14: Expert evidence Flashcards
(36 cards)
What is the true role of the expert in legal proceedings?
The true role of the expert is to assist the trial judge in understanding any matter of art or science falling beyond the knowledge that can be expected of the trial judge.
What is the key difference between expert evidence and lay witness evidence?
Expert evidence differs in that it is opinion-based and provided by someone with specialized knowledge, while lay witness evidence is based on direct perception of relevant facts.
In what types of cases is expert evidence usually not permitted?
Expert evidence is usually not permitted in small claims track cases but is usually necessary in fast track and multi-track cases.
How might an expert witness be instructed in a case?
An expert witness may be instructed to report on a single joint expert basis or unilaterally for each party.
What does s3 Civil Evidence Act 1972 (CEA 1972) set out?
It sets out the test for calling an expert witness in civil proceedings, stating that:
- the expert may give their opinion on any relevant matter AND
- must be qualified to give the opinion.
Under what 4 conditions can an expert witness give evidence or conclusions based on opinion?
- Specialised Insight: Requires expertise beyond the judge’s ordinary knowledge.
- True Expert: The witness is genuinely qualified in the field.
- Reasonable Certainty: The expert’s conclusions are confidently reliable.
- Evidence-Based: Conclusions are backed by demonstrable scientific facts.
How might an expert be involved in a dispute as part of the advice sought to prepare the client’s case?
Any advice given by an expert acting in an advisory role for a party, on which that party does not intend to rely, will be privileged from disclosure and not subject to any case management.
How might an expert assist parties in resolving a dispute using ADR?
An expert can play a role in mediation, helping parties understand different viewpoints. If both parties have experts, they may explain differences in a joint session for better understanding.
What does the Pre-Action Protocol for Personal Injury Claims (PAPPIC) encourage regarding experts?
The PAPPIC encourages the joint selection of and access to experts about the value of the claim and allows the claimant to propose a list of experts to the defendant, who can object within a specified time.
What happens if the defendant objects to all proposed experts by the claimant?
The defendant is free to instruct an expert of their choice, but the court will decide later if the defendant has behaved reasonably.
Who organizes access to relevant medical records by the expert in a personal injury claim?
The claimant organizes access to relevant medical records by the expert.
How long does the defendant have to agree to or raise questions to the medical expert’s report in the PAPPIC?
The defendant has 28 days from the service of the report to agree to or raise questions to the medical expert via the claimant’s legal representatives.
Who pays for the cost of the expert’s report and answering questions?
The cost of the report is payable by the claimant, but the cost of the expert answering any questions is usually borne by the party that asks the questions.
Can a guarantee be given that the court will allow the client to recover costs for retaining an expert at the pre-action stage?
No, a guarantee cannot be given as the court retains discretion over the use of expert evidence and the recovery of costs.
What does the RTA Protocol say about the challenge of a medical report?
The RTA Protocol provisions do not allow the claimant to challenge the factual accuracy of a medical report after it is disclosed to the defendant.
What is the primary role of a “treating” expert in personal injury claims?
A treating expert’s primary role is to treat the claimant’s injuries or illness, and their involvement usually predates the dispute.
How does a treating expert’s evidence differ from a Part 35 expert witness?
A treating expert gives evidence as a witness of fact, not opinion, while a Part 35 expert witness gives evidence as a witness of opinion, not fact.
Are the records of treating experts and Part 35 expert witnesses both disclosable?
No, the records of treating experts are disclosable documents in the proceedings, while the records of Part 35 expert witnesses are privileged from disclosure.
Who carries out an “immediate needs” assessment and are they governed by Part 35?
An “immediate needs” assessment is carried out by an independent assessor, usually a treating physician or surgeon, and is not governed by Part 35.
What should an “immediate needs” report cover?
The report should cover the claimant’s injuries and present condition, domestic circumstances, whether rehabilitation is suggested, the suggested intervention, and the likely cost and benefit.
Does the “immediate needs” report deal with diagnosis, causation, or long-term care requirements?
No, it is an immediate needs report and does not deal with diagnosis, causation, or long-term care requirements.
What is the overriding duty of an expert to the court?
The duty of an expert is to help the court on matters within their expertise, overriding any obligation to the party instructing or paying the expert’s fees.
What should experts consider obtaining if they give expert evidence ?
Experts should consider obtaining liability insurance even if they only give expert evidence occasionally.
What are the differences between fast track and multi-track claims regarding expert witnesses?
- Fast track: Directions about expert evidence usually given on paper after parties file DQs; SJEs by default.
- Multi-track: Directions usually given at a costs and case management conference (CCMC) after parties file DQs; SJEs by default unless good reason not to do so.
