20. Expert Evidence

Question 1

What three overlapping issues does the question of expert evidence raise?

Answer 1

(1) Is it admissible according to the law of evidence?

(2) Does it constitute expert evidence for the purposes of CPR 35?

(3) It is reasonably required to resolve the proceedings?

Question 2

What is expert evidence an exception to?

Answer 2

The general rule that only evidence of fact (rather than opinion) may be adduced

Question 3

What are the four considerations that govern the admissibility of expert evidence (from case law)?

Answer 3

(1) Will it assist the court in its task?

(2) Does the expert have the necessary knowledge and experience?

(3) Is the expert impartial in their presentation and assessment of the evidence?

(4) Is there a “reliable body of knowledge or experience to underpin the expert’s evidence”?

Question 4

Can expert evidence that is NOT reasonably required to resolve the proceedings be adduced?

Answer 4

No! The court should not give permission in such a case

The purpose of this rule is to limit the use of unnecessary expert evidence

Question 5

What are the two examples of types of cases we’re meant to know where we have guidance on whether expert evidence is ‘reasonably required’?

Answer 5

(1) Small claims

• Expert evidence is unnecessary in the ordinary case in respect of second-hand car valuations because published and reputable valuation guides are sufficient

(2) Computer Science

• In a case, permission for a computer science expert was refused on the basis that the issues in dispute were purely factual

Question 6

Definition of ‘expert’

Answer 6

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

Question 7

What is a ‘single joint expert’?

Answer 7

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

Question 8

Will the fact that parties seek to introduce expert evidence late in the timetable or the fact that a chosen expert is unavailable for trial window or fixed trial date be a good reason for varying case management directions/trial dates?

Answer 8

Only very rarely

Question 9

Can a judge prefer the evidence of a witness of fact to that of an expert witness?

Answer 9

Yes - where the judge takes this view, they should give reasons justifying the preference

Question 10

What must a judge do if they prefer the evidence of one expert over another?

Answer 10

Give sufficient reasons to justify this - failure to do so may be valid grounds for an appeal and for remitting the case back for a re-trial

Question 11

What is the ‘ultimate issue’ in proceedings and can experts provide evidence on it?

Answer 11

It’s the issue that needs to be decided - experts CAN provide evidence on it, but can’t decide it (not their job to decide the case)

Question 12

What is the primary duty of the expert? What more specific guidance can we get from the case law on the expert’s duty?

Answer 12

Primary duty: to help the court on matters within their expertise.

Guidance from case law:

• Expert evidence should be (and should be seen to be) independent/objective/unbiased and uninfluenced by the litigation
• Experts should never assume the role of an advocate
• Should state the facts + assumptions on which their opinion is based
• Should consider all material facts (including those which might detract from their opinion)
• Should make it clear when a particular issue falls outside their area of expertise
• If they are not able to sufficiently research an issue bc of the unavailability of data, they should state that their opinion is a provisional one
• If the expert changes their view, the change should be communicated to the other side without delay and when appropriate to the court
• Any documents, photographs, plans etc that the expert refers to in their report must be provided to the opposite party at the same time as the exchange of reports

Question 13

Is the expert’s duty to the court subordinate to their duty to the person who instructs them or by whom they are paid?

Answer 13

No! It overrides the duty to the person who instructs them or by whom they are paid!

Question 14

Can a party put in expert evidence without the court’s permission?

Answer 14

No - can’t call an expert and also can’t put in a report without the court’s permission

BUT where a party seeks to rely on expert evidence adduced in previous proceedings, they may seek to do so as hearsay evidence - no need for permission for this, although the court has a discretion to exclude such evidence (but should be slow to do so). So basically the law draws a distinction between instructing a new expert and relying on already existing evidence and between putting it in evidence and just relying on evidence as hearsay.

Question 15

When applying for permission to adduce expert evidence, what must a party provide?

Answer 15

(1) an estimate of the costs of the proposed expert;

(2) Identify the field in which expert evidence is required and the issues which the expert will address
; and

(3) where practicable, the name of the proposed expert

Question 16

Can a court give ‘blanket permission’ to use expert evidence?

Answer 16

No - if permission is granted it is only in relation to the specifics in the request (i.e. the specific expert named or the field identified in the application)

Question 17

Can the court specify the issues which the expert evidence should address in the order granting permission to call expert evidence?

Answer 17

Yes

Question 18

What is the court’s power in relation to recoverable expert fees?

Answer 18

The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

In the case of joint experts the court may also order that some or all of the parties wishing to submit the evidence pay the fees into court.

Question 19

Can the court only give permission to use an expert on the application of a party?

Answer 19

No - it can also do this in its own case management directions

Question 20

Does the Personal Injury Pre-Action Protocol require a medical expert, selected in accordance with the protocol, to be jointly instructed?

Answer 20

No - although the protocols encourage parties to instruct a joint expert, they don’t have to be

Question 21

What is the info from the commentary that we are meant to know about disclosure of medical reports?

Answer 21

• They are privileged and the court cannot order their production.
• BUT C would need the court’s permission before relying on another expert’s report in the proceedings
• the court can impose conditions on the right to rely on a report: e.g. in one case C had obtained (pre-issue) a report from one medical expert whose name had been given to D, but after issue obtained a second report from a different expert. The court imposed the condition that both reports need to be disclosed if C wished to rely on the second report.

Question 22

In what form should expert evidence usually be given?

Answer 22

In a written report - unless the court directs otherwise

Question 23

Is a court likely to direct an expert to attend a hearing in a small claims or fast track case?

Answer 23

No - it will not direct an expert to attend a hearing in such a case unless it is necessary to do so in the interests of justice

Question 24

What are the requirements that govern written questions that are put to experts about their reports?

Answer 24

(1) The questions must be proportionate
(2) Questions may be put only once
(3) Questions must be put within 28 days of service of the expert’s report; and
(4) Questions must be for the purpose only of clarification of the report, unless (i) the court gives permission to ask other questions or (ii) the other party agrees

Question 25

What orders can a court make where a party has put a written question to an expert instructed by another party and the expert has not answered the question?

Answer 25

(1) That the instructing party may not rely on the evidence of that expert; or
(2) That the instructing party may not recover the fees and expenses of the expert from any other party

Question 26

Who must pay any fees charged by an expert for the answering of written questions about their report?

Answer 26

The party or parties who instructed the expert - but this does not have any bearing on the ultimate decision of the court regarding costs

Question 27

What powers does the court have where two or more parties wish to submit expert evidence on a particular issue?

Answer 27

• It can direct that the evidence on that issue is to be given by a single joint expert.
• If the parties cannot agree who the expert should be, the court may select the expert from a list prepared or identified by the relevant parties or it may direct that the expert be selected in such other manner as the court directs.

Question 28

Is calling experts to give oral evidence routinely done?

Answer 28

No - it’s a measure of last resort because of the costs involved

Question 29

If the parties have instructed a single joint expert, can either party depart from it and instruct another expert (e.g. bc they are dissatisfied with the report and wish to know if there are grounds to attack it)?

Answer 29

• In principle this is possible
• The joint report is merely the starting point
• Obviously other avenues should be considered first (esp. asking the joint expert written questions)
• Whether permission to instruct a second expert should be granted is a highly fact-sensitive question. Ultimately the court will need to determine whether it’s in the interests of justice. But the courts don’t seem very anti such a course of action, if the second opinion is needed to enable a party to know whether it has grounds to criticise the first report

Question 30

Who can give instructions to a single joint expert? What rules govern the giving of instructions?

Answer 30

• All relevant parties can give instructions (i.e. the parties wishing to submit the expert’s evidence)
• When giving instructions the party instructing must send a copy of the instructions to all other relevant parties

Question 31

Which directions can a court give in relation to single joint experts?

Answer 31

• It can give directions about the payment of the expert’s fees and expenses; and
• about any inspection, examination or experiments which the expert wishes to carry out

Question 32

Who is liable for the payment of a joint expert’s fees and expenses?

Answer 32

The relevant parties (i.e. those wishing to submit the evidence) are jointly and severally liable, unless the court directs otherwise

Question 33

What can a court do where one party has access to information which is not reasonably available to another party?

Answer 33

It can direct the party who has access to the information to

(a) prepare and file a document recording the information; and
(b) serve a copy of that document on the other party

This document must include sufficient details of all the facts, tests, experiments and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper interpretation of the information and an assessment of its significance.

Question 34

Who can use an expert’s report as evidence at trial once it has been disclosed?

Answer 34

Any party - no need to seek permission to use it. This also means that if a party has ceased to be a party to the proceedings any other party that is still a party to the proceedings can rely on a report previously disclosed by the party that has now stopped participating. However, if someone chooses to do this they should notify the other parties to the proceedings and explain which reports they intend to rely on, for what purpose and why.

But n.b. where two claims have been ordered to be case managed and tried at the same time but have not been formally consolidated, a party to one claim will not be able to rely upon this rule so as to use a report disclosed by a party to the other claim.

Question 35

Who should an expert’s report be addressed to?

Answer 35

The court - NOT to the party from whom the expert has received instructions

Question 36

What must an expert’s report contain?

Answer 36

(1) Details of the expert’s qualifications;

(2) Details of any literature or other material that has been relied on;

(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 opinions 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 the CPR

Question 37

What must an expert’s report be verified by?

Answer 37

A statement of truth

Question 38

Can an expert be cross-examined on the statement of the instructions they have received that is contained in their report?

Answer 38

Yes, this statement is not privileged.

However, the court will not allow the expert to be cross-examined or order disclosure of any specific document, unless the court is satisfied that there are reasonable grounds to consider the statement of instructions given by the expert to be inaccurate or incomplete.

Question 39

What factors will the court consider in deciding whether to grant permission to the parties to rely on expert evidence and whether the evidence should be from a single joint expert?

Answer 39

(1) Whether 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

(2) whether a single joint expert is likely to be faster and more cost-effective

(3) whether expert evidence is to be given on the issue of liability, causation or quantum

(4) whether 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

(5) whether a party has already instructed an expert and whether that was in compliance with any PD or pre-action protocol

(6) Whether written questions are likely to remove the need for the other party to instruct another expert

(7) whether questions put to a single joint expert may not conclusively deal with all issues that may require testing prior to trial

(8) whether a con may be required with the legal reps, experts and other witnesses which may make instruction of a single joint expert impractical; and

(9) whether a claim to privilege makes the instruction of any expert as a single joint expert inappropriate

Question 40

What may the court order in relation to discussions between experts?

Answer 40

• May (at any stage) direct a discussion between experts requiring them to: (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues
• It may specify the issues which the experts must discuss
• It 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 + summary of reasons for disagreement

Question 41

Does an agreement reached by experts during a discussion bind the parties?

Answer 41

No - unless the parties expressly agree to be bound

Question 42

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

Answer 42

No - not unless the parties agree

Question 43

Are discussions between experts mandatory?

Answer 43

Not unless directed by the court

BUT the parties must consider at an early stage whether such a discussion would be useful and, if so, when a discussion should be held

Question 44

What is the purpose of discussions between experts?

Answer 44

It’s not to settle the case, but to agree and narrow issues and in particular to identify:

(i) the extent of the agreement between the experts;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed

Question 45

Do the parties or their legal reps attend expert discussions?

Answer 45

• Not unless ordered by the court or agreed by all parties.
• If legal reps do attend they should not intervene other than to answer qs put to them
• the experts are entitled to hold part of their discussions in the absence of legal reps

Question 46

What must be prepared after an expert discussion?

Answer 46

A statement setting out:

(i) the extent of the agreement between the experts;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed

If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.

Question 47

What are the formal requirements that govern the statement that must be prepared at the end of a discussion between experts?

Answer 47

• Copies must be signed by the experts asap and no later than 7 days after the conclusion of the discussion
• Copies of it must be provided to the parties no later than 14 days after signing

Question 48

What is the consequence of failing to disclose an expert’s report?

Answer 48

The party may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

Question 49

What rules govern an expert’s right to ask the court for directions?

Answer 49

• Can request this in writing
• Unless the court orders otherwise, the expert must provide copies of the proposed requests (a) to the party instructing them, at least 7 days before they file the requests; and (b) to all other parties, at least 4 days before they file them
• Court can also serve a copy of the directions it gives on a party