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.
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.
