Civil Procedure – Expert Evidence

Expert Evidence is covered under Part 35 of the Civil Procedure Rules 2010 and parties can either instruct a single joint expert as selected and agreed by both parties, or, failing that, each party may be able (see below) to rely on the evidence of their own expert.

Expert evidence in a civil or a criminal trial is part of the case more often than not. However, the right to use expert evidence is not unfettered and as part of the Court’s case management powers, the Court will restrict expert evidence to that which is:

a)      reasonably required to resolve the proceedings;

b)      whether the use of an Expert is proportional to the case;

c)      whether the use of an Expert furthers the Overriding Objective.

Furthermore, where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert. If the parties cannot agree on a single joint expert, the Court may select the expert from a list prepared or identified by the relevant parties, or the Court can direct that the expert be selected in such other manner as the court thinks fit.

However, if a party wishes to reply upon an Expert report, but fails to disclose it, they may not use the report at the trial or call the expert to give evidence orally unless the court gives permission. This shows that when it comes to court process, complying with timescales is very important.

When an Expert is instructed, the instructing parties must adhere to the Protocol for the Instruction of Experts, to ensure that they consider their duties and that their appointment is valid. This protocol is a sub-set of rules within the overall civil procedure rules, and protocols apply to many different types of claims.

The Expert has a duty to the Court, in that their duty is to help the Court on the matters within the expert’s remit and this duty overrides any obligation to the person from whom those instructions are received.

The form of an Expert’s report must be in writing , unless the Court directs otherwise and the contents of the Expert report must adhere to Rule 35.10 CPR 2010.

 If the Expert’s report does not comply with this Rule, it is unlikely that the Report will be let in, in that format, without the Court’s permission.