The Claims Process: Expert Evidence

Following on from article on witness statements, we will be following the claims process to look at expert evidence.

Expert evidence can be an important part of the civil litigation process, as it assists the Court in providing independent and impartial evidence relating to a specific issue or issues within the expert’s area of expertise.

When is expert evidence permitted?

Expert witnesses are not necessarily permitted in every instance.  CPR 35.1 states that “expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”.  Parties should, therefore, attempt to narrow down the issues in dispute prior to instructing an expert.

Any party seeking to rely on expert evidence at trial must first get the permission of the Court (CPR 35.4(1)).  CPR 35.4(2) states that “when parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

• 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”.

Expert witnesses

CPR 35.2(1) states that “a person who has been instructed to give or prepare expert evidence for the purpose of proceedings” is an expert.  This would be a Court appointed expert also known as an expert witness.

In contrast to witnesses of fact (discussed in our previous article), expert evidence is generally based on opinion rather than fact.  CPR 35.5 presumes that expert evidence will be in a written format, however, if the Court grants permission, such evidence may be given orally.

The key duty of the expert witness is to assist the court. This overrides any duty towards the parties instructing the expert or paying them for their services. Expert witnesses provide their opinion in order to assist the court. The expert must give independent opinions on their area of expertise only, meaning that if they were instructed by a different party, their opinion would remain the same.

Single joint experts

In cases where parties feel it is necessary to obtain expert evidence, the use of a single joint expert should be considered (particularly where the case is particularly low value).  Where both parties wish to submit expert evidence on an issue, the Court can also direct that this should be by way of single joint expert.

A single joint expert is jointly instructed by the parties and the parties will usually seek to agree the terms of instruction and share the cost of the expert.  A single joint expert may assist in resolving a dispute in a more timely and cost efficient manner than separately instructed experts.

How can we help?

Instructing experts in civil litigation proceedings is not straightforward and not suitable in all circumstances.  If you have any queries about the use of expert evidence, our team of Dispute Resolution lawyers can assist.