Civil claim procedures - Evidence (expert and witness)

Learning Outcomes

After reading this article, you will be able to identify, explain, and apply the key rules for expert and witness evidence in civil claims. You will know when expert and witness evidence is required, the proper format and procedure for their evidence, and how courts determine admissibility and weight. You will also be able to apply these principles to common SQE-style scenarios and understand how to meet client needs with the appropriate use of evidence.

SQE2 Syllabus

For SQE2, you are required to understand the principles and procedures governing evidence in civil claims, particularly as they relate to the roles and requirements for experts and witnesses. Focus your revision on:

• The use and admissibility of expert and witness evidence in civil proceedings
• The difference between expert evidence and evidence of fact, including roles and duties
• Preparation, content, and use of witness statements and expert reports
• Criteria and procedure for appointing experts, including single joint experts
• The rules governing oral and written evidence, including the use of hearsay evidence
• The court’s approach to admissibility, weight, and allocation of costs for expert evidence

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.

1. What makes expert evidence necessary, and who decides whether it can be included in a civil case?
2. What are the main required contents of a witness statement for trial?
3. Who does an expert owe their overriding duty to?
4. In what circumstances may the court require a single joint expert rather than experts selected by each party?

Introduction

The ability to present convincing evidence is essential in civil litigation. Two principal types of evidence are provided to the court: expert evidence and evidence from witnesses of fact. Strict procedural rules determine how this evidence must be gathered, disclosed, and presented to the court. These rules are important for ensuring fair and efficient dispute resolution.

Expert Evidence in Civil Claims

Expert evidence is used when the court needs technical, scientific, or specialist guidance outside the knowledge of a layperson. Expert evidence is only allowed if it is reasonably required to resolve the issues in dispute.

Key Term: expert evidence
Evidence from a person with relevant experience or qualifications who has been permitted by the court to provide an independent opinion to assist the court in understanding matters that require specialist knowledge.

Permission and Role of Experts

No party may use expert evidence unless the court has given permission, and usually only one expert per issue will be allowed, except with specific approval.

Key Term: single joint expert
An expert instructed by all parties jointly, to give an opinion on a particular issue, typically used to save costs and avoid duplication.

Experts have an overriding duty to help the court, not just those instructing them.

Key Term: overriding duty
The primary responsibility of an expert to provide impartial and independent assistance to the court, regardless of the interests of the party who has instructed or paid them.

The expert’s report must be addressed to the court, include the statements required by the Civil Procedure Rules (CPR), and provide adequate explanation for each opinion.

Appointment and Duties of Experts

The court may require the parties to agree on a single joint expert. If separate experts are permitted, any expert evidence provided must be disclosed to the other side.

An expert must confine their opinion to matters within their specialist knowledge and must not advocate or argue the case for the client who instructs them. Experts must be independent, disclosing any actual or potential conflict of interest.

Key Term: expert report
The written document provided to the court by an expert, setting out their qualifications, factual assumptions, methods used, and conclusions.

When Expert Evidence Is Used

Expert evidence is required wherever the issue in dispute extends beyond the understanding or experience of a judge or jury. Examples include valuing property, assessing medical harm, or evaluating technical faults in contract disputes.

Procedure for Using Expert Evidence

Permission to rely on expert evidence is usually sought during case management conferences or by application at an early stage of the litigation. The court will assess the necessity of expert input for each issue.

Expert evidence will usually be given in written form by way of an expert report. The expert may also give oral evidence at trial, subject to the court’s directions.

Key Term: expert witness
A person with specialised knowledge or qualifications who is permitted by the court to provide independent opinion evidence to assist in the resolution of issues requiring specialised knowledge in a civil claim.

Use of Single Joint Experts

To keep litigation costs manageable and avoid delay, the court may direct that parties must instruct a single joint expert in particular fields, especially for lower-value or less complex cases. Where parties cannot agree, the court can appoint an expert.

Content of an Expert Report

The expert report must state:

• The expert’s qualifications and experience
• The issues addressed
• Methods and information sources
• Factual assumptions and instructions received
• Summary of conclusions and reasoning
• The extent of agreement or disagreement with other experts, with reasons
• A statement of compliance with their overriding duty, and a statement of truth

If the expert cannot give an unqualified opinion, the report must explain why, including the limitations of available information.

Communication and Clarification

The parties may put written questions to an expert after a report is disclosed, seeking clarification or challenging methodology. Experts may be directed to meet and produce a joint statement identifying points of agreement and disagreement, and explaining the basis for those disagreements.

Witness Evidence in Civil Claims

A witness of fact is a person who provides evidence about events or circumstances they perceived directly. All evidence of fact to be relied on at trial must, except where the court otherwise directs, be presented in written form by way of a signed witness statement.

Key Term: witness of fact
A person (other than an expert) who provides evidence of facts based on their own knowledge, experience, or observation, usually regarding the circumstances of the dispute.

Preparation and Structure of Witness Statements

A witness statement must be in the witness’s own words, in the first person, and include:

• The witness’s name and address
• Their occupation or description
• The capacity in which the statement is made (e.g., party, employee, or other capacity)
• Facts within their own knowledge, clearly identified
• Details of any exhibits the witness refers to
• A statement of truth

The statement should provide only admissible evidence, should not include opinion except where it is part of a permitted exception (such as fact-based impressions), and must state explicitly where matters are based on belief or information not directly known to the witness.

Hearsay and Admissibility

Facts in civil claims may sometimes be proven by hearsay evidence (statements not made in court and offered for the truth of their contents), but the party relying on such evidence must notify the other party in advance, providing reasons if the source cannot attend trial. Hearsay may be given less weight than evidence from a witness who is available for cross-examination.

Key Term: hearsay evidence
Evidence of a statement made out of court, offered for the truth of its contents, rather than as testimony of a witness directly.

Oral Evidence at Trial

At trial, unless otherwise ordered, witness statements and expert reports previously served stand as the evidence-in-chief (primary account). The court may allow or require oral evidence from a witness to clarify or supplement their written statement. Witnesses and experts may then be cross-examined on their evidence.

Comparing Evidence from Experts and Witnesses

Worked Example 1.1

A client alleges a supplier breached a technical contract term that requires assessment beyond the judge's specialist knowledge. The client wishes to rely on an engineer's evidence. How should you proceed, and what must you show?

Answer:
You must apply for the court’s permission to rely on expert evidence, demonstrating that an expert is reasonably required to address the technical issue. Unless the matter is complex or high value, the court may ask you to suggest a single joint expert with the other party. The expert’s report must be prepared in accordance with the CPR and address the specific issues in the dispute.

Worked Example 1.2

You act for a defendant who disputes the claimant's account of events. Both sides intend to call witnesses of fact. What should you ensure about your witness statements?

Answer:
Each witness statement must set out only facts known to the witness, using their own words and signed by the witness with a statement of truth. The statement must include the required formal details, attach or refer to relevant exhibits, and be served within court-ordered deadlines.

Exam Warning

When preparing expert or witness evidence for trial, ensure that only relevant and admissible content is included. Witness statements must not stray into opinion. Expert evidence must remain independent and not advocate for the party instructing them. Breach of these rules can lead to evidence being excluded or a costs order.

Revision Tip

Always check the court’s directions carefully. Deadlines for permission, disclosure, and service of evidence are strictly enforced in civil litigation.

Key Point Checklist

This article has covered the following key knowledge points:

• Expert evidence can only be used in civil claims with the court’s permission and must be necessary to resolve an issue.
• An expert’s duty is to the court, not the party instructing them.
• The court may direct parties to use a single joint expert, especially in standard or lower-value claims.
• Expert reports must be comprehensive, independent, and ordered by the court.
• Witness statements set out only facts within the witness’s own knowledge and follow strict CPR standards.
• Witness statements must be signed, include a statement of truth, and, where relevant, refer to exhibits.
• All evidence must comply with admissibility and notification requirements, especially where hearsay is intended to be relied on.

Key Terms and Concepts

• expert evidence
• single joint expert
• overriding duty
• expert report
• expert witness
• witness of fact
• hearsay evidence