CIVIL LITIGATION

Chapter 12 – Expert evidence

❖ s 3(1) Civil Evidence Act 1972,where a person is called as a witness his opinion on any relevant
matter on which he is qualified to give expert evidence shall be admissible in evidence.
❖ Part 35 of the CPR governs the use of experts by parties only during court proceedings.
❖ expert defined by r 35.2 as a person who has been instructed to give or prepare expert evidence
for the purpose of the proceedings.
❖ The duty of an expert
➢ r 35.3 duty is to help the court on the matters within his expertise, and this duty overrides
any obligation to the person from whom he has received instructions or by whom he is paid.
➢ court will need to be satisfied that the expert was sufficiently aware of his responsibilities to
the court (Field v Leeds City Council [2000]).
➢ An expert who behaves improperly is likely to be reported to his governing body by the trial
judge at the end of the hearing, Pearce v Ove Arup Partnership [2001]
➢ a party may sue his own expert in negligence: see Jones v Kaney [2011] UKSC 13.
❖ The court’s power to restrict expert evidence
➢ R 35.1, expert evidence restricted to which is reasonably required to resolve proceedings.
➢ r 35.4, no party may call an expert or put in evidence an expert’s report without the court’s
permission.
➢ The options available to the court in giving directions on expert evidence include:
▪ (a) directing that no expert evidence is to be adduced at all, or no expert evidence of a
particular type or relating to a particular issue;
▪ (b) limiting the number of expert witnesses which each party may call, either generally
or in a given speciality;
▪ (c) directing that evidence is to be given by one or more experts chosen by agreement
between the parties or, where they cannot agree, chosen by such other manner as the
court may direct.
➢ The court will also decide whether it is necessary for experts to give oral evidence at trial.
➢ The court also has the power to limit the amount of the expert’s fees and expenses that the
party who wishes to rely on the expert may recover from any other party.
❖ Instructions to an expert witness
➢ r 35.10(4) states:
▪ The instructions referred to in paragraph (3) [the substance of all material instructions,
written or oral, on which the report is based] shall not be privileged against disclosure
but the court will not, in relation to those instructions—
• (a) order disclosure of any specific document; or
• (b) permit any questioning in court other than by the party who instructed the
expert, unless it is satisfied that there are reasonable grounds to consider the
statement of instructions given under paragraph (3) to be inaccurate or incomplete.
➢ Rule 35.10(4) is qualified by PD 35, para 3, cross-examination will be permitted only where it
is in the ‘interests of justice’.
➢ Arguably the instructions remain privileged from inspection unless and until the court makes
an order under the Rule.
 ➢ Such an order will be made only if there are reasonable grounds for believing that the
expert’s statement of instructions is inaccurate or incomplete: Lucas v Barking, Havering and
Redbridge Hospitals NHS Trust [2003].
➢ After reports have been exchanged it should be routine for a party to send a copy of the
other side’s report to their own expert for comment.
❖ Form of expert evidence
➢ Expert evidence is to be given in a written report unless the court directs otherwise
➢ Simultaneous mutual exchange on or before a set date.
➢ When first obtained, an expert’s report which has been prepared for the sole or dominant
purpose of the litigation is a privileged document.
➢ A copy must be given to the other party only if the party who commissioned it wishes to rely
on it at trial.
➢ If he decides not to rely on the report he does not have to allow the other side to inspect it.
➢ It is, however, disclosable in part 2 of the list of documents.
❖ Contents of the report
➢ Rule 35.10 and PD 35, paras 3.1 and 3.2:
▪ 3.1 An expert’s report should be addressed to the court and not to the party from whom
the expert has received his instructions.
▪ 3.2 An expert’s report must:
• (1) give details of the expert's qualifications;
• (2) give details of any literature or other material which the expert has relied on in
making the report;
• (3) contain a statement setting out the substance of all facts and instructions given
to the expert which are material to the opinions expressed in the report or upon
which those opinions are based;
• (4) make clear which of the facts stated in the report are within the expert's own
knowledge;
• (5) say who carried out any examination, measurement, test or experiment which
the expert has used for the report, give the qualifications of that person, and say
whether or not the test or experiment has been carried out under the expert's
supervision;
• (6) where there is a range of opinion on the matters dealt with in the report—
 (a) summarise the range of opinion, and
 (b) give reasons for his own opinion;
• (7) contain a summary of the conclusions reached;
• (8) if the expert is not able to give his opinion without qualification, state the
qualification; and
• (9) contain a statement that the expert:
 (a) understands their duty to the court, and has complied with that duty; and
 (b) is aware of the requirements of Part 35, this practice direction and the
Protocol for Instruction of Experts to give Evidence in Civil Claims.
➢ The report must also be supported by a statement of truth that states:
▪ I confirm that I have made clear which facts and matters referred to in this report are
within my 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.
➢ These formalities do not address the question of any potential or actual conflict of interest.
➢ Toth v Jarman [2006] EWCA Civ 1028, [2006], whilst the presence of a conflict of interest
does not automatically disqualify an expert, the key question is whether the expert’s opinion
is independent.
➢ Important that a party who wishes to call an expert with a potential conflict of interest
should disclose details of that conflict at as early a stage in the proceedings as possible.
➢ an expert should produce his curriculum vitae when he provides his report, and this should
give details of any employment or activity that raises a possible conflict of interest.
❖ Questions to the expert
➢ After an expert’s report has been disclosed, the party who did not instruct the expert may
put written questions to the expert about his report.
➢ Where a party sends a written question or questions direct to an expert, a copy of the
question(s) should, at the same time, be sent to the other party or parties.
➢ Such written questions:
▪ (a) may be put once only;
▪ (b) must be put within 28 days of service of the report;
▪ (c) must be to clarify the report, unless the court permits or the other party agrees to
allow questions for a different purpose.
➢ The answers will be treated as part of the expert’s report.
❖ Discussion between experts (r 35.12)
➢ Court direction
▪ The court will often direct that the parties’ experts should meet and have a without
prejudice discussion.
▪ Rule 35.12(4) confirms that the content of the discussion between the experts shall not
be referred to at the trial unless the parties agree.
▪ The purpose of the discussion is not for the experts to settle the case but to agree and
narrow the issues.
▪ PD 35, para 9.2 states that the experts should identify:
• (i) the extent of the agreement between them;
• (ii) the points of and short reasons for any disagreement;
• (iii) action, if any, which may be taken to resolve any outstanding points of
disagreement; and
• (iv) any further material issues not raised and the extent to which these issues are
agreed.
▪ Before the experts meet, the parties must discuss and if possible agree whether an
agenda is necessary, and if so attempt to agree one that helps the experts to focus on
the issues which need to be discussed.
▪ Agenda must not be in the form of leading questions or hostile in tone (PD 35, para 9.3).
▪ PD 35, para 9.5 provides that if legal representatives do attend, they should not
normally intervene in the discussion except to answer questions put to them by the
experts or to advise on the law; and
▪ the experts may if they so wish hold part of their discussions in the absence of the legal
representatives.
 ➢ Written joint statement
▪ Individual copies of the statements must be signed by the experts at the conclusion of
the discussion, or as soon thereafter as practicable, and in any event within 7 days.
▪ Copies of the statements must be provided to the parties no later than 14 days after
signing.
▪ PD35, para 9.7, experts must give their own opinions to assist the court and do not
require the authority of the parties to sign a joint statement.
▪ if an expert significantly alters an opinion as a result of the discussion, the joint
statement must include a note or an addendum by that expert, explaining the change of
opinion (PD 35, para 9.8).
▪ r 35.12(5) where the experts reach agreement on an issue during their discussions, the
agreement does not bind the parties unless the parties expressly agree to be bound by
the agreement.
➢ Changing experts
▪ Stallwood v David [2006], an agreement between experts does not bind the parties
unless they expressly agree to be bound by it (r 35.12(5)), so a modification of an
expert’s opinion also cannot bind the party who instructed him.
▪ The party will have to demonstrate a good reason to rely upon additional expert
evidence.
▪ This might include that his expert’s change of mind was based on unsound reasons or a
mistaken view of the facts, or that his expert acted outside his area of expertise or
instructions.

PROFESSIONAL NEGLIGENCE CASES: THE DEFENDANT’S OWN EVIDENCE

❖ professional negligence claims, defendant is allowed to give his own expert opinion on what he
did or did not do that is said to amount to negligence.
❖ There is no need for this to be in the format of a Part 35 report.
❖ The defendant’s witness statement will suffice.

ASSESSORS (r 35.15)

❖ In some cases of a technical nature, the court may seek the assistance of someone with technical
knowledge in the relevant field.
❖ has a judicial role in that he is instructed to assist the court.
❖ He is not an expert witness and cannot be cross-examined by any of the parties.
❖ His function is to ‘educate’ the judge and to enable the judge to reach a properly informed
decision.
❖ By r 35.15, the assessor shall take such part in the proceedings as the court may direct.
❖ court may direct the assessor to prepare a report and/or direct the assessor to attend the trial.
❖ Any report prepared by an assessor will be sent to the parties.