Expert Evidence
Disclose -> meaning to allow inspection of
Remember: general exclusionary rule in relation to evidence of opinion
expert evidence is an exception to this rule
Ultimate issue rule – Commentary 35.0.4
Civil Evidence Act 1972, s3, Admissibility of expert opinion and certain
expressions of non-expert opinion
3.— Admissibility of expert opinion and certain expressions of non-expert opinion
(exceptions to general exclusion of evidence of opinion).
(1) Subject to any rules of court made in pursuance of [...] 1 this Act, where a person is
called as a witness in any civil proceedings, his opinion on any relevant matter on
which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil
proceedings, a statement of opinion by him on any relevant matter on which he is
not qualified to give expert evidence, if made as a way of conveying relevant FACTS
personally perceived by him, is admissible as evidence of what he perceived.
(3) In this section “relevant matter” includes an issue in the proceedings in question.
Expert Evidence, CPR 35 (Experts & Assessors & PD 35)
Commentary, 35.0.5, expert evidence at trial
Experts’ availability for trial
o CA has made clear that attempts to introduce expert evidence late in
the timetable; or the unavailability of the parties’ chosen experts for
the trial window or fixed trial date will only very rarely be
sufficient grounds to vary case management directions or trial dates.
o Not acceptable for solicitor to instruct an expert shortly before trial
without checking their availability for the trial date.
o Court will need to know specifically why an expert is not available for
the trial date before even considering whether the date might be
rearranged.
Judges’ analyses of expert evidence
, o CA has emphasised that a judge has to give reasons for preferring the
evidence of one expert to another
o So judge can prefer one expert’s evidence over another (especially if
the preferred opinion is supported by other evidence); but reasons
must be given for the preference. Should give reasoned and careful
reasons.
o failure to give reasons may be valid grounds for an appeal and for
remitting the case back for a re-trial.
o Judge should be invited to amplify the judgment before a decision is
taken on the necessity of an appeal.
o CA might interfere if the reasoning of judge in analysing the expert
evidence does not support his conclusions.
o Not sufficient for trial judge merely to say that one expert is highly
reputable.
o If there is clearly a mistake in the expert report, eg a figure in the
conclusions that is clearly a mistaken/inconsistent with rest of report
duty of trial judge to analyse the report.
o A judge can prefer the evidence of a witness of fact to that of an
expert witness; but should give reasons to justify their views:
Composite expert reports
o Rogers v Hoyle: claimants could rely on a published investigation
report of the Air Accident Investigation Board, which contained
statements of fact of witnesses, and opinions of in-house and 3 rd party
investigators. Dismissed D’s arguments that the anonymity of the
authors would make the evidence unsafe.
Judges at site visits
o Where a judge had discussions with parties’ expert surveyors at a
site visit, no note was made; the experts did not give oral evidence at
trial; judge relied on what had been said at the site visit in reaching
conclusions. HELD: this was wrong, as there had been no opportunity
for the parties to XX the experts in open court on the critical issue.
Oral expert evidence in low value multi track trials
o Judge was wrong not to allow oral liability expert evidence in a low
value multi-track PI claim, when the experts in their joint statement
continued to disagree about how the accident happened.
Health and safety expertise
o Kennedy v Cordia, SC: it was right to give permission for an expert in
health and safety (even though health & safety was not a recognised
area of scientific expertise), because the report did assist the court
because the expert had direct experience of carrying out risk
Disclose -> meaning to allow inspection of
Remember: general exclusionary rule in relation to evidence of opinion
expert evidence is an exception to this rule
Ultimate issue rule – Commentary 35.0.4
Civil Evidence Act 1972, s3, Admissibility of expert opinion and certain
expressions of non-expert opinion
3.— Admissibility of expert opinion and certain expressions of non-expert opinion
(exceptions to general exclusion of evidence of opinion).
(1) Subject to any rules of court made in pursuance of [...] 1 this Act, where a person is
called as a witness in any civil proceedings, his opinion on any relevant matter on
which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil
proceedings, a statement of opinion by him on any relevant matter on which he is
not qualified to give expert evidence, if made as a way of conveying relevant FACTS
personally perceived by him, is admissible as evidence of what he perceived.
(3) In this section “relevant matter” includes an issue in the proceedings in question.
Expert Evidence, CPR 35 (Experts & Assessors & PD 35)
Commentary, 35.0.5, expert evidence at trial
Experts’ availability for trial
o CA has made clear that attempts to introduce expert evidence late in
the timetable; or the unavailability of the parties’ chosen experts for
the trial window or fixed trial date will only very rarely be
sufficient grounds to vary case management directions or trial dates.
o Not acceptable for solicitor to instruct an expert shortly before trial
without checking their availability for the trial date.
o Court will need to know specifically why an expert is not available for
the trial date before even considering whether the date might be
rearranged.
Judges’ analyses of expert evidence
, o CA has emphasised that a judge has to give reasons for preferring the
evidence of one expert to another
o So judge can prefer one expert’s evidence over another (especially if
the preferred opinion is supported by other evidence); but reasons
must be given for the preference. Should give reasoned and careful
reasons.
o failure to give reasons may be valid grounds for an appeal and for
remitting the case back for a re-trial.
o Judge should be invited to amplify the judgment before a decision is
taken on the necessity of an appeal.
o CA might interfere if the reasoning of judge in analysing the expert
evidence does not support his conclusions.
o Not sufficient for trial judge merely to say that one expert is highly
reputable.
o If there is clearly a mistake in the expert report, eg a figure in the
conclusions that is clearly a mistaken/inconsistent with rest of report
duty of trial judge to analyse the report.
o A judge can prefer the evidence of a witness of fact to that of an
expert witness; but should give reasons to justify their views:
Composite expert reports
o Rogers v Hoyle: claimants could rely on a published investigation
report of the Air Accident Investigation Board, which contained
statements of fact of witnesses, and opinions of in-house and 3 rd party
investigators. Dismissed D’s arguments that the anonymity of the
authors would make the evidence unsafe.
Judges at site visits
o Where a judge had discussions with parties’ expert surveyors at a
site visit, no note was made; the experts did not give oral evidence at
trial; judge relied on what had been said at the site visit in reaching
conclusions. HELD: this was wrong, as there had been no opportunity
for the parties to XX the experts in open court on the critical issue.
Oral expert evidence in low value multi track trials
o Judge was wrong not to allow oral liability expert evidence in a low
value multi-track PI claim, when the experts in their joint statement
continued to disagree about how the accident happened.
Health and safety expertise
o Kennedy v Cordia, SC: it was right to give permission for an expert in
health and safety (even though health & safety was not a recognised
area of scientific expertise), because the report did assist the court
because the expert had direct experience of carrying out risk
