Expert Evidence

Expert Evidence

Expert evidence of negligence must generally be present before proceedings are issued in a professional negligence claim. This is a practical requirement but is also close to a legal requirement. The courts have indicated that it is generally required as a question of professional duty.

Failure to have medical evidence may lead to a case being dismissed are struck out. However it is not necessarily an absolute requirement. If the proceedings are near to being barred by the statute of limitations and there is some other evidence and no material prejudice to the defendan it would be permissible to issue proceedings for the statute would otherwise be missed. If further proceedings are issued in such circumstances it expert evidence will be effectively required to continue prosecution of the proceedings.

In medical negligence claim reports opinions will be required of appropriate professional practitioners on the issues in the claim. This will range from treatment act or omission et cetera prognosis care and treatment required and so on.

Evidence in Med Neg

The Law Society has published guidance on relationships between solicitors and experts.

See generally the sections on expert evidence. But an ordinary witness cannot give evidence in matters of opinion. They are limited to matters of effect fact. A person who has proved to be an expert in a particular field may give opinion evidence in relation to his field of expertise.

The Medical Council guidelines are professional conduct and ethics specify criteria around giving expert reports and opinions for patients and medical legal matters.

The expert should have confidence in the area the subject of the claim. An appropriate expert would be one with expertise in the relevant speciality stop the should be independent of the parties. This should be in practice at the same time.

It is not unusual to obtain expert evidence in the United Kingdom given possible conflicts of interest with domestic experts in relatively in fields where there are relatively few practitioners.

The Law Society has given guidance in relation to references by solicitors to particular experts. Loss design practice recommends that the solicitor advise the client to request his or her GP to refer them to a consultant specialising in the relevant area. If the GP is not willing to do so, the solicitor is advised to write to the GP, setting out the symptoms and requesting irreparable reference to the appropriate specialist. If no response comes within the stated period of 21 days of giving the notice,he may write directly to the consultant.

Exports Reports

The expert reports should set out

• Particulars of qualification relevant literature and material relied on
• Facts assumed and instructions given material to the opinion
• which facts are within knowledge and which are assumed say who was carried out any examination experimental
• setup where there is a range of opinion summarise the range of opinions given
• give reasons for opinion
• contain some rate state
• any qualifications to the opinion if applicable
• set out opinion in response to the question asked
• confirm the fee is not dependent on outcome of case

Disclosure of  Reports

The personal injury rules of court relevant rules provide for the disclosure of reports and statements prior to trial. See generally the section on personal injury procedure.

Where the plaintiff can exchange reports on the question of liability and the defendant has not done so requires exchange reports, the court may require an undertaking the party who is not prepared reports that he will not show the other side’s reports to experts of those experts have given their own report.

See generally the section in relation to personal injuries. There are obligations to disclose certain expert reports intended to be for experts intended to be called to give evidence in relation to an issue in the action containing the substance of the evidence to be adduced and also to include maps drawings photographs chart calculations et cetera

Expert Evidence Requirements

The rules of court provide for expert evidence in rules Expert Evidence. It is the duty of an expert to assist the Court as to matters within his or her field of expertise. This duty overrides any obligation to any party paying the fee of the expert.

Every report of an expert delivered pursuant to these Rules or to any order or direction of the Court shall:

• contain a statement acknowledging the duty of an export;
•  disclose any financial or economic interest of the expert, or of any person connected with the expert, in any business or economic activity of the party retaining that expert, including any sponsorship of or contribution to any research of the expert or of any University, institution or other body with which the expert was, is or will be connected, other than any fee agreed for the preparation by the expert of the report provided or to be provided in the proceedings concerned and any fee and expenses due in connection with the participation of the expert in the proceedings concerned.

Expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings.

Court Orders for Expert Evidence

A Judge may—of his own motion and after hearing the parties, or on the application of a party by motion on notice to the other party or parties, make any of the following orders or give any of the following directions as to expert evidence:

• requiring each party intending or proposing to offer expert evidence to identify–
• the field in which expert evidence is required; and
• where practicable, the name of the proposed expert;
• determining the fields of expertise in which, or the proposed experts by whom, evidence may be given at trial;
• fixing the time or times at which a report setting out the key elements of the of the evidence of each expert intended or proposed to be offered by each party shall be delivered to each other party concerned or exchanged and in default of such order being made, the provisions of sub-rules (1) to (5) inclusive of rule 46 shall apply to every such report;
• where two or more parties (in this rule, the “relevant parties”) wish to offer expert evidence on a particular issue, direct that the evidence on that issue is to be given by a single joint expert (in this rule, the “single joint expert”);
• Where the relevant parties cannot agree who should be the single joint expert  select the expert from a list prepared or identified by the relevant parties; or  direct that the expert be selected in such other manner as the Court directs;
• as to the terms on which and manner in which the single joint expert is to be instructed;
• requiring any party:to pay to the single joint expert, or  to deposit with the Accountant on account of fees to become payable to the single joint expert, a specified sum in respect of or on account of a single joint expert’s fees and, where the Court so orders, the single joint expert shall not be required to act until the said sum has been paid or, as the case may be, deposited.

Save where the Court for special reason permits, each party may offer evidence from one expert only in a particular field of expertise on a particular issue. Such permission shall not be granted unless the Court is satisfied that the evidence of an additional expert is unavoidable in order to do justice between the parties.]

A party may put a concise written question or questions concerning the content of an expert’s report to—

• an expert instructed by another party; or
• a single joint expert appointed pursuant to agreement of the parties or pursuant to order made.

An expert shall not be obliged to answer any written questions put which are disproportionate, unnecessary for the determination of any matter at issue in the proceedings or not within the expert’s field of expertise. If necessary, a party or single joint expert may apply by motion on notice for a ruling on any issue arising from such written questions.

Written questions

Written Questions may be put once only;

• shall be put within 28 days of service of the expert’s report; and
• shall be for the purpose only of clarification of the report,
• unless in any case— the Court permits otherwise, or   the other party who has instructed the expert concerned agrees.

An expert’s answers to questions put above shall be treated as part of the expert’s report.

Where—

• a party has put a written question to an expert instructed by another party; and
• the expert does not (in the absence of a ruling that he is not obliged to do so) answer that question

the Court may make one or both of the following orders in relation to the party who instructed the expert— that the party may not rely on any, or a specified part, of the evidence of that expert or that the party may not recover any, or a specified part, of the fees and expenses of that expert from any other party.

Pre-Trial Management

Where two or more parties intend to call experts who, according to their reports as exchanged between the parties or filed in Court, may contradict each other as to evidence, then:

• following application by any party by motion on notice to the Judge chairing and regulating the pre-trial conference, or of that Judge’s own motion, in any case in which such a conference is to be held, or
•  following application by any party by motion on notice to the trial Judge in any case, or
•  where so ordered by the trial Judge, having heard the parties, in the absence of any such motion,

the Judge concerned may order that the procedure set out in rule 61 be applied where that Judge considers it necessary in the interests of justice.]

Where an order has been made , the experts shall be required to meet privately, without the presence of any party or any legal representative of any party, and to discuss with each other their proposed evidence. Following the meetin the experts shall be required to draw up a written statement (in this rule, the “joint report”) identifying such evidence as is agreed between or among them and such evidence as is not agreed. The joint report shall be lodged in Court to be furnished to the trial Judge in advance of the trial and a copy shall be provided to each of the parties.

Upon a consideration of the joint report, the trial Judge may, at any appropriate stage of the trial:

• require any opposing experts to be examined and cross-examined (either on the whole or on a specified part of their evidence) one after another, in such order as the trial Judge shall direct, or
• apply the “debate among experts” procedure

Where the “debate among experts” procedure is applied, each of two or more contradicting experts shall be sworn in order to testify at the same time. When sworn, each expert, in such order as the trial Judge shall determine, and without being examined by, or by counsel for, any party, shall give an outline of the evidence that is agreed between or among them.

The experts shall then, in such order as the trial Judge shall determine, present the evidence on which they are not agreed the one with the other or others. Following such presentation, the experts may, subject to the directions of the trial Judge in that regard, be required to debate the points which are not agreed between or among them, the one with the other or others.

When the “debate among experts” is complete, examination in chief by counsel, if deemed necessary by the trial Judge, and cross examination by counsel on such matters as the Judge directs, or if the Judge so directs, general cross examination shall be allowed, as may re-examination.