Learning Outcomes
This article outlines the rules relating to opinion evidence and the duties of expert witnesses in civil proceedings. It covers the general inadmissibility of opinion evidence, the exceptions for lay witnesses and experts under the Civil Evidence Act 1972, and the specific requirements for expert evidence under CPR Part 35. After reading this article, you should understand the overriding duty of experts to the court, the procedures for instructing experts, the content requirements for expert reports, and the rules governing discussions between experts and single joint experts. This knowledge is essential for tackling SQE1 questions on evidence.
SQE1 Syllabus
For SQE1, you must understand the principles governing the admissibility and use of opinion evidence, particularly expert evidence, in civil litigation. This involves familiarity with the relevant provisions of the Civil Evidence Act 1972 and CPR Part 35. You will need to apply these rules to practical scenarios, identifying when expert evidence is required, the duties experts owe, and the procedures for managing expert evidence effectively.
As you work through this article, remember to pay particular attention in your revision to:
- the general rule regarding the inadmissibility of opinion evidence
- the exceptions for lay witness opinion and expert opinion evidence
- the court's power to control and restrict expert evidence under CPR Part 35
- the overriding duty of an expert witness to the court
- the requirements for the form and content of an expert's report
- the procedure and purpose of discussions between experts
- the circumstances in which a single joint expert may be instructed.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- True or False: Witnesses in civil proceedings are generally permitted to give their opinion on matters relevant to the case.
- Under CPR Part 35, what is the expert's overriding duty?
- Which ONE of the following statements about Single Joint Experts (SJEs) is correct?
a) An SJE is instructed by only one party but prepares a report for all parties.
b) The court cannot direct the use of an SJE if the parties object.
c) An SJE's duty is primarily to the instructing parties who share the costs.
d) The court may direct that evidence on a particular issue is given by an SJE where two or more parties wish to submit expert evidence on that issue. - Within how many days of service of an expert's report can a party put written questions to the expert for clarification?
Introduction
In civil litigation, the general rule is that witnesses should give evidence of facts they personally perceived, not their opinions. The court draws inferences and conclusions from the facts presented. However, there are specific exceptions where opinion evidence is admissible, most notably evidence given by experts. Understanding when opinion evidence is allowed, particularly the rules governing expert witnesses under CPR Part 35, is essential for managing the evidential aspects of civil claims.
The General Rule Against Opinion Evidence
Witnesses are typically confined to stating facts based on their direct knowledge or perception. Their role is not to offer interpretations, conclusions, or opinions on those facts, as this function belongs to the court. This rule ensures that the court bases its judgment on factual evidence rather than potentially biased or unqualified interpretations.
However, the strict application of this rule can sometimes make it difficult for a witness to convey their observations effectively. Consequently, the law recognises limited exceptions.
Exceptions to the General Rule
The Civil Evidence Act 1972 provides statutory exceptions allowing opinion evidence in specific circumstances from lay witnesses and, more significantly, from expert witnesses.
Lay Witness Opinion
Section 3(2) of the Civil Evidence Act 1972 permits a lay witness (a witness who is not testifying as an expert) to give an opinion if it is stated "as a way of conveying relevant facts personally perceived by him". This exception allows witnesses to express opinions that are essentially summaries of their sensory perceptions, where stating the raw facts alone would be impractical or less informative.
Key Term: lay witness A witness giving evidence based on facts they have personally perceived, who is not testifying in the capacity of an expert.
Common examples include:
- Speed (e.g., 'The car was travelling very fast').
- Age (e.g., 'He looked about 30 years old').
- Weather (e.g., 'It was a cold day').
- Emotional state (e.g., 'She seemed very upset').
- Sobriety (e.g., 'He appeared drunk').
In these instances, the opinion is admissible as evidence of the facts perceived by the witness. The weight given to such opinions will depend on the circumstances and the witness's basis for forming that opinion.
Expert Opinion Evidence
The primary exception to the rule against opinion evidence concerns experts. Section 3(1) of the Civil Evidence Act 1972 states:
"[...] his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence."
This allows individuals with specialised knowledge, skill, or experience to provide opinions on matters falling within their field of specialization, where such opinions are necessary to assist the court in understanding complex issues beyond its ordinary knowledge and experience.
Key Term: expert witness A person instructed to give or prepare expert evidence for the purpose of court proceedings, based on their specialised knowledge, skill or experience (CPR 35.2).
Expert evidence might be required on issues such as medical causation, the valuation of property, engineering defects, or forensic accounting. The court relies on expert opinions to understand technical or specialised matters relevant to the dispute.
Expert Evidence Under CPR Part 35
CPR Part 35 governs the use of expert evidence in civil proceedings. Its aim is to ensure that expert evidence presented to the court is independent, relevant, and proportionate to the issues in dispute.
Duty to Restrict Expert Evidence
Reflecting the overriding objective, CPR 35.1 imposes a duty on the court to restrict expert evidence "to that which is reasonably required to resolve the proceedings." This means the court controls the extent and nature of expert evidence permitted.
Permission of the Court
A party cannot rely on expert evidence without the court's permission (CPR 35.4(1)). When applying for permission, the party must identify the area of specialization required, the issues the evidence will address, and if practicable, the name of the proposed expert. An estimate of the costs must also be provided. Permission, if granted, relates only to the expert or field identified and may specify the issues to be addressed.
Overriding Duty to the Court
The most fundamental principle governing experts is their overriding duty to the court. CPR 35.3 states:
"(1) It is the duty of experts to help the court on matters within their specialization. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid."
Key Term: overriding duty The primary duty of an expert witness, stated in CPR 35.3, to help the court on matters within their specialization, which takes precedence over any obligation to the instructing party or payor.
This means experts must provide objective, unbiased opinions regardless of the perceived interests of the party instructing them. Their role is to assist the court, not to act as an advocate for a party.
Content of Expert Reports
Expert evidence is usually given in a written report (CPR 35.5). Practice Direction 35 sets out detailed requirements for the content of an expert's report (PD 35, para 3.2), which must include:
- Details of the expert's qualifications.
- Details of any literature or material relied upon.
- A statement setting out the substance of all material instructions.
- A clear statement of facts or assumptions the opinion is based on, identifying facts within the expert's own knowledge.
- Details of any examination, measurement, test, or experiment conducted.
- A summary of the range of opinions (if applicable) and reasons for the expert's own opinion.
- A summary of the conclusions reached.
- A statement that the expert understands and has complied with their duty to the court.
- A statement of truth verifying the report.
Written Questions to Experts
A party may put written questions to an expert instructed by another party or to a single joint expert about their report (CPR 35.6). These questions must be proportionate, served within 28 days of service of the report, and be solely for the purpose of clarifying the report. They should not be used as a form of cross-examination. The expert's answers are treated as part of the report.
Discussions Between Experts
The court may direct experts from similar disciplines to discuss the expert issues in the proceedings (CPR 35.12). The purpose of these discussions is to:
- Identify and narrow the issues.
- Reach agreed opinions where possible.
These discussions are typically without prejudice and legal representatives do not attend unless agreed by the parties or ordered by the court. Following the discussion, the experts must prepare a joint statement setting out the issues on which they agree and disagree, with summaries of their reasons for disagreement. This statement does not bind the parties unless they expressly agree to be bound.
Single Joint Experts (SJE)
The court has the power to direct that evidence on a particular issue should be given by one expert jointly instructed by the parties (a single joint expert or SJE), rather than each party instructing their own expert (CPR 35.7).
Key Term: single joint expert (SJE) An expert instructed to prepare a report for the court on behalf of two or more parties to the proceedings (CPR 35.2).
The court will consider instructing an SJE particularly where the issue is not complex or the amount in dispute is relatively small, aligning with the overriding objective of saving expense and dealing with cases proportionately. This is the usual approach in fast track cases. If parties cannot agree on the identity of the SJE, the court may select one from a list provided by the parties or direct another method of selection.
Worked Example 1.1
In a claim concerning alleged defective building work valued at £20,000, the Claimant (C) wishes to rely on a structural engineer's report. The Defendant (D) also wishes to rely on evidence from a structural engineer. The case has been allocated to the fast track. What direction is the court most likely to make regarding expert evidence?
Answer: Given the value of the claim and its allocation to the fast track, the court is most likely to direct that evidence from a structural engineer be given by a single joint expert (SJE), unless there is a good reason not to do so (PD 28, para 3.9). This promotes proportionality and efficiency. The court may select the SJE if the parties cannot agree.
Exam Warning
Remember that an expert's duty is to the court, not the instructing party. An expert who appears biased or acts as an advocate for their instructing party risks having their evidence given little or no weight by the court, and may face criticism. Ensure any expert you consider instructing understands their overriding duty.
Consequences of Failing to Disclose an Expert's Report
A party who fails to disclose an expert's report cannot use the report at trial or call the expert to give oral evidence unless the court gives permission (CPR 35.13). This emphasizes the importance of complying with court directions for the exchange of expert evidence.
Worked Example 1.2
A Claimant in a personal injury claim serves their medical expert's report late, missing the deadline set by the court's directions order. The Defendant objects to the Claimant relying on this report at trial. What must the Claimant do?
Answer: The Claimant must apply to the court for relief from sanctions under CPR 3.9. The court will consider the Denton criteria: the seriousness and significance of the breach, the reason for it, and all the circumstances of the case, including the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules and orders. The Claimant will also need the court's permission under CPR 35.13 to rely on the late report.
Revision Tip
Focus on understanding the expert's overriding duty to the court (CPR 35.3) and the court's power to control expert evidence (CPR 35.1 and 35.4). These are fundamental principles frequently tested in SQE scenarios involving experts.
Key Point Checklist
This article has covered the following key knowledge points:
- Opinion evidence is generally inadmissible in civil proceedings, with exceptions for lay witness perceptions and expert opinions.
- Expert evidence requires the court's permission and is restricted to that reasonably required to resolve proceedings (CPR 35.1, 35.4).
- An expert's overriding duty is to the court, helping it on matters within their specialization (CPR 35.3).
- Expert reports must comply with the form and content requirements of PD 35.
- Parties can put written questions to experts for clarification (CPR 35.6).
- The court may direct discussions between experts to narrow issues (CPR 35.12).
- The court can order evidence to be given by a single joint expert (SJE) (CPR 35.7), which is common on the fast track.
Key Terms and Concepts
- lay witness
- expert witness
- overriding duty
- single joint expert (SJE)
