Expert Witnesses in Civil Law

A Part 35 Compliant Expert Witness Report is?specifically required for cases that have gone to court. Part 35 of the Civil Procedural Rules provides the opinion of an expert witness on an area of their expertise.

The Expert Witness's duty to the court

As an expert witness in a case, your overriding duty is to assist the court in understanding those aspects of the case which fall within your expertise. This duty is paramount and overrides any obligation to the parties (CPR 35.3 and the Expert Protocol para 4). As an expert you must ensure that you exercise reasonable skill and care in carrying out your instructions and comply with any relevant professional code of practice. You must also be aware that:?

• Your evidence should be your own independent product uninfluenced by the pressures of litigation.
• You should consider any material facts which could diminish your considered opinion, and seek to address those facts in your report. You should also make it clear if a particular question or issue falls outside your area of expertise.
• If you are not able to reach a definite opinion, because for example you consider that insufficient data is available, you must clearly state this in your report. You should also provide an indication that your opinion is only provisional in this respect. Similarly, you should make it clear if a question or issue falls outside your area of expertise.
• You should remember that all questions of law and fact are ultimately for the judge to decide. You should therefore avoid assuming the role of advocate or drawing any final legal or factual conclusions from the facts which are relevant to your area of expertise. The court is seeking the benefit of your objective expert opinion derived from your specialist knowledge.
• You should be aware that any failure by you to comply with the CPR or court orders or any excessive delay for which you are responsible may result in the parties who instructed you being penalised in costs or in extreme cases being debarred from placing your evidence before the court.
• It is, of course, the duty of an expert to help the court on all matters within the expertise of the expert. This duty overrides any obligation to the person from whom instructions have been received (Rule 35.3).
• Expert evidence should, of course, be the independent product of the expert uninfluenced by the pressures of litigation to assist the court in providing objective, unbiased opinion on matters within the expertise of the expert and without assuming the role of an advocate.
• An expert should consider all material facts, including those which might detract from the opinion, and should make it clear:
• When a question or issue falls outside the expert’s expertise; and?
• When the expert is not able to reach a definitive opinion, for example because of insufficient information.
• If, after producing a report, an expert has a change of view on any material matter, that change of view should be communicated without delay.
• The report should be addressed to the court.
• The report should make sure which of the facts are stated are within the expert’s own knowledge.
• There should be a statement setting out the substance of all material instructions, whether written or oral, and that statement should summarise the facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based.
• the instructions that the expert receives from its instructing party(ies), though not privileged, do not have to be disclosed, unless the court so orders. Accordingly, the instructions can be referred to in the report but should not be attached or exhibited to it.
• Where there is a range of opinion on the matters dealt with in the report, the expert should:

1. summarise the range of opinion; and
2. give reasons for the expert’s own opinion

• There should be a statement that the expert understands the duty to the court, has complied with that duty and will continue to comply with that duty.?

If, after producing a report, the expert witness change his/her view on any material matter then he/she must ensure that such change of view is communicated to its instructing party immediately so that it may advise all the parties without delay, and when appropriate the court.

Your duty as an expert witness

As an expert witness in a case, your duty is to assist the court in understanding those aspects of the case which fall within your expertise. You are the parties' appointed expert and therefore owe an equal duty to all parties. You should maintain independence, impartiality and transparency at all times (The Expert Protocol paragraph 17). As an expert you must ensure that you exercise reasonable skill and care in carrying out your instructions and comply with any relevant professional code of practice. In addition you need to make sure you are aware of the following:

• You should consider any material facts which could diminish your considered opinion, and seek to address those facts in your report. You should also make it clear if a particular question or issue falls outside your area of expertise.?
• if you are not able to reach a definite opinion, because for example you consider that insufficient data is available, you must clearly state this in your report. You should also provide an indication that the opinion is only provisional in this respect.
• you should remember that all questions of law and fact are ultimately for the judge to decide. You should therefore avoid assuming the role of advocate or drawing any final legal or factual conclusions from the facts which are relevant to your area of expertise. The court is seeking the benefit of your objective expert opinion derived from your specialist knowledge.

If, after producing a report, you change your view on any material matter then you must ensure that such change of view is communicated to your instructing party.

Clarification

If you require clarification with regard to any aspect of the instructions, you should liaise with the parties’ solicitors in the first instance which should assist you.

However, you have the right to make a written request to the Court for guidance to help you carry out your role as expert witness. CPR 35.14 and the Expert Protocol (paragraph 11) provide details about applying to Court for such guidance. In communications with the court, you should take care at all times to guard against accidentally informing the court about communications or matters between the parties that are without prejudice or privileged.

Conflicts of interest

If you become aware that you may have any potential conflict of interest or you recall a previous involvement in the facts of the case which may lead to any suggestion of partiality or bias, you should contact your instructing party immediately, copying any correspondence to the other instructing solicitors. Once you have accepted these instructions, you should not take any fresh instructions which may create conflict or any suggestion of partiality or bias.

Contents of your report

The Expert Witness's report must contain the mandatory information and details set out in Part 35 of the CPR, the practice direction to Part 35 (paragraph 3) and the Expert Protocol (paragraphs 13 and 14). These also provide guidance for the Expert Witness. Note in particular:

• you are required to address your report to the court.
• your report must contain a statement that you understand and have complied with your duty to the court.
• your report must be verified by a statement of truth in a prescribed form which is mandatory and cannot be modified "I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not.?Those that are within my own knowledge I confirm to be true.?The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth".

Disclosure, privilege and confidentiality

Once you have served your final report, all parties can put written questions to you about your report. You should be aware that:

• The parties only have one opportunity each to ask questions which have to be provided to you within 21 days of your final report being served; note that the court does have the authority to vary this.
• Your responses to any of the questions will be treated as part of your report.
• The questions can only seek clarification of your report. If any party's questions fall outside this remit, for example, if you consider that some or all of the questions are oppressive in number, content or are otherwise inappropriate, an application can be made to court seeking an order that all or some of the questions be disallowed.