How Far an Expert to Go in a Trial or Tribunal!
Like in fingerprint or DNA tests heard in serious criminal cases, the work of accident analysis, intellectual property issues and medical negligence cases are typical civil examples where expert witness is taken place. The importance of the expert witness function applies equally in the construction field, where the disputes invariably involve professional negligence, delay impact analysis, prolongation costs and the like.
The key distinguishing feature is that the expert is free to use his own expertise to investigate the question that has been referred to him, taking account of the submissions of the parties as he sees fit, whereas judges and arbitrators are required to decide on the basis of evidence made by the parties. This is one of the greatest strengths of expert involvement, particularly when the nature of the issue is very technical or scientific. Therefore, the expert is not just appointed to hear the parties' various contentions and to select between them, but to investigate the facts and to apply his expertise to decide the answer to the question that has been referred to him.
Accordingly, the judge or tribunal can call upon experts to evaluate a case, technically, financially or otherwise in order to provide the court or the tribunal with an unhesitant knowledge on the facts and issues it is judging. There is no limit to the number of fields that individuals can be experts, for instance even a botanist may be called to the stand if a certain kind of flower was found at the crime scene. However, the use of expert witness is sometimes criticized because in civil trials, they are often used by both sides to advocate differing positions, and it is left up to a jury of laymen to decide which expert witness to pick up. It is also now common in international construction arbitrations to find that quantity surveyors have been deployed from a very early stage in preparation of claims. Often such consultants provide individual inputs in certain aspects of the dispute, such as eligibility and quantum. Sometimes these consultants also appear as the parties’ experts, providing reports and giving evidence at hearing and may eventually provide fake testimony in order to convince a jury, which is indeed a worse case eventuality. However, these consultants must be distinguished from experts unconnected with the parties such as specialists, with a reputation for their expertise in a specific area.
The purpose of expert witness is to tell the tribunal something that it is not sure about, ie what the reality is. It is not to tell the tribunal the facts or to argue the case but to dig out the specific issues that may be sensitive to the outcome of the trial. For instance, an expert might be called upon by a tribunal to give opinion as to whether a particular crack is related to structure or workmanship, or whether it is due to a design defect, lack of supervision, unsound construction or a combination. This is why the expert approach is in many cases retrospective or forensic in nature. According to HH Lloyd Humphrey, QC there should be a clear line between the facts which the expert considers relevant for the purposes of forming an opinion and the facts which are not consistent with various hypotheses. Where there is no real doubt that an event occurred but there is no real evidence to prove it or the sequence of such events then expert evidence can assist the tribunal to decide what probably happened. Thus it is necessary to establish the actual or presumed knowledge of the tribunal as it will affect the reception of expert evidence, he argues.
An expert, who is truly independent, will provide a candid answer to the question which the expert has been engaged to answer. Expert opinions should be independent regardless of the pressures of litigation also otherwise a judge may reject expert evidence on the basis that it does not come from a wholly independent source. If the experts are not properly independent then they will be mere advocates and their opinion will not count for as much, if they count for anything. Recently there has been a tendency to treat expert evidence as only admissible or credible if it comes from an independent source. In rare cases, experts can also give factual evidence, such as the evidence of the expert which is of what he or she has seen of the defective structure for example. Opinion evidence setting out what the expert herself would have done in a given situation is not however admissible. Therefore opinion which relate to day today life or matters of observation by layman does not fall within the definition of expert evidence. Also the court will not receive expert evidence relating to legal expertise as the judge will be taken to know the law.
Hence, the essential qualities of an expert include not only breadth and depth of relevant experience but also an ability to be self-critical so as to produce a balanced judgment. He or she must therefore be able to use his expertise, critically evaluate a given case, show their merits of demerits in application, and help the tribunal understand the pros and cons under each scenario, without switching onto a counsel that is apparently biased towards one party. The need for such independence is now brought home to an expert by the new obligations set out in CPR, which stands for Civil Procedure Rules, which now apply in the courts in England and Wales. As such, it is the duty of an expert to help the court on matters within his expertise and this duty overrides any obligation to person/s from whom he has received instructions or by whom he is paid. Accordingly, an expert's report must comply with the requirements set out in the relevant practice direction. At the end of an expert's report, there must be a statement that (a) the expert understands his duty to the court; and (b) he has complied with that duty. The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written. This means that there should be no expert evidence at all unless it will help the court and more than one expert in any one speciality unless this is necessary for some real purpose.
Another aspect is that whether a party has any obvious right to an expert? The rule 35.4 deals with the court's power to restrict expert evidence. It provides that no party may call an expert without court's permission. When a party applies for permission under this rule he must identify (a) the field in which he wishes to rely on expert evidence and (b) where practicable the expert in that field on whose evidence he wishes to rely. Also, if permission is granted under this rule, it shall be in relation only to the expert so named. For example, if a renowned engineer is appointed as arbitrator whose background is fluids, it would be unnecessary for the parties to adduce an expert on fluid mechanics. However, if the subject-matter is outside experience of the tribunal then the parties must demonstrate that the tribunal will need that evidence. Although the expert evidence is there to inform the tribunal and, of course, there will be some cases in which the parties will wish to ensure that the tribunal is up to date with the latest knowledge. For instance, the arbitrator may be a quantity surveyor who had spent the whole of his professional life on claims, particularly in building projects but never had to work on off shore gas projects, so that it was obviously useful to have experts.
Courts therefore sometimes defer granting permission to call an expert until it is clear for what purpose expert evidence is required. In many cases the need for the expert and the precise point upon which expert opinion will only become apparent either after discovery or even after the exchange of primary witness statements of fact. The expert owes a moral obligation to bring back the right path in case he comes across that the motion is on wrong track as far as the subject under consideration is concerned. Experts must not be placed in the invidious position of being criticised for having asked (and answered) the wrong question. If there is more than one way of looking at a subject then both questions should be posed to see the extent to which the answers may differ. The expert should leave it to the tribunal to decide the question on the basis of the reasoned opinions. Indeed an expert has no authority to compromise or to dominate the sessions but they owe a moral right to ask the court for directions in cases where necessary information is not made available to them. The expert is a servant not of the client but of the court or tribunal and it confers immunity from suit.
Although the courts and other tribunals have long controlled the manner in which experts carry out their functions of meeting, reporting and, ultimately, giving oral evidence before the tribunal, a more systematic approach to such control and regulation can be dated from the landmark case of The Ikarian Reefer - National Justice Compania Naviera SA v Prudential Assurance Company Ltd (1993). In that case Mr. Justice Creswell of the Commercial Court listed seven duties and responsibilities of expert witnesses in civil cases, emphasising that the evidence should be independent, unbiased and related to matters within the expertise, stating the facts or assumptions on which his opinion is based, and considering facts which could detract from his opinion. An expert should state when a question falls outside his expertise and if data available is insufficient. If, after exchanging reports, he changes his view, this should be communicated to the other side and the court and where he refers to any documents these must be provided at the time of exchanging reports.
In 2002 the UK Court of Appeal Judge, Dame Elizabeth Butler-Sloss, writing about expert medical witnesses, described expert witness as a ‘crucial resource’ and ‘without them we (the Judges) could not do our job’. The traffic is opposite side also. In London Underground Ltd v Kenchington Ford Plc & Others [1998] 63 ConLR 1, HHJ Wilcox criticised the lack of independence of one expert. He said that he "ignored his duty to both the court and his fellow experts" and "continued to assume the role of advocate of his client's cause". The judge concluded that the evidence was invalid and unscientific.
Reference:
His Honour Judge Humphrey Lloyd, QC (2001) Expert Evidence; Hong Kong Society of Construction Law and of the East Asia Branch of the Chartered Institute of Arbitrators, Hong Kong.
Richard Wilmot-Smith, QC (2006) Construction Contracts, Law and Practice, Oxford.
The key distinguishing feature is that the expert is free to use his own expertise to investigate the question that has been referred to him, taking account of the submissions of the parties as he sees fit, whereas judges and arbitrators are required to decide on the basis of evidence made by the parties. This is one of the greatest strengths of expert involvement, particularly when the nature of the issue is very technical or scientific. Therefore, the expert is not just appointed to hear the parties' various contentions and to select between them, but to investigate the facts and to apply his expertise to decide the answer to the question that has been referred to him.
Accordingly, the judge or tribunal can call upon experts to evaluate a case, technically, financially or otherwise in order to provide the court or the tribunal with an unhesitant knowledge on the facts and issues it is judging. There is no limit to the number of fields that individuals can be experts, for instance even a botanist may be called to the stand if a certain kind of flower was found at the crime scene. However, the use of expert witness is sometimes criticized because in civil trials, they are often used by both sides to advocate differing positions, and it is left up to a jury of laymen to decide which expert witness to pick up. It is also now common in international construction arbitrations to find that quantity surveyors have been deployed from a very early stage in preparation of claims. Often such consultants provide individual inputs in certain aspects of the dispute, such as eligibility and quantum. Sometimes these consultants also appear as the parties’ experts, providing reports and giving evidence at hearing and may eventually provide fake testimony in order to convince a jury, which is indeed a worse case eventuality. However, these consultants must be distinguished from experts unconnected with the parties such as specialists, with a reputation for their expertise in a specific area.
The purpose of expert witness is to tell the tribunal something that it is not sure about, ie what the reality is. It is not to tell the tribunal the facts or to argue the case but to dig out the specific issues that may be sensitive to the outcome of the trial. For instance, an expert might be called upon by a tribunal to give opinion as to whether a particular crack is related to structure or workmanship, or whether it is due to a design defect, lack of supervision, unsound construction or a combination. This is why the expert approach is in many cases retrospective or forensic in nature. According to HH Lloyd Humphrey, QC there should be a clear line between the facts which the expert considers relevant for the purposes of forming an opinion and the facts which are not consistent with various hypotheses. Where there is no real doubt that an event occurred but there is no real evidence to prove it or the sequence of such events then expert evidence can assist the tribunal to decide what probably happened. Thus it is necessary to establish the actual or presumed knowledge of the tribunal as it will affect the reception of expert evidence, he argues.
An expert, who is truly independent, will provide a candid answer to the question which the expert has been engaged to answer. Expert opinions should be independent regardless of the pressures of litigation also otherwise a judge may reject expert evidence on the basis that it does not come from a wholly independent source. If the experts are not properly independent then they will be mere advocates and their opinion will not count for as much, if they count for anything. Recently there has been a tendency to treat expert evidence as only admissible or credible if it comes from an independent source. In rare cases, experts can also give factual evidence, such as the evidence of the expert which is of what he or she has seen of the defective structure for example. Opinion evidence setting out what the expert herself would have done in a given situation is not however admissible. Therefore opinion which relate to day today life or matters of observation by layman does not fall within the definition of expert evidence. Also the court will not receive expert evidence relating to legal expertise as the judge will be taken to know the law.
Hence, the essential qualities of an expert include not only breadth and depth of relevant experience but also an ability to be self-critical so as to produce a balanced judgment. He or she must therefore be able to use his expertise, critically evaluate a given case, show their merits of demerits in application, and help the tribunal understand the pros and cons under each scenario, without switching onto a counsel that is apparently biased towards one party. The need for such independence is now brought home to an expert by the new obligations set out in CPR, which stands for Civil Procedure Rules, which now apply in the courts in England and Wales. As such, it is the duty of an expert to help the court on matters within his expertise and this duty overrides any obligation to person/s from whom he has received instructions or by whom he is paid. Accordingly, an expert's report must comply with the requirements set out in the relevant practice direction. At the end of an expert's report, there must be a statement that (a) the expert understands his duty to the court; and (b) he has complied with that duty. The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written. This means that there should be no expert evidence at all unless it will help the court and more than one expert in any one speciality unless this is necessary for some real purpose.
Another aspect is that whether a party has any obvious right to an expert? The rule 35.4 deals with the court's power to restrict expert evidence. It provides that no party may call an expert without court's permission. When a party applies for permission under this rule he must identify (a) the field in which he wishes to rely on expert evidence and (b) where practicable the expert in that field on whose evidence he wishes to rely. Also, if permission is granted under this rule, it shall be in relation only to the expert so named. For example, if a renowned engineer is appointed as arbitrator whose background is fluids, it would be unnecessary for the parties to adduce an expert on fluid mechanics. However, if the subject-matter is outside experience of the tribunal then the parties must demonstrate that the tribunal will need that evidence. Although the expert evidence is there to inform the tribunal and, of course, there will be some cases in which the parties will wish to ensure that the tribunal is up to date with the latest knowledge. For instance, the arbitrator may be a quantity surveyor who had spent the whole of his professional life on claims, particularly in building projects but never had to work on off shore gas projects, so that it was obviously useful to have experts.
Courts therefore sometimes defer granting permission to call an expert until it is clear for what purpose expert evidence is required. In many cases the need for the expert and the precise point upon which expert opinion will only become apparent either after discovery or even after the exchange of primary witness statements of fact. The expert owes a moral obligation to bring back the right path in case he comes across that the motion is on wrong track as far as the subject under consideration is concerned. Experts must not be placed in the invidious position of being criticised for having asked (and answered) the wrong question. If there is more than one way of looking at a subject then both questions should be posed to see the extent to which the answers may differ. The expert should leave it to the tribunal to decide the question on the basis of the reasoned opinions. Indeed an expert has no authority to compromise or to dominate the sessions but they owe a moral right to ask the court for directions in cases where necessary information is not made available to them. The expert is a servant not of the client but of the court or tribunal and it confers immunity from suit.
Although the courts and other tribunals have long controlled the manner in which experts carry out their functions of meeting, reporting and, ultimately, giving oral evidence before the tribunal, a more systematic approach to such control and regulation can be dated from the landmark case of The Ikarian Reefer - National Justice Compania Naviera SA v Prudential Assurance Company Ltd (1993). In that case Mr. Justice Creswell of the Commercial Court listed seven duties and responsibilities of expert witnesses in civil cases, emphasising that the evidence should be independent, unbiased and related to matters within the expertise, stating the facts or assumptions on which his opinion is based, and considering facts which could detract from his opinion. An expert should state when a question falls outside his expertise and if data available is insufficient. If, after exchanging reports, he changes his view, this should be communicated to the other side and the court and where he refers to any documents these must be provided at the time of exchanging reports.
In 2002 the UK Court of Appeal Judge, Dame Elizabeth Butler-Sloss, writing about expert medical witnesses, described expert witness as a ‘crucial resource’ and ‘without them we (the Judges) could not do our job’. The traffic is opposite side also. In London Underground Ltd v Kenchington Ford Plc & Others [1998] 63 ConLR 1, HHJ Wilcox criticised the lack of independence of one expert. He said that he "ignored his duty to both the court and his fellow experts" and "continued to assume the role of advocate of his client's cause". The judge concluded that the evidence was invalid and unscientific.
Reference:
His Honour Judge Humphrey Lloyd, QC (2001) Expert Evidence; Hong Kong Society of Construction Law and of the East Asia Branch of the Chartered Institute of Arbitrators, Hong Kong.
Richard Wilmot-Smith, QC (2006) Construction Contracts, Law and Practice, Oxford.
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