Civil claim procedures - Evidence (expert and witness)

Learning Outcomes

This article explains the rules and procedures governing expert and witness evidence in civil claims, including:

• Distinguishing between expert evidence and evidence of fact, and understanding the different roles and duties of experts and witnesses
• Identifying when expert evidence is reasonably required and obtaining permission under CPR 35, including the use of single joint experts
• Instructing experts effectively and ensuring expert reports comply with CPR 35 and PD 35, including duty and truth statements
• Managing expert evidence through written questions (CPR 35.6), experts’ meetings and joint statements (CPR 35.12), and concurrent expert evidence at trial
• Preparing, formatting, and serving compliant witness statements and witness summaries under CPR 32 and PD 32, including statements of truth and sanctions for non‑compliance (CPR 32.10)
• Using and challenging hearsay evidence in civil proceedings, including serving hearsay notices under CPR 33.2 and applying the Civil Evidence Act 1995, s 4 factors on weight
• Securing the attendance and cooperation of witnesses through witness summonses (CPR 34) and managing oral evidence at trial proportionately
• Applying these procedural rules and evidential principles to realistic SQE2-style scenarios to meet client objectives and manage costs effectively

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, with a focus on the following syllabus points:

• 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
• Permission requirements for expert evidence (CPR 35.4) and limits on issues/number of experts
• Content of expert reports (PD 35, paras 3.1–3.2) and experts’ statements of duty and truth
• Written questions to experts (CPR 35.6), experts’ discussions and joint statements (CPR 35.12)
• Hearsay notices and timing (CPR 33.2) and factors affecting weight (Civil Evidence Act 1995, s 4)
• Witness statements content/format (PD 32), statements of truth (CPR 22), and sanctions (CPR 32.10)
• Witness summaries and witness summonses (CPR 32.9 and CPR 34), and use at trial

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.

In civil cases the standard of proof is the balance of probabilities, and the burden of proof rests with the party asserting a fact. Relevance governs admissibility: relevant evidence is generally admissible unless excluded by a rule or statute. Even where evidence is admissible, the court assesses weight in light of its reliability and the context in which it is given. The case management regime emphasises proportionality, so the court will actively control evidence—particularly expert opinion—to what is reasonably required to resolve the case justly and at proportionate cost.

Key Term: statement of truth
A declaration required by CPR 22 confirming that the maker believes the facts stated are true; a false statement made without an honest belief in its truth may expose the maker to proceedings for contempt of court.

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.

Opinion evidence from non‑experts is generally inadmissible, but experts may give opinion within their field. The court will confine expert assistance to genuinely specialist issues and will reject attempts to use experts as advocates or to bolster facts that can be proved by lay witnesses or documents.

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. Applications are usually addressed at allocation/directions stages via directions questionnaires and case management conferences.

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.

Key Term: concurrent evidence
Also known as “hot‑tubbing”: a procedure where experts give oral evidence concurrently, usually issue by issue, to focus areas of agreement and dispute efficiently.

When seeking permission (CPR 35.4), parties must identify the field and issues for expert evidence, the proposed expert where practicable, and provide an estimate of cost. Permission orders will often specify the issues to be addressed, limits on experts, the timetable for reports, and whether experts are to meet and produce a joint statement.

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. The “General Guidance for the Instruction of Experts in Civil Claims” (Civil Justice Council) is commonly referred to in practice and emphasises independence, transparency, and compliance with CPR 35.

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

Instructions to experts are not privileged against disclosure as a class (CPR 35.10(4)), although cross‑examination on instructions requires the court’s permission and will generally be allowed only where there are reasonable grounds to consider the expert’s statement of instructions inaccurate or incomplete (PD 35, para 5). Parties should therefore ensure instructions are accurate, neutral in tone, and identify the factual and legal issues clearly.

Instructing an Expert

A carefully drafted letter of instruction should identify the expert’s remit, the specific questions to be answered, the issues in dispute, the material provided, any assumptions to be made, and the applicable procedural requirements (including the need for the duty and truth statements). A realistic timescale and fee estimate should be agreed. Parties often share a single joint set of instructions to a single joint expert and must each provide any relevant material requested.

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, calculating loss of profits, forensic accounting, road‑traffic reconstruction, engineering causation, IT/software failure analysis, and assessing technical faults in construction disputes. Some cases require more than one discipline (for example, liability and quantum experts; or engineers plus forensic accountants). The court will restrict duplication and can refuse or limit expert evidence where disproportionate.

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. Judges increasingly use focused directions: experts’ reports exchanged sequentially or simultaneously, followed by written questions and an experts’ meeting leading to a joint statement narrowing issues (CPR 35.12). In appropriate cases, the court may direct concurrent expert evidence to assist efficient resolution of technical disputes.

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. With a single joint expert, both parties may put written questions (CPR 35.6), and either party may cross‑examine the expert at trial (subject to the court’s case management decisions). Where a party is dissatisfied with a single joint expert’s views, they may seek permission to instruct their own expert, but must show that it is necessary in the interests of justice—simple disagreement is rarely enough.

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. The report should also identify any literature relied upon, make clear what facts are within the expert’s own knowledge, and, where examinations or tests have been carried out by others, give their qualifications and confirm whether supervision was provided (PD 35). Where there is a recognised range of reasonable opinion, the expert should summarise that range and explain the basis for their own conclusion.

Communication and Clarification

The parties may put written questions to an expert after a report is disclosed, seeking clarification or challenging methodology. Questions must be proportionate and be put within 28 days of service unless the court orders otherwise (CPR 35.6). Answers form part of the expert’s evidence and may narrow issues further. Experts may be directed to meet and produce a joint statement identifying points of agreement and disagreement, and explaining the basis for those disagreements. Failure to answer proper questions may lead to sanctions, including costs or restrictions on relying on the report.

Key Term: written questions to an expert
Focused questions permitted under CPR 35.6, asked within 28 days of service of the expert’s report to clarify conclusions, methodology, or assumptions; the answers form part of the expert evidence.

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.

Where it is not possible to obtain a full witness statement, the court may permit service of a witness summary setting out the topics on which the witness is expected to give evidence and why a full statement cannot be served (CPR 32.9). If attendance is in doubt, a witness summons may be issued to compel attendance at trial (CPR 34).

Key Term: witness summary
A summary served where a party cannot obtain a full witness statement, identifying the substance of the evidence and the reasons why a complete statement cannot be provided (CPR 32.9).

Key Term: witness summons
A court order requiring a witness to attend court or produce documents; normally served at least seven days before the hearing, with conduct money offered (CPR 34).

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.

Formatting and presentation are governed by PD 32. The statement should be headed with the case details, numbered paragraphs, and identify any documents used to refresh memory where relevant. The statement of truth must use the correct wording. False statements verified by a statement of truth without an honest belief in their truth expose the maker to potential contempt proceedings, and lawyers should warn witnesses accordingly. In some specialist courts (e.g., the Business and Property Courts) additional requirements apply to trial witness statements; always check any applicable specialist practice directions.

If a party fails to serve a witness statement for a witness, that witness may not be called to give oral evidence unless the court gives permission (CPR 32.10). Where a witness requires an interpreter, the statement should identify the interpreter and the language used.

Key Term: statement of truth
The formal declaration (CPR 22) verifying facts in a witness statement or statement of case; making a false statement without an honest belief in its truth may be contempt of court.

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. It is admissible under the Civil Evidence Act 1995, but the court will consider reliability and weight.

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.

Where the maker of a hearsay statement is not called, a hearsay notice must be served identifying the hearsay, confirming that the witness will not be called, and giving reasons (CPR 33.2). If the hearsay is contained in a witness statement of a person who is not to be called, service of the statement with that notification suffices. The notice must be served no later than the last date for serving witness statements. The other party may require the maker to attend for cross‑examination or serve notice of intention to challenge the hearsay’s credibility. If notice requirements are not met, the hearsay remains admissible but the failure may affect weight and costs.

Key Term: hearsay notice
A notice served under CPR 33.2 identifying hearsay evidence that a party intends to rely on at trial and explaining why the maker will not be called.

The court estimates the weight of hearsay having regard to any circumstances affecting reliability (Civil Evidence Act 1995, s 4). Factors include whether it would have been reasonable and practicable to call the maker; whether the statement was made contemporaneously; whether there is multiple hearsay; whether anyone had a motive to conceal or misrepresent; whether the statement was edited, collaborative, or made for a particular purpose; and whether the way the evidence is adduced impedes proper evaluation.

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, followed by any necessary re‑examination on matters arising out of cross‑examination. The court will police proportionality—e.g., time limits for examination and the number of witnesses.

Where witness statements are used as evidence‑in‑chief, a witness may only supplement their statement or give additional evidence on new matters with the court’s permission. The court can exclude oral evidence where a statement has not been served in time (CPR 32.10), and it can limit expert oral evidence to what is necessary, including directing concurrent evidence for experts. The court may also make directions for remote attendance or video link where appropriate.

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.

Worked Example 1.3

Your key witness has moved abroad and cannot attend trial. You served their signed witness statement but cannot secure their attendance. What steps must you take to rely on the statement, and how will the court treat it?

Answer:
Serve a hearsay notice under CPR 33.2 by the last date for witness statements, identifying the hearsay and explaining why the witness cannot attend. The court will admit the statement as hearsay but will assess weight under Civil Evidence Act 1995, s 4. Expect reduced weight if the statement is not contemporaneous, involves multiple hearsay, or the other side is unable to cross‑examine.

Worked Example 1.4

After exchange of experts’ reports on quantum, you consider the claimant’s accountancy expert has used an inappropriate discount rate and omitted relevant data. How can you challenge this before trial?

Answer:
Serve focused written questions within 28 days of service of the report under CPR 35.6 to clarify methodology and data. Request an experts’ meeting with a joint statement (CPR 35.12) to narrow or crystallise differences. If concerns persist, seek appropriate trial directions (e.g., concurrent evidence on the disputed issue) and be ready to cross‑examine on the answers and joint statement.

Worked Example 1.5

A reluctant former employee holds key factual knowledge about the defective installation. They are refusing to attend voluntarily. What can you do to secure their attendance and ensure the court can hear their evidence?

Answer:
Apply for a witness summons under CPR 34, allowing sufficient time for service (normally at least seven days before the hearing), and tender conduct money. The summons can compel attendance and/or production of documents. Non‑compliance risks contempt.

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. Missing the deadline for witness statements can prevent a witness from giving oral evidence (CPR 32.10). If relying on hearsay where the witness will not be called, serve a compliant CPR 33.2 notice in time or risk adverse weight and costs consequences.

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, and their report must comply with CPR 35 and PD 35.
• The court may direct parties to use a single joint expert, especially in standard or lower-value claims.
• Parties can put written questions to experts (CPR 35.6), and experts may be required to meet and produce a joint statement (CPR 35.12).
• Expert reports must be comprehensive, independent, reasoned, and conclude with the required duty and truth statements.
• Parties must serve witness statements for any witness they intend to call; failure to do so may bar oral evidence (CPR 32.10).
• Witness statements must be in the witness’s own words, contain only admissible facts, and include a statement of truth per CPR 22 and PD 32.
• Hearsay is admissible but may attract less weight; serve a hearsay notice under CPR 33.2 if the maker will not be called.
• The court determines the weight of hearsay by reference to reliability factors in Civil Evidence Act 1995, s 4.
• The court controls oral evidence at trial, including cross‑examination and any concurrent expert evidence.
• Where a witness cannot provide a full statement, a witness summary may be used (CPR 32.9); reluctant witnesses can be compelled by witness summons (CPR 34).
• Non‑compliance with directions or procedural rules may result in exclusion of evidence and adverse costs orders.

Key Terms and Concepts

• expert evidence
• single joint expert
• overriding duty
• expert report
• expert witness
• written questions to an expert
• concurrent evidence
• witness of fact
• witness summary
• witness summons
• statement of truth
• hearsay evidence
• hearsay notice