Expert evidence Flashcards
(31 cards)
Which comes first - witness evidence or expert evidence?
Witness evidence usually comes first
If a party wishes to adduce expert evidence at trial, they must obtain a
court order
The court has a duty to restrict expert evidence to that which is
reasonably required to resolve the proceedings
When should the courts refuse expert evidence?
If the issues are factual and do not require expert evidence
At what stage do parties typically seek court permission to rely on expert evidence at trial?
at the case management stage
In which tracks is the court more likely to restrict expert evidence?
in the small claims track and the fast track
Limits on experts in fast track
1 expert per party in relation to any expert field; and
expert evidence in max. 2 expert fields
In the intermediate track, oral expert evidence at trial is likely to be limited to
2 experts per party
When applying for permission, information about the expert should be set out in the
directions questionnaire (DQ)
When parties apply for permission, they must:
Provide an estimate of the costs of the proposed expert evidence;
Identify the expert’s name and field (if practicable)
Duty of experts
to help the court on matters within their own expertise - this overrides any obligation to the party instructing them
the Ikarian Reefer Guidelines
Expert evidence presented to a court should be the independent product of the expert, uninfluenced as to form or content by the pressures of litigation;
expert should present objective, unbiased opinion; etc.
When should photographs, plans, survey reports and other documents referred to in the expert evidence be provided to the other side?
at the same time as the exchange of reports
Is the letter of instruction to an expert privileged from inspection?
No
an expert report must be addressed to
the court
Draft expert reports are generally subject to
litigation privilege
Rather than each party instructing its own expert, to save costs, the parties can agree to appoint a
single joint expert
Questions must be submitted to the expert within
28 days of service of the expert’s report
If expert submits written requests for direction from the court, they must
provide a copy of any proposed request for directions to the party instructing them at least 7 days before filing it at court; and
provide a copy to all other parties at least 4 days before filing it at court
Do agreements between experts bind the parties?
Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound
Do the parties and/or their legal representatives attend the experts’ discussion?
No, unless ordered by the court or agreed by the parties and the experts
In small claims track and fast track cases, the court will only order the expert to appear at trial to give oral evidence if
it is in the interests of justice to do so
hot-tubbing
where some or all the evidence of experts from similar disciplines is given concurrently
Why will the courts be reluctant to grant permission to call other experts after receiving an unfavourable expert report?
the court prevents ‘expert shopping’ (looking out for the opinion most favourable to its case)
