Expert Evidence

Question 1

What is CPR 35?

Answer 1

non-exhaustive rules on expert evidence

Question 2

What is s.3(1) Civil Evidence Act 1972?

Answer 2

Any opinion an expert witness gives on a relevant matter he is qualified to give evidence on should be admissible.

Question 3

s.3(2) Civil Evidence Act 1972?

Answer 3

An expert’s statement given on facts they’re not qualified for an expert is admissible as evidence of what they perceived.

Question 4

When is expert evidence permitted to be used?

Answer 4

When it is admissible according to evidential rules, meets the overriding objective, and is reasonably required to resolve proceedings.

Question 5

Adams v Canon [1621]?

Answer 5

Expert evidence is an exception to the general rule that only evidence of fact may be adduced

Question 6

Kennedy v Cordia UKSC [2016]?

Answer 6

Confirmed 4 considerations governing admissibility of expert evidence

Question 7

What are the 4 Kennedy admissibility points for expert evidence?

Answer 7

(1) will it help the court (2) does the expert have necessary knowledge and experience (3) is the expert impartial in presentation (4) is there a reliable body of knowledge to underpin evidence

Question 8

CPR 35.1?

Answer 8

Expert evidence is restricted to ONLY what is reasonably required to resolve proceedings.

Question 9

How common is the use of expert evidence in small claims?

Answer 9

Not common - it shouldn’t ordinarily be needed.

Question 10

What is the use of expert evidence with second hand car valuations?

Answer 10

Not needed. Normal published valuation guides is enough.

Question 11

What is the use of expert evidence in professional negligence cases?

Answer 11

It is standard practice, but not a requirement, to have an allegation supported with a relevant expert statement.

Question 12

What is the use of expert evidence in medical evidence cases?

Answer 12

No need in low value whiplash claims, but appropriate for PI claims, life expectancy, but not to bolster other evidence. Can be restricted to 1 expert.

Question 13

What is the use of expert evidence with financial or competition cases?

Answer 13

Expert evidence as to market practice is permitted, but not as to whether that standard was met.

Question 14

Do the rules on expert evidence apply to judicial review?

Answer 14

Yes, but it is very rarely needed.

Question 15

What is the use of expert evidence with IP cases?

Answer 15

Not needed just to comment on consumer eye ppeal, but can be used.

Question 16

Define expert (35.2(1))?

Answer 16

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

Question 17

Define single joint expert (35.2(2))?

Answer 17

an expert instructed to give a report to the court by 2 or more parties

Question 18

What are the 5 types of factual evidence an expert can give?

Answer 18

(1) what educates the court on technical matters (2) draws on their general knowledge (3) or collates general field knowledge (4) to identify facts non-experts could not (5) evidence of foreign law.

Question 19

Where is the expert’s duty to the court?

Answer 19

CPR 35.3

Question 20

What is the expert’s duty in giving evidence?

Answer 20

To help the court - this overrides duties to the party instructing them

Question 21

The Ikarian Reefer [1993]?

Answer 21

Established the 7 core duties and responsibilities of experts when giving evidence

Question 22

What is the 1st duty of experts according to the Ikarian Reefer?

Answer 22

to produce evidence uninfluenced as to the form and content

Question 23

What is the 2nd duty of experts according to the Ikarian Reefer?

Answer 23

Expert witnesses should provide independent assistance to the court i.e. objective unbiased opinion

Question 24

What is the 3rd duty of experts according to the Ikarian Reefer?

Answer 24

Experts should state the facts or assumptions on which their opinion is based and should not omit.

Question 25

What is the 4th duty of experts according to the Ikarian Reefer?

Answer 25

An expert should make it clear when a particular question or issue falls outside their expertise

Question 26

What is the 5th duty of experts according to the Ikarian Reefer?

Answer 26

If an expert's opinion isn't properly researched due to insufficient data, they must say so and indicate their opinion as provisional

Question 27

What is the 6th duty of experts according to the Ikarian Reefer?

Answer 27

If an expert changes their view after exchanging reports, they should communicate to other parties without delay and when appropriate for the court

Question 28

What is the 7th duty of experts according to the Ikarian Reefer?

Answer 28

Where expert evidence refers to materials, these must be provided to opposition at the same time as exchanging of reports.

Question 29

What protections do expert witnesses have?

Answer 29

Expert witnesses have immunity from defamation claims but not for negligence

Question 30

CPR 35.4?

Answer 30

No party may call or use an expert's report without the courts permission

Question 31

What 3 things must parties provide when applying to use an expert witness?

Answer 31

(1) an estimate of costs (2) the expert field needed and what issues it will address (3) if possible, the name of chosen expert

Question 32

How many experts are parties permitted on the small claims track?

Answer 32

1

Question 33

How many experts are parties permitted on the intermediate track?

Answer 33

Usually 2

Question 34

What is a key court power regarding costs of experts?

Answer 34

The court may limit the amount of fees and expenses deemed recoverable.

Question 35

Can parties use expert evidence given in previous proceedings?

Answer 35

Yes - as hearsay evidence - and in this case Part 35 doesn't apply

Question 36

What is the test for permission to adduce expert evidence?

Answer 36

Whether expert evidence is reasonably required to resolve proceedings is fact sensitive and should be approached in line with the overriding objective.

Question 37

CPR 35.5?

Answer 37

Generally, expert evidence should be given as a written report. At small claims or fast track experts will attend ONLY when necessary for justice.

Question 38

What expert reports can parties question?

Answer 38

Parties may put written questions to single joint experts or experts instructed by other parties

Question 39

What are the rules on questioning experts?

Answer 39

Written questions to clarify content may be put to experts ONCE within 28 days of service of their report, unless court or parties allow beyond mere clarification.

Question 39

What is the status of an expert's answer to a written question?

Answer 39

The expert's answer is deemed part of their expert report.

Question 40

What are the 2 responses of the court when an expert does not answer a written question?

Answer 40

The court can order that the instructing party may not rely on that evidence OR that they cannot recover fees and expenses from other party.

Question 41

CPR 35.7?

Answer 41

Where 2+ parties want expert evidence, the court can direct use of a single expert. If parties can't agree on one, they can prepare a list the court will choose from.

Question 42

What is important about the use of single experts for multiple parties?

Answer 42

It does not bar parties from then seeking further expert evidence.

Question 43

CPR 35.8?

Answer 43

Any relevant party can instruct a single joint expert and must send copies of instructions to fellow relevant parties. The costs are jointly and severally liable.

Question 44

What happens if a party has access to info not reasonably available to another party for expert evidence?

Answer 44

The court can direct the party to file a record of the information and serve a copy of that document.

Question 45

What MUST be included in an experts report according to 35.10?

Answer 45

A statement that the expert understands and complies with their duties and state the substance of all oral and written material used to form the report.

Question 46

Who can use an expert's report?

Answer 46

Where a party has disclosed an expert's report any party can use it as evidence at trial (35.11)

Question 47

Can experts be used to identify issues and potentially reach agreed opinions?

Answer 47

Yes (35.12) and the court may specify the issues that must be discussed and that a joint statement outlining agreements and disagreements and reasons why.

Question 48

Who is permitted to know about the contents of a court ordered discussion between experts?

Answer 48

No-one at trial unless the parties all agree.

Question 49

Is an agreement discussed by experts binding on parties?

Answer 49

No - experts agreeing on an issue during discussions only binds if parties expressly agree to it.

Question 50

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

Answer 50

The report may not be used at trial, nor can the expert be called as a witness, unless court orders so.

Question 51

How should experts ask questions?

Answer 51

They should file written requests of questions to assist them in their role and provide copies to other parties

Question 52

By when must experts provide copies of their requests for assistance in their duties to their instructing party?

Answer 52

at least 7 days before filing the request

Question 53

By when must experts provide copies of their requests for assistance in their duties to all party?

Answer 53

at least 4 days before they file the request