Understanding Expert Evidence in Civil Litigation

In civil claims, you may need evidence from a professionally qualified expert to assist with your case and help the court make a determination.

Expert evidence in civil proceedings is governed by the Civil Procedure Rules (“CPR”) part 35. The Civil Justice Council has also produced ‘Guidance for the Instruction of Experts in Civil Claims’ (2014).

Permission of the court is required to adduce and rely on expert evidence (which can be revoked at any time) and this can either be experts instructed by each party separately or a single joint expert.

They will normally be required to produce a written report and may be required to attend to give oral evidence at any final hearing.

Any written report must take a certain format and include a statement of truth. The expert owes their overriding duty to the court and not to the party who instructed them

You can put written questions to each party’s expert and if there are more than one expert, there should be attempts to narrow and agree issues where possible.

The right expert evidence can make or break a case. Given the importance of expert evidence, there can be a number of pitfalls.

Solicitor Instruction

Experts are instructed on behalf of a client by a solicitor. Any direct access or sharing of information between a client and expert should be discouraged.

The consequences were illustrated in the case of Dana UK AXLE Ltd v Freudenberg FST GmbH [2021] in which one party’s expert evidence was excluded.

This is to ensure independence, transparency and equality of arms between each party’s expert.

All communications should be through the solicitor or at least copied to them and they should be in attendance at any meetings involving the expert and clear evidence can be produced as to the nature of instructions and extent of knowledge and disclosure.

Professional Negligence

Prior to 2011, experts enjoyed immunity for being sued for their role in giving expert evidence in litigation.

This changed with the case of Jones v Kaney [2011] heard by the Supreme Court. The court felt there was no reason to not remove immunity for experts, given that such immunity had been removed for advocates (such as barristers) in 2002.

The court felt that like lawyers, there was no conflict between the duty to the court and the duty to their own client.

Experts now, like lawyers, are professionals who have to adhere to professional standards when providing a service, and can obtain indemnity insurance against any risk of negligence.

The court did not accept that without immunity, experts would fear giving their honest opinion, and this would lead to a floodgate of cases against experts.

As such the expert in this personal injury claim could be sued in negligence for a damaging report suggesting that the claimant had exaggerated his symptoms.

It should be noted that experts are still immune from being sued for defamation (as opposed to negligence).

Expert’s statements of truth also confirm the fact that they (as well as lay witnesses) can be sued for contempt of court if they outright lie in their evidence, although this is a high hurdle to overcome and prove.

Uncontroverted evidence – Tui v Griffiths (2023)

This was a personal injury claim in which the claimant’s expert evidence was not challenged by the defendant in cross-examination as expected and nor did they adduce any of their own expert evidence. Instead challenge was raised in the skeleton argument and on closing submissions – it was alleged that there were deficiencies in the expert evidence so the claimant had failed to prove their case out. The judge at first instance agreed and the claimant lost their case. The matter eventually made its way to the Supreme Court for determination about the fairness of trial – was the trial judge right to reject the claimant’s evidence where it was not ‘illogical, incoherent, inconsistence or based on any misunderstanding of facts or unrealistic assumptions’.

The Supreme Court decided in Tui’s favour.

The court re-confirmed the basic principle that the role of an expert is to assist the court but not to substitute the role of the judge who remains the decision-maker. As part of that role is for the judge to decide whether the evidence of a witness or expert is adequate.

They felt that the general rule was that a party is required to challenge evidence (witness or expert) which is not accepted by cross examination otherwise this would cause unfairness to the witness/expert who is attacked unaware and at the last moment in closing submissions without the opportunity to provide an explanation of their evidence.

In conclusion, the Supreme Court accepted that the rule was flexible and would not always apply, for example:

• where the matter challenged is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain;
• where the evidence of fact is manifestly incredible and an opportunity to explain on cross-examination would make no difference;
• where there is a bold assertion of unsupported opinion without any reasoning to support it;
• where there is an obvious mistake on the face of an expert report;
• where factual witness evidence contradicts expert witness evidence;
• where an expert has been given sufficient opportunity to respond to criticism of, or otherwise clarify, his or her report; and
• where there is a failure to comply with the requirements of CPR Practice Direction 35

Final Words

You need to consider early on whether you will go to the expense of obtaining expert evidence and what value it will add to your case. If expert evidences is essential, then you must ensure you choose the right expert who will hopefully present your case in the best possible way to the court. However, as experts are independent and owe an overriding duty to a court, there is no guarantee that their opinion will be favourable, but you now have recourse should they have acted negligently or dishonestly in giving of expert evidence in civil litigation. Challenge to expert evidence should be done at the earliest opportunity and possibly with your own opposing expert evidence to ensure fairness at any trial is not compromised.

If you need legal advice about expert evidence for your civil claim, contact our Dispute Resolution experts on 0808 271 9413 or request a callback.