Expert Evidence

Opinion Evidence Issues

There is a general exclusion (the hearsay rule) on offering statements by third parties, (i.e. made other than by a witness in court), as evidence of their truth.  A report offered as evidence of the truth of its contents would be hearsay.

The general position is that opinion evidence may not be offered or considered by a Court.   A witness may only give evidence of  facts he has observed or has first hand knowledge of. However, by way of exception to this rule, where it is proved to the Court that a witness is an expert in a particular field, that expert may give evidence in relation to matters within his expertise and competence.

Expert evidence is  allowed in relation to all matters which are outside the knowledge and expertise of the judge (or in exceptional cases where there is a jury). It must be proved that expert evidence is required and that the expert has the necessary qualifications in the relevant field. The Courts take a broad approach to the question of expertise.

There is no requirement for formal qualifications in the area concerned, although this would be a relevant consideration. The Courts have regard to the experience, training and education of the person in the requisite field.  Experience alone may be enough. It is essential that the person be an expert in the actual issues involved in the case.  The expert may only give opinion evidence in his field of expertise.

Parameters

An expert’s opinion should be based on proved or agreed facts.  If they are not so based little weight would be attached to his opinion. Where an expert does not have first knowledge of the facts on which his opinion is based, he may nevertheless state a hypothesis on the basis of the assumed facts.

If an expert is giving evidence in the form of a hypothesis, he must explain the conclusions reached by setting out his assumption of facts. He may assume facts on matters of common knowledge.

Traditionally, expert evidence was not allowed where it would determine the actual matter in dispute.  The notion is that this would usurp the court.  However, this is viewed as unduly restrictive in modern times.

It is a matter for the Court to assess the weight and value of expert evidence.  It need not accept the evidence . It may accept the evidence of one expert over the other.  The court may have to decide on contentious issues with two contrary views.

The judge may not be sure that either is right,  if the issues are technical or fall within an area in which he has no expertise.  Nonetheless, the nature of judicial process requires that a decision be made.

Role of Expert Witness

It is a basic duty of every witness, including an expert to be truthful, independent and impartial.  He must resist becoming a partisan advocate for the instructing party and must act independently.

The witness is not as an advocate.  Expert evidence must be an independent, uninfluenced by which side has called him. An expert witness should provide independent assistance to the Court by way objective unbiased opinion in relation to the matter within his expertise.

The witness should state facts and assumptions upon which his opinion is based.  He should not omit material facts which could detract from his conclusions.  He should make it clear whether a particular matter falls outside his expertise.

Duties of Expert Witness I

An expert owes a paramount and overriding duty to assist the Court by providing independent and unbiased opinions on matters within his expertise.

When an expert is giving expert evidence he is under a duty to ascertain all facts and essential information, including those facts which may detract from his opinion.  He must ensure that his opinion is clear, accurate and unbiased and contains all necessary information such as the material on which it is based, whether or not this supports the proposition and the thought processes involved in coming to the opinion.

The opinion must be genuinely held and be reasonable.  The expert should disclose whether or not assumptions have been made and any data limitations and shortcomings which may affect the result of the opinion. He should inform the Court of a change of opinion or when he was unable to give a definitive opinion.

The Irish Courts have stated that where a witness purports to give evidence in a professional capacity as an expert he owes a duty to ascertain all surrounding facts and give that evidence in the context of those facts, whether or not it supports the proposition he is being asked to put forward to not.

Duties of Expert Witnesses II

Experts have a duty to limit contentious facts.  They should agree matters where there is no reasonable basis of disagreement.

This is a duty owed in the interest of justice. Experts have a duty to avoid conflicts of interest.  This implies an obligation to notify parties where there is a potential conflict of interest or where he/she feels he/she is not independent.

The Expert Witness Code of Conduct, outlines the requirements of independent professional objectively, impartiality and the duty to disclose circumstances which might influence the work of the expert.  Specifically mentioned are any financial interests or connection with any individuals mentioned in the matter.

An expert witness must keep his opinion within the scope of his expertise.  He must keep his opinion to matters outside the scope of the expertise of the Court.  He must give an opinion only on matters arising and in dispute.  He must not take the place of the Court in determining facts and conclusions based on his/her knowledge.  He must impart his knowledge and enable the Court to reach its own conclusions.

Once an expert undertakes to act as an expert witness, he must carry out his tasks necessary to see out this role.  He must be available as far as reasonably possible to testify in Court about the contents of his expert report.  It is no way the function of an expert to act as an advocate.  The expert must set aside the financial, intellectual and sub-conscious bias that may exist by being instructed by one party.

Liability & Immunity

Besides an overriding duty to the Court, the expert owes a duty to act with reasonable care towards the instructing party. He must consult with the instructing party prior to his appointment, to ensure that the conditions of his appointment are agreed and that the area of expertise and the opinions sought are clarified.

Witnesses are immune from being sued at common law.  This immunity applies to expert witnesses.  The purpose is to protect the public interest and advance the administration of justice.  Witnesses should not be deterred for fear of legal action from coming forward and testifying the truth.

The immunity will not apply where it is clear that an abuse of legal process is involved.  For example, witness must not use the proceedings in hand to make wholly irrelevant and unwarranted attacks on the good name and reputation of others.  This would be contempt of Court and be punishable accordingly.

UK Reforms

The Woolf  Reforms in England and Wales have radically changed the rules regarding admission of expert evidence. The active case management approach of the England and Wales Courts is slowly taking ground in Ireland.  The case management powers of the Commercial Court, which are widely regarded as successful and efficient in streamlining the litigation process, are heavily influenced by the Woolf Reforms, which have applied in all English Courts since 1999.

In Ireland, the general rule was that both parties have unfettered rights to offer expert evidence. However, the English Court as part of its case management powers will limit expert evidence to what is reasonably required to resolve the dispute. The Courts are entitled to restrict evidence to that which is reasonably required to resolve the dispute. This usually happens at the case management/direction stage.

The Civil Procedure Rules provide that no party may call an expert and put forward an expert’s report without the Court’s permission. Permission will usually be granted at the direction stage. The person applying for permission must identify the field in which he intends to rely on the expert evidence and details of the expert in that field and on whose evidence he proposes to rely.

The Court may decide that no expert evidence is to be produced at all. Alternatively, it may limit the number of expert witnesses and may direct that evidence is to be given by one expert chosen by agreement or chosen in such manner as the Court decides.

The English Civil Procedure Rules give detailed instructions on the contents of expert reports. They must be addressed to the Court and not to the party giving the instructions. They must detail the expert’s qualifications and give details of the literature and material upon which he has based his report and set out any experiments or tests that have been carried out. Where there is a range of opinions on a particular matter, the expert must  summarise the range of opinions and give reasons for his own opinion. It must contain summaries and conclusions for each.

Where there is more than one expert, the Court will usually direct a discussion after exchange of reports and require them to identify and discuss issues and where possible reach agreement on them. The Court usually directs that after discuss the experts must prepare a statement which shows the issues that are agreed and those which are disagreed. Their report must summarise the reason for disagreement. The content of discussions cannot be referred to unless the parties consent.

Irish Reforms

The Irish Commercial Court follows the approach of the Woolf Reforms. It may direct witnesses to consult with a view to agreeing evidence, if possible. The case management powers of the Commercial Court are used to reduce the issues in question and focus litigation only on areas generally in dispute.

It may require witnesses to submit a joint memorandum on the outcome of its consultation.  This will not be binding to the parties in the proceedings.

The recent High Court rules on mediation and conciliation gives the High Court powers to adjourn legal proceedings to allow the parties to engage in alternative dispute resolution.  If it considers appropriate, the Court may, of its own accord or on the application of one party or another in a suitable case direct an adjournment and invite the parties to use one or other form of alternative dispute resolutions.

If the parties are willing to consent to ADR the Court will refer the proceedings to ADR and adjourn them for a sufficient time to allow the procedure to take place. There are various types of alternative dispute resolutions if the matter in dispute is appropriate for reference to an independent

ADR is a means of resolving disputes by using a third party to help reach a solution. There are various types of ADR such as mediation, expert appraisal or expert determination. ADR is voluntary. Either party can withdraw at anytime. In contract neither party can withdraw from litigation without paying the other party’s costs. If the parties are unable to negotiate a settlement, the Court will usually impose its solution