#10367 - Expert Evidence - BPC Civil Litigation

NON-EXPERT OPINION EVIDENCE

• opinion = conveyance of facts personally perceived

• can give evidence on matters where impossible to separate inferences from perceived facts based on

• admissibility - no strict rules:

  • following admissible:

    • e.g. ID: people, voices, objects, handwriting, speed, temperature, weather, passing of time, drugs

    • description of condition of objects

    • description of value of commonplace objects

    • opinion on: age, health, bodily / emotional state, reaction to event / circumstances, whether drunk

EXPERT OPINION EVIDENCE

ADMISSIBILITY OF EXPERT EVIDENCE

• general rules

  • artistic, scientific, technical issues

    • must be decided on basis of expert evidence

    • in absence of expert evidence, issue must be decided against party with burden of proof

  • requirements for admissibility

  1. matter must call for expertise

     1. i.e. NOT within in experience of most members of public

     2. matters of credibility, motive for judge NOT expert

     3. RTA reconstruction experts: NOT permitted to analyse WSs to deduce when motorists should've seen each other, what evasive action should've taken, whether any drivers should be criticised for expert (matters for judge)

     4. expert as factual witness: if gives evidence of primary facts within own knowledge, but often asked for professional opinion

  2. area must be established field of expertise

     1. usually obvious

     2. if NOT party seeking to call must satisfy court

  3. witness must have suitable qualifications and / or experience

     1. experience (without qualifications) can be enough e.g. mechanic

     2. evidence of expert with qualifications (but without experience) carries little weight

  4. permission must be obtained from court

  • assumed facts

    • expert CAN express opinion directly on issues in case (CEA 1972 s3 - partly abolished ultimate issue rule)

    • part of ultimate issue rule still in tact: should NOT attempt to make findings of fact + should express opinion on basis of assumed fact (ID'd in report)

CONTROL OF EVIDENCE

• court's power to control evidence + exclude otherwise admissible evidence (r32.1) particularly relevant for experts, as often expensive + time consuming

GENERAL PROVISIONS

• interpretation / definitions

  • expert = person instructed to give / prepare expert evidence for purpose of proceedings (r35.2(1))

• experts' duty to court

  • the essence

    • duty to court overrides obligation to those instructing / paying them (r35.3)

    • duty = to help court by providing objective, unbiased opinions matters within their expertise (r35.3, PD 35 para 2.2)

  • other considerations

    • assist court in fulfilling OO (protocol para 4.2)

    • expert evidence should be and be seen to be (Whitehouse v Jordan) independent product of expert uninfluenced by pressures of litigation (PD 35 para 2.1)

    • experts should consider all material facts including those adverse to their opinions (PD 35 para 2.3)

    • expert must give evidence honestly, even if involves concessions contrary to client's interest (Jones v Kaney)

    • if issue falls outside expertise / unable to reach definite opinion, expert should make it clear (PD 35 para 2.4)

    • if expert's view changes on material issue after producing report, should communicate change to all parties without delay + court when appropriate (PD 35 para 2.5)

  • if expert adopts biased / irrational approach

    • after giving expert time to make representations, may refer conduct to professional body (Pearce)

  • choice of expert in light of duties

    • employee of party - can be called as expert witness if qualified + understands duty to court (Field v Leeds CC)

    • expert evidence on own behalf - held to be entitled (psychologist gave re: why conduct not below standard of care - DN v Greenwich LBC)

PRE-TRIAL STEPS

• expert evidence only admissible with permission

  • DON'T need court's permission to instruct expert

  • BUT need court's permission to call expert / put in expert report (r35.4(1))

  • in deciding whether to grant permission, court:

    • seeks to restrict expert evidence to that reasonably required to resolve proceedings (r35.1) i.e. restrict oral evidence + number of experts (PD35 para 1); +

    • considers if costs proportionate to benefits, especially of multiple experts (r1.4(2)(h))

  • application process

1. the application (r35.4(2))

   1. provide estimate of costs of proposed expert evidence

   2. ID:

      1. field evidence required in;

      2. issues expert will address; +

      3. (where practicable) name of proposed expert

2. the order / directions granting permission (r35.4(3))

   1. will limit expert evidence

      1. shall only be in relation to named expert / field ID'd in application

      2. may specify issues expert should address

      3. small claims and fast track: if given, permission usually for evidence from one expert on a particular issue (r35.4(3A))

      4. wrong to call more than 1 expert in field without very good reasons (JP Morgan Chase)

   2. will specify whether expert evidence will be adduced by reference to reports / orally

      1. small claims and fast track: court will NOT direct expert to attend hearing unless necessary in interests of justice (r35.5(2))

      2. multi-track: oral evidence = last resort (Daniels)

   3. if directions affect / require act to be done by expert party instructing must serve copy on expert (PD 35 para 8)

3. fees / costs (r35.4(4)

   1. court may limit what is recoverable from other side

• appointment of experts

  • before instruct, establish:

1. have appropriate expertise + experience

2. familiar with expert's duties

3. can produce report, deal with questions + have discussions within reasonable time and at proportionate cost

4. description of work sought

5. whether can attend trial

6. no potential conflict of interest

   • at outset, agree terms of appointment e.g. time for delivery of report, basis of charges, compliance with CPR

   • letter of instruction

     • provision

       • those instructing should give clear instructions:

         • basic info (names etc.); nature + extent of expertise required; purpose of advice; key issues; SoCs; what needs to be investigated; documents forming part of standard disclosure, outline programme + deadlines for each stage of expert's work

         • if proceedings NOT started - whether proceedings contemplated + if so whether expert only asked for advice

         • if proceedings started - hearing dates, name of court, claim no, track (protocol para 8.1)

       • if instructions NOT clear, experts should request clarification + may refuse to act till clarified (protocol para 8.2)

     • acceptance

       • expert should without delay:

         • confirm whether accept

         • if cannot accept for any reason + why (protocol para 9.1)

     • instructions NOT privileged against disclosure (r35.10(4))

     • incomplete / inaccurate instructions + XX of experts on contents

       • XX NOT allowed unless

         1. court satisfied are reasonable grounds to consider the expert's statement of instructions to be inaccurate / incomplete (r35.10(4)); +

         2. if satisfied court will allow XX if in interests of justice

     • disclosure of specific document re: instructions

       • court will NOT allow unless satisfied are reasonable grounds to consider the expert's statement of instructions to be inaccurate / incomplete (r35.10(4))

   • withdrawal of expert

     • may withdraw for substantial and significant reason

     • should discuss with those instructing + consider if better to ask court for directions instead

     • if withdraw must give formal written notice to those instructing (protocol para 10.1)

• expert's right to ask court for directions

  • expert may file written request to assist carry out function (r35.14(1))

  • procedure

1. expert must provide copy of request (r35.14(2))

   1. to party instructing at least 7 days BEFORE file request

   2. to all other parties at least 4 days BEFORE file request

2. expert files request

3. court gives directions

   1. may direct party be served with copy of directions (r35.14(3))

• if expert requires info in possession of - but NOT disclosed by - other party

  • expert should discuss with those instructing ask court to make direction

  • court's power to direct a party to provide information

    • if party has access to info NOT reasonably available to another party, court may direct party who has access to prepare + file document recording info AND serve copy on other party (r35.9)

      • to enable party on whom served to interpret + assess, document must include: details of facts, tests, experiments, assumptions underlying report (PD 35 para 4)

• expert's reports

  • requirement to be in writing

    • expert evidence is to be given in a written report (unless court directs otherwise) (r35.5(1))

  • form and content

    • report must

      • comply with PD 35 (r25.10(1))

        • should be addressed to court

        • give details of expert's qualifications

        • give details of published + unpublished material relied on in making

        • make clear which facts within expert's own knowledge

        • examination, measurements, test experiments: say who carried out, whether or not under expert's supervision + qualifications

        • if range of opinion: summarise range + give reason for expert's own opinion

        • contain summary of conclusions

        • if not able to give opinion without qualification, state qualification

        • be verified by statement of truth (PD 35 para 3.2(9))

          1. if person verifying can't read or sign, authorised signer must complete certificate

      • include important scientific papers (Balmoral v Borealis)

      • contain statement at end that expert understands + has complied with duty to court AND has complied with part 35, PD 35 + protocol (r35.10(2), PD 35 para 3.2(9))

      • keep facts + opinions SEPARATE: state facts on which opinions based + distinguish between assumed facts + those know true (protocol para 13.10)

      • if material facts disputed: express separate opinions on each hypothesis; should NOT prefer one unless think...