely on the evidence of the expert or that the party may not recover the fee or expenses of that expert from any other party.

Question 32

What is the court’s power to direct that evidence is to be given by a single joint expert?

Answer 32

where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue be given by a single joint expert

Question 33

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

Answer 33

the court may-

(1) select the expert from a list prepared or identified by the parties; or
(2) direct that the expert be selected on such another manner as the court directs.

Question 34

If a party is unhappy with the evidence of a single joint expert, to whom they agreed to giving evidence can they instruct another expert?

Answer 34

Yes, the fact they agreed to the original expert is not a bar, but they should have a good reason for seeking further expert evidence.

Question 35

What must an expert’s report comply with?

Answer 35

the requirements set out in PD 35.

Question 36

What must be at the end of an expert’s report?

Answer 36

a statement that the expert understands and has complied with their duty to the court.

Question 37

What must the expert’s report state?

Answer 37

the substance of all material instructions, whether written or oral, on the basis of which the report was written.

Question 38

Are the instructions to an expert privileged?

Answer 38

They are not privileged but the court will not order disclosure of any specific document or permit any questioning in court unless it is satisfied that there are reasonable grounds to consider the statement of instructions given to be incomplete or inaccurate.

Question 39

If an expert’s report is disclosed, who can use that report in evidence?

Answer 39

any party in the proceedings can use hat report as evidence at trial.

Question 40

Does a party need to seek permission to rely upon an expert’s report which had been disclosed?

Answer 40

No, the court’s permission is not needed but the party seeking to rely on another party’s expert report should advise the other remaining parties which reports they intended to rely upon.

Question 41

What can the court direct in relation to different experts?

Answer 41

the court may direct a discussion between experts

Question 42

What would the purpose be for the court directing for discussions to take place between experts?

Answer 42

identify and discuss the expert issues in the proceedings and where possible, reach an agreed opinion on those issues.

Question 43

Can the content of the discussions between the experts be referred to at the trial?

Answer 43

Not unless the parties agree.

Question 44

Can an agree reached by experts during discussions bind the parties?

Answer 44

Not unless they expressly agree to be bound by the agreement.

Question 45

What are the consequences of failure to disclose an expert’s report?

Answer 45

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

Question 46

Do expert’s have a right to ask the court for directions?

Answer 46

experts can file written requests for directions for the purpose of assisting them in carrying out their functions.

Question 47

When must experts provide copies of direction to other parties in the proceedings?

Answer 47

(1) to the party instructing them, at least 7 days before they file the requests; and
(2) to all other parties, at least 4 days before they file them.

Question 48

What does s.3 Civil Evidence Act 1972 state?

Answer 48

where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

In civil proceedings, a statement of opinion on what is perceived by a witness is admissible as a fact that is perceived personally by him.