#3657 - Experts - Civil Procedure

ESSAY PLAN 4 – Experts in general

Duty to the court

Jolowicz (2000) – experts needs because “no judge is omniscient” and “we cannot demand of the judges that they have knowledge of every branch of science, of every art and of the mysteries of every profession”.

Hodgkinson and James (2010) – four main categories of expert evidence: 1) opinion on facts, 2) explain technical subjects/words, 3) evidence of fact, 4) admissible hearsay of a specialist nature.

Lord Woolf’s reforms were intended to “increase the independence of experts and to reduce their partisan use by the parties”.... “assist the court”.

Lord Woolf was of the opinion that expert evidence was one of the two “major generators of unnecessary cost in civil litigation” (along with disclosure/discovery).

Commercial Judges in their collegiate response to the Woolf Inquiry stated that experts had become a very effect weapon in the parties’ arsenal of tactics_ polarisation of issues and unwillingness to concede issues from the start; insufficient observance of confines of expert evidence not in the realms of rival submission; insufficient willingness to strip out, agree or concede.

Key Surveyors (1996) – Lord Bingham – “on occasion becoming more partisan than the parties”

Armstrong – Brooke LJ: “we do not have trial by expert in this country; we have trial by judge” experts are not infallible and the judge is the final arbiter. Arden LJ: the judge cannot remain mute, but doesn't have to become loquacious.

Dwyer – “the Woolf reforms have successfully walked the fine line between experts as judicial assistants on the one side and experts as adversarial weapons on the other”

Whitehouse – Lord Wilberforce: “it is necessary that expert evidence presented to the court should be and should be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation”.

CPR 35.3 – paramount duty of the expert to help the court on the matters within his expertise and this duty overrides any obligation the expert may have to the person who instructs/pays him.

Dwyer (2007) – four ways of reducing likelihood of bias in expert evidence: (1) use of neutral experts, (2) duties and obligations, (3) removal of litigation privilege from draft expert reports and (4) restricting opportunities for personal involvement.

Clarke in foreword to Experts in Civil Courts thinks that stigma of partisanship still exists today because it “is inevitable because it is human nature”.

Hazard – the party expert system injects often salutary scepticism, debate and intellectual honesty. Problem of lack of neutrality can easily be exaggerated: “valuable assistance... concerns generally misplaced...risk is offset by value of such evidence.”

Lord Bingham (2000) – parties are “naturally reluctant to forgo this assurance for an independent expert whom they do not engage, do not directly pay, cannot decline to call if his opinion is entirely hostile and cannot, perhaps, cross-examine so effectively”.

Court assessors in maritime collisions and patent litigation.

Curbing excess

Blom-Cooper – “the leitmotif of the Woolf reforms has been to curb the unnecessary delay and expense that permeated the uncontrolled used by litigating parties of expert evidence”

Edis (2007) – expert evidence is “expensive and causes delay in the proceedings”

The CPR aims to curb the perceived excesses of the party appointed “battle of experts”. Three problems pre-CPR were 1) experts lost objectivity and tailored their report to suit that part’s case, 2) too many experts in each proceeding, 3) lack of equality of arms.

CPR 35.4 – court has complete control over the use of expert evidence and no expert evidence may be adduced without the court’s permission.

CPR 35.1 and 35.4(4) and 44.4 – the court has a duty to restrict the use of expert evidence to that which is reasonably required to resolve the proceedings and will limit the amount of expert fees that can be recovered by application of the principle of proportionality. No expert evidence can be presented in a case unless the court has granted permission.

CPR 35.4(3A) – where permission given for use of expert in a claim allocated to the small claims track or fast track it will now normally be restricted to evidence from only one expert on a particular issue.

CPR 35.5(1) – presumption that expert evidence will be given in the form of a written report unless the court orders otherwise.

Jackson – the best way to control the cost of expert evidence is by setting a budget in advance; r 35.4(2) will be amended to require parties at the permission stage to furnish estimates of the costs of their proposed expert evidence.

Factortame (No 8) – Lord Phillips: it is improper to pay an expert witness on a conditional or contingency fee basis.

Single joint expert

Lord...