What is an Expert Witness?
An Expert Witness is a person whose level of specialised knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.
This is expressed as opinion evidence in a report used to assist in the resolution of a dispute. It is intended this opinion leads to an early resolution of the dispute. Critical to the role of the expert witness is independence.
Pre-action Independent Report
To enable the Litigant in Person to best share the merits of their claim and to calculate its value with the intention of:
- encouraging the exchange of early and full information about the expert issues involved in a prospective legal claim;
- enabling the parties to avoid or reduce the scope of litigation by agreeing the whole or part of an expert issue before commencement of proceedings; and
- supporting the efficient management of proceedings where litigation cannot be avoided.
Small Claims Track Independent Report
Try and keep the cost of the report proportionate to the value of the claim.
Whatever expert you use you choose to use, you should ask your expert to include the following:
- what the problem is
- what the cause of the problem is (bad workmanship, inherent defect, faulty components)
- what needs to be done to put the matter right
- how much this will cost
- if relevant, photographs, diagrams, plans
Party Appointed Expert Report
On the Direction of the Judge after a claim and defence is filed. An expert instructed by just one party in a claim, and whose opinion is to be put before the court, is a party-appointed expert.
Single Joint Expert Report
On the Direction of the Judge after a claim and defence is filed. Where the expert witness is instructed by all the parties in a claim, then the single joint expert role applies.
Expert statement of truth
"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."
Understanding the role of the Expert in the claim process
- Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code of ethics.
However when they are instructed to provide a report of evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying them. Experts must not serve the exclusive interest of those who retain them.
- Experts are aware of the overriding objective that courts deal with cases justly. This includes dealing with cases proportionately, expeditiously and fairly.
- Experts are under an obligation to assist the court so as to enable them to deal with cases in accordance with the overriding objective. However the overriding objective does not impose on experts any duty to act as mediators between the parties or require them to trespass on the role of the court in deciding facts. (CPR 1.1).
- Experts should provide opinions which are independent, regardless of the pressures of litigation. In this context, a useful test of "independence" is that the expert would express the same opinion if given the same instructions by an opposing party.
- Experts should confine their opinions to matters which are material to the disputes between the parties and provide opinions only in relation to matters which lie within their expertise.
- Experts should take into account all material facts before them at the time that they give their opinion. Their reports should set out those facts and any literature or any other material on which they have relied in forming their opinions. They should indicate if an opinion is provisional, or qualified, or where they consider that further information is required or if, for any other reason, they are not satisfied that an opinion can be expressed finally and without qualification.
An Expert Witness may need to be involved in court proceedings and may be called to give evidence.