Evidence and disclosure - Opinion evidence and duties of experts

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Master the rules of opinion evidence, the role of expert witnesses, and CPR Part 35 duties for success in the SQE1 FLK1 civil litigation exam.

Overview

In civil litigation, opinion evidence and expert witnesses hold significant sway over legal proceedings. Understanding these aspects is key for SQE1 FLK1 exam candidates, as they are embedded in the principles of evidence law and civil procedure. This article examines when opinion evidence is permissible, the essential roles experts play within the legal framework, and how the Civil Evidence Act 1972 interacts with the Civil Procedure Rules (CPR) Part 35.

The General Rule and Exceptions to Opinion Evidence

English law generally requires witnesses to provide factual accounts of events they've observed, as outlined in Section 2 of the Civil Evidence Act 1972:

"In civil proceedings evidence of opinion is inadmissible except in so far as the opinion is one which the witness, by reason of his special knowledge or experience, is qualified to give."

There are two main exceptions to this rule:

1. Lay Opinion Evidence

Lay witnesses may offer opinions based on personal observations or experiences. This exception is based on the idea that some inferences from direct perception are so deeply rooted in human experience they are practically factual.

Key considerations:

  • Must be grounded in the witness's own sensory perception
  • Necessary for a full account of the witness's evidence
  • Witness should have personal knowledge of the matter

Example: In a traffic accident case, a witness might estimate a vehicle's speed based on direct observation, which is crucial for a complete account of the incident.

2. Expert Opinion Evidence

Experts can provide opinions on matters within their field. This is codified in Section 3 of the Civil Evidence Act 1972.

Key considerations:

  • Expert must be suitably qualified
  • Evidence must be beyond the court's common knowledge
  • Opinion should be based on facts known to the expert or proven in evidence

Example: In a medical negligence case, a consultant might offer an opinion on whether a doctor's actions met the standard of care, requiring specialized knowledge the court lacks.

The Role and Duties of Expert Witnesses

Expert witnesses contribute specialized knowledge to help the court understand complex issues. Their chief duty is to the court, not to the instructing party, as reflected in CPR Part 35.3.

Key Responsibilities of Expert Witnesses

  1. Impartiality and Independence: Experts must provide unbiased opinions.
  2. Scope of Expertise: Constrain opinions to their field and state any limits of knowledge.
  3. Basis of Opinion: Clearly explain the facts and assumptions behind opinions.
  4. Consideration of Alternative Views: Address any conflicting evidence or interpretations.
  5. Clarity and Transparency: Reports must be clear and thorough, including all significant facts and considerations.

Expert Reports and CPR Part 35 Compliance

Expert evidence is regulated by CPR Part 35 and its Practice Direction. Requirements include:

  • Form of Evidence: Generally provided in written reports unless directed otherwise (CPR 35.5(1)).
  • Content of Reports: Must include expert qualifications, a statement of truth, and details of materials relied upon (PD 35 para 3.2).
  • Questions to Experts: Parties can ask written questions about reports (CPR 35.6).

Example: In a construction dispute, an expert report might detail the engineer's qualifications, methodology, and assessment of structural defects, providing a statement of truth to affirm impartiality.

Challenging Expert Evidence: Admissibility and Reliability

Expert evidence can be contested on several grounds. Key challenges include:

1. Admissibility

The court first assesses if expert evidence is relevant and presented by a qualified individual.

Example: While a software design expert can discuss vulnerabilities, a financial accountant cannot.

2. Reliability

The court evaluates the reliability of expert evidence, looking at methodology, evidence quality, and qualifications.

Example: If an expert's methodology is flawed, their testimony might carry less weight.

3. Hearsay Considerations

Experts may use hearsay in their opinions, which affects evidential weight. Sources must be identified in reports.

Example: A forensic accountant might rely on various financial records, noting the hearsay nature and its impact on conclusions.

Single Joint Experts and Expert Conferences

Single Joint Experts (SJE)

The court may appoint an SJE, particularly when issues are minor or values are low, as per CPR 35.7.

Key points:

  • Jointly instructed by all parties
  • Court approval required
  • Written questions may be addressed to the SJE

Example: In a personal injury claim, an SJE may evaluate injuries to avoid multiple expert opinions.

Expert Conferences and Joint Statements

When multiple experts are involved, they might meet to create a joint statement, aiming to narrow disputes.

Key aspects:

  • Conducted without lawyers present
  • Discussions are without prejudice
  • Joint statement outlines agreements and disagreements

Example: In a software patent dispute, experts may meet to agree or disagree on technical aspects, clarifying patent issues.

Practical Applications and Exam-Relevant Scenarios

This section illustrates exam-relevant scenarios, showing the application of opinion evidence principles and expert duties:

Scenario 1: Personal Injury Claim

A client injured in an accident needs a medical expert's report on their injuries and prognosis.

SQE1 FLK1 Focus: Ensure the report aligns with CPR Part 35. Opposing parties might challenge its admissibility or reliability.

Scenario 2: Breach of Contract Dispute

A business claims a developer's software didn't meet specifications. A software expert is needed.

SQE1 FLK1 Focus: Assess the expert's duty to the court and parties. Evaluate the reliability factors for expert opinions.

Scenario 3: Construction Defects

A homeowner sues over defects in their house. A structural engineer assesses the cause and cost of repairs.

SQE1 FLK1 Focus: Consider the potential for joint statements and the ethical duties of involved experts.

Conclusion

Understanding the nuances of opinion evidence and expert witness duties is essential for SQE1 FLK1 success. Key points include:

  1. Understanding the rule against opinion evidence and exceptions for lay and expert witnesses
  2. Acknowledging the supreme duty of experts to the court and their obligation to provide objective opinions
  3. Mastering the requirements for expert reports under CPR Part 35
  4. Addressing challenges to expert evidence on admissibility, reliability, and hearsay
  5. Using Single Joint Experts and conferences to streamline proceedings

By mastering these concepts, candidates will effectively handle the complexities of opinion evidence and expert testimony in civil cases, both for the SQE1 FLK1 exam and future legal practice.