15. CIVIL LITIGATION 2023-2024 EXPERTS
READING KEY POINTS
REFERENCE
Summary The current state of the law may be summarised by the following principles.
(1) It is always desirable that an expert should have no actual or apparent interest in the
outcome of the proceedings.
(2) The existence of such an interest, whether as an employee of one of the parties or
otherwise, does not automatically render the evidence of the proposed expert inadmissible.
It is the nature and extent of the interest or connection which matters, not the mere fact of
the interest or connection.
(3) Where the expert has an interest of one kind or another in the outcome of the case, the
question of whether he should be permitted to give evidence should be determined as soon
as possible in the course of case management.
(4) The decision as to whether an expert should be permitted to give evidence in such
circumstances is a matter of fact and degree. The test of apparent bias is not relevant to
the question of whether an expert witness should be permitted to give evidence.
(5) The questions which have to be determined are whether:
(a) the person has relevant expertise; and
(b) he is aware of his primary duty to the court if they give expert evidence, and are
willing and able, despite the interest or connection with the litigation or a party
thereto, to carry out that duty.
(6) The judge will have to weigh the alternative choices open if the expert’s evidence is
excluded, having regard to the overriding objective of the Civil Procedure Rules.
(7) If the expert has an interest which is not sufficient to preclude him from giving evidence the
interest may nevertheless affect the weight of his evidence.
Adducing ● Expert evidence constitutes an exception to the general rule that only evidence of fact may
Expert be adduced. There are four considerations which govern the admissibility of expert
Evidence evidence:
○ Whether it will assist the court in its task;
○ Whether the expert has the necessary knowledge and experience;
○ Whether the expert is impartial in their presentation and assessment of the
evidence; and
○ Whether there is a reliable body of knowledge or experience to underpin the
expert’s evidence.
● It is not the function of an expert witness to give their opinion on issues of law.
● If a witness makes a statement on any 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.
General Duty to Restrict Expert Evidence:
Requirements ● Expert evidence shall be restricted to that which is reasonably required to resolve the
for Expert proceedings.
Evidence ○ If a claim is on the small claims track or the fast track, the court will not direct an
expert to attend a hearing unless it is necessary to do so in the interests of justice.
● Expert evidence may only be adduced with the court’s permission.
○ When parties apply for permission they must provide an estimate of the costs of the
proposed expert and identify:
1
, ■ The field in which expert evidence is required and the issues which the
expert evidence will address; and
■ Where practicable, the name of the proposed expert.
○ Permission is related to the expert identified.
● It may give directions as to the contents and the way in which the evidence is placed before
the courts. Two elements to consider:
○ Is the evidence admissible; whether there is a recognised body of expertise
governed by recognised standards and rules of conduct relevant to the question
which the court has to decide.
○ Is the evidence reasonably required to resolve the proceedings.
■ Where it is merely helpful, it must be excluded.
■ If the evidence would be of assistance, but not necessary, then the court
would be able to determine the issue without it.
● Expert evidence should be given in a written report unless the court directs otherwise.
● A party who fails to disclose an expert’s report may not use the report at the trial or call the
expert to give evidence orally unless the court gives permission.
Court’s permission:
● Although the court’s permission is not generally required to instruct an expert, the court’s
permission is required before an expert’s report can be relied upon or an expert can be
called to give oral evidence.
● Permission may be given in a case management direction or in response to an application
to the court. Cannot be circumvented by including evidence within a witness statement or
as annex to one.
● Permission must be sought for foreign law expert evidence.
● If the parties wish to rely on the expert evidence from previous proceedings they can do so
as hearsay evidence without permission.
Guidance:
● The Court of Appeal has made it clear that attempts to introduce expert evidence late in the
timetable, or the unavailability of the parties’ chosen experts for the trial will only very rarely
be sufficient to vary case management directions or trial dates or grant an adjournment.
They should make sure the expert is available, or instruct a new one.
● A judge is entitled to prefer a witness of fact to that of an expert witness. Where a judge
prefers the evidence of a witness of fact over that of an expert witness, reasons justifying
the preference should be given. The judge must also give sufficient reasons for preferring
the evidence of one expert witness over another. Failure to do so results in valid grounds
for an appeal and for remitting the case for a re-trial.
● Experts may provide evidence on the “ultimate issue” in proceedings, which is to say the
matter to be decided by the court. They may not, however, determine such issues; this is
for the court.
● In small claims, expert evidence is unnecessary in the ordinary case, particularly in respect
of second hand car valuations because published and reputable valuation guides are
sufficient.
● Where the issues in dispute are purely factual permission for an expert will be refused.
● The issue on which expert evidence is sought needs to be precisely identified, however, in
some cases this may require expert assistance to help frame precisely which issues and in
what area the expert can provide expert.
● A balance needs to be struck and the proportionality of admission assessed. The court will
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READING KEY POINTS
REFERENCE
Summary The current state of the law may be summarised by the following principles.
(1) It is always desirable that an expert should have no actual or apparent interest in the
outcome of the proceedings.
(2) The existence of such an interest, whether as an employee of one of the parties or
otherwise, does not automatically render the evidence of the proposed expert inadmissible.
It is the nature and extent of the interest or connection which matters, not the mere fact of
the interest or connection.
(3) Where the expert has an interest of one kind or another in the outcome of the case, the
question of whether he should be permitted to give evidence should be determined as soon
as possible in the course of case management.
(4) The decision as to whether an expert should be permitted to give evidence in such
circumstances is a matter of fact and degree. The test of apparent bias is not relevant to
the question of whether an expert witness should be permitted to give evidence.
(5) The questions which have to be determined are whether:
(a) the person has relevant expertise; and
(b) he is aware of his primary duty to the court if they give expert evidence, and are
willing and able, despite the interest or connection with the litigation or a party
thereto, to carry out that duty.
(6) The judge will have to weigh the alternative choices open if the expert’s evidence is
excluded, having regard to the overriding objective of the Civil Procedure Rules.
(7) If the expert has an interest which is not sufficient to preclude him from giving evidence the
interest may nevertheless affect the weight of his evidence.
Adducing ● Expert evidence constitutes an exception to the general rule that only evidence of fact may
Expert be adduced. There are four considerations which govern the admissibility of expert
Evidence evidence:
○ Whether it will assist the court in its task;
○ Whether the expert has the necessary knowledge and experience;
○ Whether the expert is impartial in their presentation and assessment of the
evidence; and
○ Whether there is a reliable body of knowledge or experience to underpin the
expert’s evidence.
● It is not the function of an expert witness to give their opinion on issues of law.
● If a witness makes a statement on any 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.
General Duty to Restrict Expert Evidence:
Requirements ● Expert evidence shall be restricted to that which is reasonably required to resolve the
for Expert proceedings.
Evidence ○ If a claim is on the small claims track or the fast track, the court will not direct an
expert to attend a hearing unless it is necessary to do so in the interests of justice.
● Expert evidence may only be adduced with the court’s permission.
○ When parties apply for permission they must provide an estimate of the costs of the
proposed expert and identify:
1
, ■ The field in which expert evidence is required and the issues which the
expert evidence will address; and
■ Where practicable, the name of the proposed expert.
○ Permission is related to the expert identified.
● It may give directions as to the contents and the way in which the evidence is placed before
the courts. Two elements to consider:
○ Is the evidence admissible; whether there is a recognised body of expertise
governed by recognised standards and rules of conduct relevant to the question
which the court has to decide.
○ Is the evidence reasonably required to resolve the proceedings.
■ Where it is merely helpful, it must be excluded.
■ If the evidence would be of assistance, but not necessary, then the court
would be able to determine the issue without it.
● Expert evidence should be given in a written report unless the court directs otherwise.
● A party who fails to disclose an expert’s report may not use the report at the trial or call the
expert to give evidence orally unless the court gives permission.
Court’s permission:
● Although the court’s permission is not generally required to instruct an expert, the court’s
permission is required before an expert’s report can be relied upon or an expert can be
called to give oral evidence.
● Permission may be given in a case management direction or in response to an application
to the court. Cannot be circumvented by including evidence within a witness statement or
as annex to one.
● Permission must be sought for foreign law expert evidence.
● If the parties wish to rely on the expert evidence from previous proceedings they can do so
as hearsay evidence without permission.
Guidance:
● The Court of Appeal has made it clear that attempts to introduce expert evidence late in the
timetable, or the unavailability of the parties’ chosen experts for the trial will only very rarely
be sufficient to vary case management directions or trial dates or grant an adjournment.
They should make sure the expert is available, or instruct a new one.
● A judge is entitled to prefer a witness of fact to that of an expert witness. Where a judge
prefers the evidence of a witness of fact over that of an expert witness, reasons justifying
the preference should be given. The judge must also give sufficient reasons for preferring
the evidence of one expert witness over another. Failure to do so results in valid grounds
for an appeal and for remitting the case for a re-trial.
● Experts may provide evidence on the “ultimate issue” in proceedings, which is to say the
matter to be decided by the court. They may not, however, determine such issues; this is
for the court.
● In small claims, expert evidence is unnecessary in the ordinary case, particularly in respect
of second hand car valuations because published and reputable valuation guides are
sufficient.
● Where the issues in dispute are purely factual permission for an expert will be refused.
● The issue on which expert evidence is sought needs to be precisely identified, however, in
some cases this may require expert assistance to help frame precisely which issues and in
what area the expert can provide expert.
● A balance needs to be struck and the proportionality of admission assessed. The court will
2
