#16070 - Experts - BPC Civil Litigation

Expert Evidence

Remember: general exclusionary rule in relation to evidence of opinion expert evidence is an exception to this rule

Civil Evidence Act 1972, s3, Admissibility of expert opinion and certain expressions of non-expert opinion

1. Subject to any rules of court made in pursuance of [...]¹this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

2. It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant 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.

3. In this section“relevant matter”includes an issue in the proceedings in question.

Expert Evidence, CPR 35 (Experts & Assessors & PD 35)

Commentary, 35.0.5, expert evidence at trial

• Experts’ availability for trial

  • CA has made clear that attempts to introduce expert evidence late in the timetable; or the unavailability of the parties’ chosen experts for the trial window or fixed trial date will only very rarely be sufficient grounds to vary case management directions or trial dates.

  • Not acceptable for solicitor to instruct an expert shortly before trial without checking their availability for the trial date.

  • Court will need to know specifically why an expert is not available for the trial date before even considering whether the date might be rearranged.

• Judges’ analyses of expert evidence

  • CA has emphasised that a judge has to give reasons for preferring the evidence of one expert to another

  • So judge can prefer one expert’s evidence over another (especially if the preferred opinion is supported by other evidence); but reasons must be given for the preference. Should give reasoned and careful reasons.

  • failure to give reasons may be valid grounds for an appeal and for remitting the case back for a re-trial.

  • Judge should be invited to amplify the judgment before a decision is taken on the necessity of an appeal.

  • CA might interfere if the reasoning of judge in analysing the expert evidence does not support his conclusions.

  • Not sufficient for trial judge merely to say that one expert is highly reputable.

  • If there is clearly a mistake in the expert report, eg a figure in the conclusions that is clearly a mistaken/inconsistent with rest of report duty of trial judge to analyse the report.

  • A judge can prefer the evidence of a witness of fact to that of an expert witness; but should give reasons to justify their views:

• Composite expert reports

  • Rogers v Hoyle: claimants could rely on a published investigation report of the Air Accident Investigation Board, which contained statements of fact of witnesses, and opinions of in-house and 3^rd party investigators. Dismissed D’s arguments that the anonymity of the authors would make the evidence unsafe.

• Judges at site visits

  • Where a judge had discussions with parties’ expert surveyors at a site visit, no note was made; the experts did not give oral evidence at trial; judge relied on what had been said at the site visit in reaching conclusions. HELD: this was wrong, as there had been no opportunity for the parties to XX the experts in open court on the critical issue.

• Oral expert evidence in low value multi track trials

  • Judge was wrong not to allow oral liability expert evidence in a low value multi-track PI claim, when the experts in their joint statement continued to disagree about how the accident happened.

• Health and safety expertise

  • Kennedy v Cordia, SC: it was right to give permission for an expert in health and safety (even though health & safety was not a recognised area of scientific expertise), because the report did assist the court because the expert had direct experience of carrying out risk assessments and had conducted helpful research in how this particular risk could have been avoided.

  • So the ‘health and safety’ expert evidence was admissible.

35.1, Duty to Restrict Expert Evidence

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

PD35, para 1

• Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required.

• &, where possible, matters requiring expert evidence should be dealt with by only ONE expert.

• NB, experts and those instructing them should have regard to the Guidance for Instruction of Experts in Civil Claims 2014.

Commentary, 35.1.1, effect of rule

• Part of general power of court to control the evidence (r32.1) by giving directions as to:

  • (a) the issues on which it requires evidence;

  • (b) the nature of the evidence which it requires to decide those issues;

  • (c) the way in which the evidence is to be placed before the court.

• The general power to control evidence may be exercised to exclude evidence that would otherwise be admissible.

• R35.1: parties & court should seek to restrict excessive or inappropriate use of expert evidence. This is enforced by r35.4 below (court’s power to restrict expert evidence).

• Generally, Part 35 does NOT apply to cases in small claims track. But exceptions, which DO apply to small claims track:

  • r35.1 [duty to restrict expert evidence]

  • r35.3 [experts’ overriding duty to the court]

  • r35.7 [court power to direct that evidence be given by single joint expert]

  • r35.8

• When expert evidence is NOT necessary:

  • 35.1 seeks to reduce use of inappropriate use of experts to bolster cases

  • eg, expert evidence unnecessary re value of 2^nd hand car worth approx. 1,500. f

  • Where the issue is factual and obvious;

  • A small stress at work claim restricted expert evidence to one psychiatrist each.

  • In a claim re negligence re investment advice no need for an expert’s report on portfolio analysis that covered the same ground as a report on private banking already admitted.

  • No need for a report on derivatives written by lawyer, as the interpretation of commercial contracts was a question of law for the trial judge.

  • Re expert evidence in interest rate swap cases: the aspects & products of financial markets could be explained to trial judge by a witness of fact; expert evidence not required.

  • Where the issue purely factual NO expert evidence, eg refused D’s request for a computer science expert in a claim for malicious prosecution for possessing images of child abuse in a temporary internet folder; the issue was purely factual.

  • No expert re a factual matter: refused permission to rely on a lawyer specialising in art law on a contractual issue; was a factual matter.

• When expert evidence may be allowed:

  • In solicitors’ negligence claims expert evidence may be reasonably required to provide valuations of a loss of a chance.

  • Expert evidence appropriate re dispute re a contract to supply an IT system.

  • In a copyright dispute, re similarities between the design features of the two magazines.

  • Permitted expert evidence from an investment trader on liability and quantum in proceedings against a bank for inappropriate investment advice.

  • Burden on party seeking to adduce the expert evidence to show it will assist the judge.

• Expert evidence can only provide guidelines, within which the facts fell to be decided by a judge (in a case of likely speed of a coach in a RTA).

• If the parties instruct experts without waiting for the court to give permission they are at risk as to recovering the costs if the court subsequently decides that expert evidence is not necessary.

  • A C who wins the case may fail to recover the cost of instructing an expert, if court decides that expert evidence is unnecessary.

• How to approach case management decisions on expert evidence, whether to admit expert evidence: (British Airways v Spencer):

  • (1) is expert evidence necessary to decide an issue? if Yes, allow it.

  • (2) if not, will it (still) assist the judge in determining an issue?

  • If yes then consider:

    • value of claim and proportionality;

    • cost of the evidence & who will pay;

    • whether any delay will be caused or trial date lost.

• Expert evidence in asylum seeker JR claims (HK v SSHD):

  • A report from Amnesty International had been served; judge reluctantly admitted the evidence, because this was a test case and report was from a respected NGO.

  • But the weight it would attach would reflect the circumstances: it was the work of more than one individual; and the signatory would not agree to be XXed.

  • Part 35 DOES apply to Judicial Review, and the fact that Tribunals might allow into evidence expert reports without permission or disclosure to the other party does not mean that courts should do the same.

35.2, Interpretations and definitions

• Reference to an “Expert” in this Part = a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.

• Reference to a “single joint expert” = an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the claimant) to the proceedings.

35.3, Experts: overriding duty to the court

• (1) it is the duty of experts to help the court on matters within their expertise.

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

Commentary, 35.3.3, Duties & Responsibilities of experts [repeated in PD35, para 2, see below,...