What do the courts recognise as expert evidence?
Any scientific, technical, medical or other specialist information expressed in the form of an opinion, the substance of which is likely to be outside the experience and knowledge of the court. This opinion must concern matters relevant to the issues in dispute in the case. The opinion must be limited to matters that fall within the experts’ competence, ie within his special expertise.1The opinion should not be limited to a mere conclusion arising out of the facts of the case since these are matters that should be left for the court or trial judge to determine; it is for the Court to adjudicate upon issues of fact not an expert.2
Under the Civil Procedure Rules 1998, the parties have a positive duty to restrict the use of expert evidence to that reasonably required to resolve the proceedings. This duty is likely to be interpreted restrictively by the courts.
The duty of the expert
Part 35 of the Civil Procedure Rules 1998, expressly states that an expert’s “overriding duty” is to “help the court on the matters within his expertise” 3An expert should be independent, giving an objective and unbiased opinion concerning matters within his/her expertise.
Facts or assumptions upon which the opinion are based should be stated together with material facts which could detract from the concluded opinion. The expert should make it clear if a question or issue falls outside his/her expertise or if there is insufficient data available to him, in which case he should indicate that his opinion is provisional.
If after exchange of reports an expert changes his mind on a material matter, this should be communicated to the opponent without delay.4
The role of the expert
Up to and until the implementation of the new Civil Procedure Rules on 26 April 1999, an expert had a dual role;“.... First, to advance the case of the party calling him, so far as it can properly be advanced on the basis of information available to the expert in the professional exercise of his skill and experience; and, secondly, to assist the court, which does not possess the relevant skill and experience, in determining where the truth lies....”5After 26 April an expert’s overriding duty will be to the court, to whom he should address his reports. The duty is to help the court on the matters within his expertise.6 Partisan opinions are no longer acceptable.
Experts should be aware that covering letters which qualify or otherwise effect the substance of an accompanying report must be disclosed to the opponents, if the main report is served7.
An experts right to seek court directions
In order to assist experts in their new role, they are entitled to write to the court direct, to ask for directions to help them carry out their function as an expert.8The court’s role
Under the Civil Procedure Rules, expert evidence is subject to the complete control of the court, which has a discretion, with or without agreement of the parties, to appoint an expert to report or to give evidence.No party may call an expert or adduce in evidence an expert’s report without the court’s permission. When he does so, he must not only indicate the specialism sought but also name the individual expert concerned.9 Consultants can expect that potential instructing solicitors may wish to seek an initial oral opinion before formally confirming their instructions in writing in certain claims. The underlying purpose of the court will be to restrict , where possible, the use of expert evidence. The court even has a power to limit the extent to which an experts fee will be recoverable.10
The court can order that evidence on a particular issue be given by a single expert. Where the parties cannot agree whom to jointly instruct, the court can select an expert.11 The court can set a limit on the level of the experts’ fees and expenses.
One of the most significant changes introduced by the Civil Procedure Rules 1998 is that in the vast majority of personal injury claims (i.e. those which fall below a value of £15,000) the court will not allow experts to give evidence in court unless it is necessary to do so in the interests of justice.12 The court will rely instead upon their written reports at the hearing of the claim. The court will try to limit the use of experts at court where possible.
Claims that do not exceed £15,000 will be assigned to “the Fast Track”, this will be an accelerated claims procedure closely managed by the court. On assigning the claim to the “Fast Track”, the court will set a timetable for the parties of between 20–30 weeks leading to a hearing date. The timetable will include directions for limited discovery of core documents, exchange of skeletal witness statements and expert reports. Expert reports will directed to be exchanged within 10 weeks of the Order.
Any party seeking to rely on expert evidence will have to conform to this timetable, which will be rigidly enforced.
Without prejudice meetings of experts
The rules of court empower the court to order a “without prejudice” meeting of experts, before or after disclosure of their reports, as the court may specify, in order to identify what facts and matters are agreed and which are in issue. Where such a meeting is directed, the experts are obliged to prepare a joint statement indicating those parts of their evidence which they are and those on which they are not in agreement, usually giving reasons for their disagreement.13In the event that experts are directed by the court to undertake a without prejudice meeting, it will be unprofessional conduct for an expert giving or accepting such instructions not to reach agreement where he can. If experts are not able to reach agreement on an issue they will be obliged to specify their reasons for being unable to do so. It is possible to conduct a without prejudice meeting by telephone.
Reports
The form and content of an expert medical report should conform with the criteria agreed between the Law Society and the BMA.An expert report should be addressed to the court as opposed to the Instructing Solicitor.
An expert report must:
give details of the expert’s qualifications,give details of any literature or other material which the expert has relied on in making the report,
say who carried out any test or experiment which the expert has used for the report and whether or not the test or experiment has been carried out under the expert’s supervision,
give the qualifications of the person who carried out any such test or experiment, and
where there is a range of opinion on the matters dealt with in the report -
summarise the range of opinion, and
give reasons for his own opinion,
contain a summary of the conclusions reached,
contact a statement that the expert understands his duty to the court and has complied with that duty, and
contain a statement setting out the substance of all material instructions (whether written or oral). The statement should summarise the facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based.
An expert’s report must also be verified by a statement of truth. The wording of the statement is as follows:“I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct”.14
A party’s instructions to an expert will no longer be automatically privileged from disclosure.15
Written questions
A party can put written questions to an expert instructed by another party once, without leave of the court, provided they are made within 28 days of service of the report. The questions are limited to clarifying the issues contained in the report; cross-examination is not permitted except with out leave of the court or the consent of the other party. The experts answer will then be treated as part of his report.16 Although no time scale is set for the answer, it is recommended that experts plan to provide them within no more than 14 days, unless there is good reason for a longer period.If an opponent sends a letter raising questions, then the expert should annex a copy of that letter to his reply and ensure that the other party receives copies of both.
Code of practice
The Lord Chancellor’s Department is preparing a code of practice for the guidance of experts and the legal profession.Pre action protocol
The new regime includes a protocol that should govern the parties conduct even before proceedings have commenced. This protocol requires any prospective party intending to instruct an expert to give the opponent a list of the names of one or more experts in the relevant speciality whom he considers suitable to instruct, before instructing him. The opponent then has 14 days in which to raise an objection to one or more of the experts listed. The first party may then instruct a mutually acceptable expert. Alternatively, if no agreement is reached, the opponent can instruct an expert of its own choice; leaving the admissibility of that report to be decided by the court.If the opponent does not object to a nominated expert, he/she cannot rely on their own expert’s evidence within that speciality unless:
the first party agrees
the court so directs, or
the first party’s expert report has been amended and the first party is not prepared to disclose the original report.
Experts can expect to be consulted on the suitability or otherwise of an opponent’s proposed consultant.
Either party will be able to send to the joint expert written questions on the report, relevant to the issues. The first party’s solicitors will relay these onwards. The expert should then send the answer to these questions separately and directly to each party.
The importance of keeping to the court timetable
Once proceedings have commenced, time will be of the essence. The former laissez faire attitude of the court to the conduct of the proceedings and the time scale for exchange of evidence will be abandoned in favour of a strictly controlled approach. This is particularly true of claims allocated by the court to the “fast track”, for most personal injury claims worth between £1,000 and £15,000. It will no longer be open to the parties to extend the court’s timetable for key dates by agreement between themselves.All experts should be aware that:
Failure by one party to serve upon the opponent their expert evidence within the 10 week period ordered by the court, in a fast track claim, may dis-entitle that party from relying on that evidence.
For a certain dates (ie a hearing dates), extensions of time will be granted by the court only in exceptional circumstances.
Failure by a party to disclose an expert’s report will preclude that party from relying on that expert or his report at trial, without the court’s permission.17
Accordingly, once proceedings have commenced, there will be a very real urgency attached to the preparation and exchange of expert evidence.
The need for speed
It is possible that a defendant may only have about 6 months from the first intimation of a claim by the claimant to the date set by the court for exchange of expert evidence (in a routine fast-track claim). This could occur even where an appropriate response has been made to the formal letter of claim under the pre action protocol.It is probable that under the new regime the maximum acceptable waiting time appointments will be 3 months, for the majority of claims. In urgent cases reports may be needed in weeks rather than months.
Further information, contact:
The Law SocietyThe Academy of Experts
The Lord Chancellor’s Department Website: www.open.gov.uk/lcd/lcdhome/
Also see: www.LawOnLine.com and www.beagle.org.uk for information on the Reforms
[For use after 26 April 1999]
Footnotes
- Hinds v London Transport Executive [1979] RTR 103,CA.
- Liddell v Middleton (1995) Times, 17 July, CA.
- Part 35.3 Civil Procedure Rules 1998.
- Taken from the dicta of Cresswell J Per National Justice Compania Naviera Essay v Prudential Assurance Co Limited (Ikarian Reefer)[1993] 2 Lloyds Reports 68.
- Per P R Garland J in Polivitte Limited v Commercial Union Assurance Co plc [1987] 1 Lloyds Rep 386.
- Part 35.5 Civil Procedure Rules 1998.
- Kenning v Eve Construction [1989] 1 W.L.R. 1189; see also Part 35.10 Civil Procedure Rules 1998.
- ie orders directing each or any of the parties to take certain steps. See Part 35.15 Civil Procedure Rules 1998.
- Part 35.4.(2) Civil Procedure Rules 1998.
- Part 35.4.(4) Civil Procedure Rules 1998.
- Part 35.7 Civil Procedure Rules 1998.
- Part 35.5 Civil Procedure Rules 1998.
- Order 38 Rule 38 RSC and Part 35.12 CPR 1998.
- Part 35.10 (and Practice Direction 1.2 thereof) of the Civil Procedure Rules 1998.
- Practice Direction3 to Part 35 of the Civil Procedure Rules 1998.
- Part 35.6 Civil Procedure Rules 1998.
- Part 35.13 Civil Procedure Rules 1998.
