#19719 - 15. Bpc Civil Litigation 2023 2024 Experts - BPC Civil Litigation

The current state of the law may be summarised by the following principles.

1. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings.

2. The existence of such an interest, whether as an employee of one of the parties or otherwise, does not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection which matters, not the mere fact of the interest or connection.

3. Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.

4. The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether an expert witness should be permitted to give evidence.

5. The questions which have to be determined are whether:

   1. the person has relevant expertise; and

   2. he is aware of his primary duty to the court if they give expert evidence, and are willing and able, despite the interest or connection with the litigation or a party thereto, to carry out that duty.

6. The judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.

7. If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.

• Expert evidence constitutes an exception to the general rule that only evidence of fact may be adduced. There are four considerations which govern the admissibility of expert evidence:

  • Whether it will assist the court in its task;

  • Whether the expert has the necessary knowledge and experience;

  • Whether the expert is impartial in their presentation and assessment of the evidence; and

  • Whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

• It is not the function of an expert witness to give their opinion on issues of law.

• If a witness makes a statement on any matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

Duty to Restrict Expert Evidence:

• Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

  • If a claim is on the small claims track or the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

• Expert evidence may only be adduced with the court’s permission.

  • When parties apply for permission they must provide an estimate of the costs of the proposed expert and identify:

    • The field in which expert evidence is required and the issues which the expert evidence will address; and

    • Where practicable, the name of the proposed expert.

  • Permission is related to the expert identified.

• It may give directions as to the contents and the way in which the evidence is placed before the courts. Two elements to consider:

  • Is the evidence admissible; whether there is a recognised body of expertise governed by recognised standards and rules of conduct relevant to the question which the court has to decide.

  • Is the evidence reasonably required to resolve the proceedings.

    • Where it is merely helpful, it must be excluded.

    • If the evidence would be of assistance, but not necessary, then the court would be able to determine the issue without it.

• Expert evidence should be given in a written report unless the court directs otherwise.

• A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

Court’s permission:

• Although the court’s permission is not generally required to instruct an expert, the court’s permission is required before an expert’s report can be relied upon or an expert can be called to give oral evidence.

• Permission may be given in a case management direction or in response to an application to the court. Cannot be circumvented by including evidence within a witness statement or as annex to one.

• Permission must be sought for foreign law expert evidence.

• If the parties wish to rely on the expert evidence from previous proceedings they can do so as hearsay evidence without permission.

Guidance:

• The Court of Appeal has made it clear that attempts to introduce expert evidence late in the timetable, or the unavailability of the parties’ chosen experts for the trial will only very rarely be sufficient to vary case management directions or trial dates or grant an adjournment. They should make sure the expert is available, or instruct a new one.

• A judge is entitled to prefer a witness of fact to that of an expert witness. Where a judge prefers the evidence of a witness of fact over that of an expert witness, reasons justifying the preference should be given. The judge must also give sufficient reasons for preferring the evidence of one expert witness over another. Failure to do so results in valid grounds for an appeal and for remitting the case for a re-trial.

• Experts may provide evidence on the “ultimate issue” in proceedings, which is to say the matter to be decided by the court. They may not, however, determine such issues; this is for the court.

• In small claims, expert evidence is unnecessary in the ordinary case, particularly in respect of second hand car valuations because published and reputable valuation guides are sufficient.

• Where the issues in dispute are purely factual permission for an expert will be refused.

• The issue on which expert evidence is sought needs to be precisely identified, however, in some cases this may require expert assistance to help frame precisely which issues and in what area the expert can provide expert.

• A balance needs to be struck and the proportionality of admission assessed. The court will take into account:

  • The value of the claim and the cost of the expert evidence;

  • The importance of the issue in hand to the resolution of the litigation and to the parties;

  • The extent to which the expert evidence is likely to assist in the resolution of the issue;

  • The effect of a judgment either way on the parties;

  • Who is to pay for the commissioning of the evidence on each side and the means of the parties; and

  • What effect the introduction of the expert evidence would have on the management of the case in terms of delay and length of trial.

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

• Where a party has disclosed an expert’s report, any party may use that report as evidence at trial. It is not necessary to seek permission if it has been disclosed by a party who has ceased to be involved in proceedings.

• It is the duty of experts to help the court on matters within their expertise.

• This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Duties and responsibilities of the expert:

• Independence from litigation; should include their opinion on the whole of the subject matter, not just the stuff in support of the party which pays them

• Independent assistance to the court

• Should state the facts or assumptions on which their opinion is based.

• Should make it clear when something falls outside of their expertise

• If it is not properly researched, they should state the opinion is provisional.

• If a witness changes their view after exchange of reports, this should be communicated to the other side without delay

• Documents referred to must be provided to the other party at the same time as the exchange of reports.

• A party may put written questions to an expert’s report (which must be proportionate) to an expert instructed by another party or a single joint expert.

• Written questions may be put once only, must be put within 28 days of service of the expert’s report, and must be for the purpose only of clarification unless in any case the court gives permission or the other party agrees.

• Answers to questions will be treated as part of the expert’s report.

• Where a party has put a written question to an expert instructed by another party; and the expert does not answer, the court may order that the party may not rely on the evidence of that expert or that the party may not recover the fees and expenses of that expert from any other party.

Court’s powers to direct that evidence is to be given by a single joint expert:

• Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.

• Where the parties cannot agree, the court may select the expert from a list prepared or identified by the parties or direct that the expert be selected in such other manner as the court may direct.

• Where a party is unhappy they are not barred from seeking further expert evidence subject to the direction of the court.

Instructions to a single joint...