Evidence and disclosure - Expert evidence

Learning Outcomes

This article examines the rules governing the use of expert evidence in civil proceedings under the Civil Procedure Rules (CPR). It outlines the overriding duty of an expert witness, the court's powers to manage and restrict expert evidence, and the procedures for instructing experts, including single joint experts and discussions between experts. Understanding these rules is essential for advising clients and managing litigation effectively in compliance with the CPR, a key area tested in the SQE1 assessments.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures relating to expert evidence in civil litigation. This includes knowing when expert evidence is necessary, the duties experts owe, and how the court controls such evidence. Particular attention should be paid to:

  • The admissibility of expert opinion evidence.
  • The overriding duty of experts to the court (CPR 35.3).
  • The court’s power to restrict expert evidence (CPR 35.1 and 35.4).
  • The requirements for the content of an expert’s report (PD 35).
  • The procedure for instructing experts, including single joint experts (CPR 35.7).
  • The rules concerning discussions between experts (CPR 35.12).
  • The consequences of failing to disclose an expert's report (CPR 35.13).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. To whom does an expert witness owe their primary duty?
    1. The instructing party
    2. The court
    3. The client
    4. Both parties jointly
  2. Can a party rely on expert evidence without the court's permission?
    1. Yes, if the expert is instructed jointly.
    2. Yes, if the report is agreed by all parties.
    3. No, court permission is always required under CPR 35.4.
    4. Yes, in fast-track claims only.
  3. What is the main purpose of discussions between experts under CPR 35.12?
    1. To decide which expert's opinion is correct.
    2. To negotiate a settlement between the parties.
    3. To identify and narrow the issues on which they agree and disagree.
    4. To prepare cross-examination questions for the trial.

Introduction

In civil litigation, expert evidence plays a key role when the court requires specialised knowledge to understand technical issues or determine facts outside its ordinary experience. The use of expert evidence is strictly controlled by the court under CPR Part 35 and its associated Practice Directions. The overriding objective, ensuring cases are dealt with justly and at proportionate cost, heavily influences the court's approach to managing expert evidence. Solicitors must be proficient in managing these rules to effectively utilise or challenge expert testimony.

Key Term: expert witness
An individual instructed to provide or prepare expert evidence for court proceedings based on their specific knowledge, skill, or experience in a particular field.

The court's permission is mandatory before a party can call an expert or rely on an expert's report. This gatekeeping function highlights the court's active role in case management and ensures that expert evidence is restricted to that which is reasonably required to resolve the proceedings (CPR 35.1).

The Expert's Duty

The basis of expert evidence is the expert's duty to the court. CPR 35.3 explicitly states that an expert has an overriding duty to help the court on matters within their specialist knowledge. This duty takes precedence over any obligation to the person instructing or paying the expert.

Key Term: overriding duty
An expert's primary obligation under CPR 35.3 is to assist the court impartially on matters within their specialist knowledge, which prevails over any duty owed to the instructing party.

This requirement for impartiality and objectivity is fundamental. Experts must not act as advocates for the party instructing them. Their role is to provide unbiased opinions based on their specialised knowledge to assist the court in reaching a just decision. Failure to comply with this duty can lead to the court giving less weight to the expert's evidence or, in serious cases, excluding it altogether.

Court's Power to Restrict Expert Evidence

The court possesses significant powers under CPR 35.4 to control the use of expert evidence. A party cannot call an expert or rely on an expert's report without first obtaining the court's permission.

Applying for Permission

When seeking permission, a party must provide the court with:

  • An estimate of the costs associated with the proposed expert evidence.
  • Identification of the field in which expert evidence is required.
  • The specific issues the expert evidence will address.
  • The name of the proposed expert, where practicable.

The court’s permission, if granted, will be limited to the expert named or the field identified. The court may also specify the precise issues the expert should address, further refining the scope of the evidence. This ensures that expert evidence remains focused and relevant, contributing to efficient case management.

Worked Example 1.1

In a claim for damages arising from allegedly defective building work, the Claimant wishes to rely on evidence from a structural engineer. What must the Claimant include in their application to the court for permission to use this expert evidence?

Answer: The Claimant must identify the specialist field (structural engineering), the issues the expert will address (e.g., the cause of the defects, the necessary remedial works), the name of the proposed engineer if known, and an estimate of the expert's fees.

Instructing Experts

Instructions given to an expert are not privileged against disclosure, although the court will not normally order disclosure of instructions unless satisfied there are reasonable grounds to suspect they are inaccurate or incomplete (CPR 35.10(4) and PD 35 para 5). Transparency is key, and experts must state the substance of all material instructions in their report (CPR 35.10(3)).

Single Joint Experts

To save costs and encourage impartiality, the court may direct that evidence on a particular issue be given by a single expert, jointly instructed by two or more parties (CPR 35.7). This is common in lower-value or less complex cases, particularly on the fast track.

Key Term: single joint expert
An expert instructed to prepare a report for the court on behalf of two or more parties to the proceedings, as directed by the court or agreed by the parties (CPR 35.7).

If parties cannot agree on the identity of the single joint expert, the court may select the expert from a list provided by the parties or direct another method of selection. Instructions to a single joint expert should ideally be agreed jointly by the instructing parties. If agreement cannot be reached, the parties may give separate instructions, but should share these with the other instructing parties.

Worked Example 1.2

In a fast-track personal injury claim resulting from a road traffic accident, both parties need expert medical evidence on the prognosis for the Claimant's whiplash injury. What is the court likely to direct regarding expert evidence?

Answer: The court is likely to direct that a single joint medical expert (e.g., an orthopaedic consultant) be instructed by both parties to provide a report on prognosis. This promotes efficiency and proportionality, consistent with the fast track's objectives.

Revision Tip

Understand the factors the court considers when deciding whether to order a single joint expert (PD 35 para 7). These include proportionality (amount in dispute, complexity), whether instruction is likely to assist speedy/cost-effective resolution, and the nature of the issue (liability, causation, quantum).

Content of Expert Reports

An expert's report must comply with the requirements set out in CPR 35.10 and PD 35 para 3. Key requirements include:

  • Details of the expert's qualifications.
  • A statement setting out the substance of all material instructions.
  • Making clear which facts are within the expert's own knowledge.
  • Summarising the range of opinion (if applicable) and giving reasons for the expert's own opinion.
  • Containing a summary of the conclusions reached.
  • Including a statement that the expert understands and has complied with their duty to the court.
  • Being verified by a statement of truth.

Exam Warning

Failure to comply with the requirements for the content of an expert report can diminish its weight or even lead to inadmissibility. Ensure you know the key elements required by PD 35 para 3.

Discussions Between Experts

The court may direct experts instructed by different parties in the same field to discuss the expert issues (CPR 35.12). The purpose is to identify and narrow the issues, exploring areas of agreement and disagreement.

Experts should identify:

  • The extent of agreement between them.
  • Points of disagreement and reasons for it.
  • Possible actions to resolve outstanding disagreement.
  • Any further relevant issues not previously raised.

These discussions are typically without prejudice. Following the discussion, the experts are usually required to prepare a joint statement for the court outlining the points of agreement and disagreement. This statement does not bind the parties unless they expressly agree to be bound.

Consequences of Failure to Disclose

A party who fails to disclose an expert's report cannot use that report at trial or call the expert to give oral evidence unless the court gives permission (CPR 35.13). This highlights the importance of complying with court directions regarding the service of expert evidence.

Key Point Checklist

This article has covered the following key knowledge points:

  • Expert evidence is admissible to assist the court on matters requiring specialised knowledge (Civil Evidence Act 1972, s.3).
  • Experts have an overriding duty to the court, which supersedes any obligation to the instructing party (CPR 35.3).
  • Court permission is required to rely on expert evidence (CPR 35.4).
  • The court has powers to restrict expert evidence, including limiting the number of experts or directing the use of a single joint expert (CPR 35.1, 35.4, 35.7).
  • Expert reports must comply with specific content requirements (CPR 35.10, PD 35 para 3) and include a statement of truth.
  • Discussions between experts aim to narrow issues (CPR 35.12).
  • Failure to disclose an expert's report carries sanctions (CPR 35.13).

Key Terms and Concepts

  • expert witness
  • overriding duty
  • single joint expert
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