Chapter 13: Expert Evidence

• Expert


  A person who has been instructed to give or prepare expert evidence for the purpose of proceedings. Can be anyone with knowledge or experience of a particular field or discipline. A professional qualification is preferred but not essential. Unlike a lay witness, an expert can draw an inference from their conclusions about the facts of a case.
• The court strictly controls the role of experts as part of the overriding objective to deal with cases efficiently and at proportionate cost. An expert's role is restricted to what is reasonably required to resolve the proceedings.
• Experts can give opinion evidence

  • The opinion must depend on special knowledge, skill, or training that is not within the ordinary experience of the judge
  • The expert must demonstrate that they can be regarded as a true expert in the particular field of expertise
  • The expert must give evidence to a reasonable degree of certainty regarding their opinion, inference, or conclusions
  • The expert must be able to demonstrate the basis of their opinion and conclusions
• Duties of experts


  Experts must exercise independence, integrity, and impartiality. Their duty is to the court on matters of their expertise, overriding any obligation to the person from whom the expert received instructions and who is paying their fee.
• Directions regarding experts


  The procedural judge may decide no expert evidence is required, permit both parties to obtain their own experts, or order instruction of a single joint expert.
• Single joint expert


  • A property developer suing an architect for £500,000 damages in respect of cracks in building walls. The architect alleges the cracks were caused by subsidence unrelated to the design of the building. The court is likely to direct a report be prepared by a single joint expert.
• Own experts


  • A property developer sues a solicitor for failing to advise correctly about contaminated land. The solicitor wishes to call another conveyancing solicitor as an expert. It is unlikely the court will permit this, as the judge will likely have the necessary expertise to determine the relevant standard and practice.
• Substance of an expert's report

  It should be independent and uninfluenced, provide an objective unbiased opinion, state the facts on which the opinion is based, and make clear when an issue falls outside the author's field of experience or where there is insufficient evidence or research on which to base an opinion.
• Oral evidence


  Experts will not attend court unless the court directs that oral evidence may be given. The party requesting oral evidence must establish it is likely to have an impact, will assist the judge, there is a risk of injustice if not tested, and the costs are not disproportionate.
• If an expert changes their opinion at any time, they should notify their instructing solicitor promptly.
• Single joint expert


  The parties should try to agree the identity. If not, the court will choose from a list provided. The parties must jointly instruct the expert and the expert will forward responses simultaneously to both.
• Agreed expert vs single joint expert

  An agreed expert in a personal injury claim is nominated by the claimant's representative, and the defendant retains the right to instruct their own expert. A single joint expert is jointly instructed by the parties.
• Instructing experts


  The instructing party must serve a copy of the directions order on the expert. The instructions will reiterate the importance of the overriding objective and the requirement for the report to contain a statement of truth.
• Questions to an expert

  The parties can ask questions of the expert within 28 days of the expert sending the report. The questions should be proportionate, for clarification of the report.
• Discussion between experts


  If the court allows the parties to have their own experts, the directions order is likely to include the requirement that the parties arrange a 'without prejudice' meeting for the experts to identify issues, if any, on which the experts might come to an agreement and those issues on which they can (and cannot) agree.
• Expert evidence is tightly controlled under the CPR and is something which may feature in the SQ.