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#10156 - Evidence Expert - Civil Litigation

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Define

  • An expert is a person who has been instructed to give expert evidence for proceedings (r.35.2)

  • An expert’s opinion on a relevant matter on which he is qualified to give evidence is admissible (s.3(1) CEA) apply O5.1, O4 and IB5.5 (solicitor mustn’t mislead court with untrue evidence)

  • An expert cannot be instructed under a CFA
Admissibility

  1. It must be relevant and within the expertise of the expert

  2. Must be presented to court in the correct format (r.35 and PD 35)

  3. Permission was given by the court (r.35.4) which will limit to the evidence reasonable to resolve proceedings (r.35.1)

  • Conflict does not automatically disqualify the expert (Toth), but it must be disclosed ASAP
Restriction

The court can, at it’s discretion:

  • Declare whether expert evidence is allowed at all

  • Limit the number of experts used

  • Preclude oral evidence in favour of solely written reports

  • Direct the parties to use a single joint expert

  • Limit the amount of expert fees that a party can seek to recover
Contents

  • r.35.3: the expert’s duty is to help the court not the instructing party

  • Where there is reference to the Protocol, see the tabbed sheet for more detail

  • r.35.10: is must comply with PD 35 (Note; see separate sheet for more detail on Protocol):

    • Para 3.1: addressed to the court not the instructing party

    • Para 3.2: it must

  1. Give details of the expert’s qualifications (Protocol 13.6)

  2. Give details of literature or other material which has been relied upon in making the report (Protocol 13.8)

  3. Contain a statement setting out the substance of facts and instructions (Protocol 13.15)

  4. Make clear what is within the expert’s knowledge and what is the expert’s opinion (Protocol 13.9, 13.10 and 13.11)

  5. Say who carried out any experiment that the expert has used for the report, their qualifications and methodology used (Protocol 13.7(a) and (b))

  6. Where there is a range of opinion:

  1. Summarise the range of opinion and qualifications (Protocol 13.12)

  2. Give reasons for the expert’s own opinion (Protocol 13.13)

  1. Contain a summary of the conclusions reached (Protocol 13.14)

  2. State the qualification of an opinion

  3. Contain a statement that the expert:

  1. Understands and has complied with their duty to the court

  2. Aware of requirements of Part 35, PD and protocol of expert evidence

  • Para 3.3: must contain a statement of truth in the following form: “I confirm that I have made clear which facts and matter referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer”
Defective Opponent’s Report
Possible Action Pros and Cons
Do nothing

  • This is not acting in the best interests of your client
Do nothing ‘til trial then ask judge to exclude the evidence for non-compliance

  • This would annoy the judge – why not say earlier?

  • Breach of r.1.1(2)(a) & r.1.3 (duty to assist court in furthering OO).

  • Should point out errors in others’ report.

  • Risk of adverse costs order under r.44.5(3)
Inform C directly that his solicitors have been negligent

  • IB11.4: don’t contact other side directly (unless they don’t have legal representation) + IB11.1
Inform the expert that you will report him to his governing body

  • This is the judge’s job (Meadows v GMC)
Inform C’s solicitor: defects must be corrected and permission obtained to rely on the amended report

  • This is the best response
Interim application to exclude the C’s expert evidence

  • Disproportionate response (use as a back-up)

  • Occasions delay and expense

  • Possible adverse costs consequences.

Asking the Other Expert Questions

r.35.6

  • Written questions within 28 days of the service of the report directly to the expert (1)(a) & (2)(b)

  • Must simultaneously send copy of the questions to the instructing party

  • Must be to clarify the report (unless agreed otherwise) ((2)(c))

  • May submit questions only once ((2)(a))

  • Answers will be treated as part of the report, so should be given in writing ((3))
Disclosure
Disclosure of Instructions Disclosure of Report

  • r.35.10(4) instructions are privileged from inspection unless the court makes an order under the rules

  • This will only be made if there are reasonable grounds for believing statement of instruction is inaccurate

  • If want to rely on it, then you must disclose it to other parties as per directions

  • When first obtained, report is privileged if prepared for the dominant purpose of litigation

  • If don’t rely on it, must put it in Part 2 of the disclosure list

Discussions Between Experts

r.35.12
General

  • Without prejudice discussions to narrow down the issues

  • Contents may be referred to at trial only by mutual consent (r.35.12(4))

Pre-meeting

(para 9.3)

  • Parties should discuss and agree on an agenda

  • Agenda must not be leading questions or in a hostile tone

At meeting

(para 9.2)

  • The experts should identify:

    • The extent to which they agree

    • Points of disagreement and reasons for it

    • Actions that could be taken to resolve any disagreement

  • Parties and legal representatives should not attend unless by mutual consent or the court gives such permission (para 9.5)

  • If they do attend, the should not intervene in the discussion
Post-meeting

  • Experts prepare a written joint statement on the issues raised

  • Copies signed by the experts within 7 days (para 9.7)

  • If an expert changes his opinion as a result of the discussion, a note must be included by that expert giving his reasons for doing so (para 9.8)

  • Statements sent to parties no later than 14 days after signing

  • The statement does not bind the parties unless the expressly agree to be bound by it (r.35.12(5) & Smallwood)

Is a Single Joint Expert (SJE) Appropriate?

What type of Claim?
Fast Track Multi Track
SJE will be used unless there is good reason not to (PD 38 para 3.9) SJE is less likely. SJE may be ordered on quantum, even if they have called their own on liability

Factors Considered

PD35 para 7

  • Whether it is proportionate to have separate experts, with reference to:

    • Amount in dispute

    • Importance of matter in dispute to the parties

    • Complexity

  • Whether SJE is likely to assist the parties and the court to resolve issues more quickly

  • Whether SJE is a more cost-effective solution

  • Whether experts are called on liability, causation or quantum

  • Whether there is likely to be a range of expert opinion

  • Whether a party has already instructed an expert on an issue in question and whether they complied with CPR and pre-action protocols

  • Whether it would be impractical to hold an SJE conference (can’t get everyone there)

  • Whether a claim to privilege makes SJE inappropriate
Possible Problems

Should the Client Commission their Own Expert in Advance?

  • If the expert is a friend or connection, this won’t look good at trial

  • Preferable to appoint an independent expert for the sake of appearances

  • If an SJE is ordered, the time and cost of appointing a separate one is wasted

  • Yet, a preliminary opinion may be useful in deciding whether to proceed to trial

Should the Client Propose/Agree to an SJE?

  • Disadvantage is, that if the SJE doesn’t find in favour of the client’s side, you cannot conveniently dump that report and rely on another

  • Court’s permission must be obtained to change experts

Client is Dissatisfied with the SJE Report (Daniels v Walker)

  • The client should submit questions first then, if still dissatisfied, apply to court for permission to call another expert

  • A new expert will be granted where it would be unjust to refuse, bearing in mind the overriding objective

  • If the dissatisfied party already has their own expert report, the court should not grant permission to use it at trial unless the two experts have met to resolve their differences

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