Expert evidence

Question 1

when can expert evidence be relied upon?

Answer 1

if the court’s permission has been obtained (even if evidence obtained pre-issue)

Question 2

what information must be provided when applying for permission?

Answer 2

When applying for permission, must inc.:
o Costs,
o Field + issues they will address
o Name (if practicable)

Question 3

what extent of expert evidence is allowed?

Answer 3

Expert evidence restricted to that which is reasonably required to resolve proceedings

Question 4

what form does the expert evidence take?

Answer 4

Shall be written unless the court directs otherwise

Question 5

are instructions privileged? explain

Answer 5

Instructions are not privileged, but the court will not order disclosure of a document or cross-examination of experts on instructions unless there are reasonable grounds to believe the instructions were inaccurate/incomplete

Question 6

what are the experts’ duties? (3)

Answer 6

1. Duty to help court on matters within their expertise
   o This duty overrides any obligation to instructing party
2. Expert should provide objective, unbiased opinion within expertise
3. They should not assume the role of advocate

Question 7

when will the court direct an SJE?

Answer 7

Court can direct an SJE where 2 or more parties wish to submit expert evidence on a particular issue

Question 8

what will the court take into account when deciding whether to grant an SJE?

Answer 8

Court takes into account all circumstances, inc.:
o Whether separate experts are proportionate, considering:
 Amount in dispute
 Importance to parties
 Complexity of the issue
o If an SJE more cost-effective + can resolve the issue more speedily
o Evidence on liability, causation or quantum
o Party has already instructed an expert

Question 9

what happens if the court cannot agree an SJE?

Answer 9

If parties cannot agree the SJE, the court can:
o Pick an expert from a list prepared by parties; or
o Direct the expert is selected in another manner

Question 10

who pays the SJE’s fees?

Answer 10

Parties are jointly + severally liable for expert’s fees (unless court directs otherwise)

Question 11

who are the SJE’s instructions sent to?

Answer 11

Instructions must be sent to the SJE + o/s

Question 12

what is the purpose of an expert discussion?

Answer 12

o Narrow issues
o Establish extent of agreement + reasons for disagreement
o Actions to be taken to resolve disagreement

Question 13

is an expert meeting compulsory? what might the court order?

Answer 13

• Not mandatory unless ordered by the court
• Parties + legal reps do not attend unless parties agree or court ordered
• The court can at any stage direct discussion between experts to identify + discuss expert issues and, where possible, reach an agreed opinion on them
• The court may direct the experts prepare a statement inc. what is agreed + not agreed (with summary of reasons for disagreement)

Question 14

is the expert’s agreement binding?

Answer 14

Agreement not binding unless parties agree to be bound

Question 15

are discussions disclosable at trial?

Answer 15

Content of discussions not referred to at trial unless parties agree