Being an Expert Witness
Richard Wald
Barrister
39 Essex Street Chambers
London
Expert Witness Defined
• a person having appropriate professional qualifications or
expertise who is brought into a case to give his expert opinion as to matters in issue (Re Nossen’s Letter Patent [1969] 1 WLR 638).
Origins of the Expert Witness
• An exception to the rule that a witness must have personal knowledge of the facts from which inferences/opinions are drawn
• Folkes v Chadd (1782) – Lord Mansfield determined whether the demolition of a sea-bank had caused a harbour to decay and allowed the evidence of the engineer Thomas Smeaton, finding:
“The opinion of scientific men upon proven facts may be given by men of science within their own science”.
• R v Silverlock, 1894 – solicitor experienced in old parish registers and wills gave expert handwriting evidence • R v Bunnis, 1964 – police officer gave evidence on the
The Rise of the Expert Witness
• Trial of John Bodkin Adams
• One of the greatest murder trials of all time (Time Magazine April 22, 1957)
• Devlin LJ: “it is a most curious situation,
perhaps unique in these courts, that the act perhaps unique in these courts, that the act of murder has to be proved by expert
Rights of an Expert Witness
• An expert witness’ opinions are admissible as evidence in any civil proceedings, subject to procedural limitations, on any relevant matter, including an issue in the proceedings, on which he is qualified to give expert evidence.
Duties of an Expert Witness
• to help the court on matters within his own expertise: Civil Procedure Rules (“CPR”) 35.3(1).
• this is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid. CPR 35.3(2) (see also Part 33 of the Criminal
Procedure Rules 2010 re experts in criminal proceedings). Procedure Rules 2010 re experts in criminal proceedings).
• An expert should make it clear:
(i) when a question or issue falls outside his expertise; and
(ii)when he is not able to reach a definite opinion, for example because he has insufficient information.
• If an expert changes his view on a material matter, such
change should be communicated to all the parties without delay, and when appropriate to the court
Expert Witnesses – Key Cases
• re the duties and responsibilities of experts see e.g. “Ikarian Reefer” [1993] 2 Lloyd’s Rep. 68
• re independence and conflicts of interest see Toth v Jarman [2006] EWCA Civ 1028 and R (oao Baker) v Hinton Organics [2009] EWHC 3320
• re admissibility of expert evidence see Barings Plc (In 16th • re admissibility of expert evidence see Barings Plc (In
Liquidation) v Coopers & Lybrand (No.2) [2001] Lloyd’s Rep. Bank. 85.
• re form and content of expert’s report see Oldham MBC v GW, PW and KPW [2007] EWHC 136 (Fam)
• re privilege of experts’ discussions Rush & Tomkins Ltd v GLC [1989] A.C. 1280 HL
• re expert witness immunity see Stanton v Callaghan [1999] 2 W.L.R. 745 CA and Meadow v GMC [2006] EWCA Civ 1390
Key Features of CPR Pt 35/CrimPR Pt 33
• Duty to restrict expert evidence (r35.1)
• Overriding duty to the court (r35.3 / r33.2)
• Court’s power to restrict expert evidence (r35.4) • General requirement of written report (r35.5) • Written questions to experts (r35.6)
• Single joint experts (r35.7 / r33.7)
• Directions to provide information (r35.9) • Directions to provide information (r35.9)
• Contents of report ( (r35.10 to comply with PD35) ) • Report may be used by any party (r35.11)
• Discussions between experts (r35.12 / r33.6) • Expert may seek court directions (r35.14) • Court appointed assessors (r35.15)
• See also Protocol for the Instruction of Experts to give Evidence in Civil Claims (October 2009)
The Expert Report
• Identifying issues
• Expressing an opinion on the issues • Pitching the language at the right level
• Expressing an independent view and arguing your conclusion • Setting out your qualifications and experience
• Setting out your qualifications and experience • Including research references
• Using appendices, exhibits, photographs, diagrams and plans • Developing your own report format
• Implications of Part 35
• Experts’ meetings and narrowing issues • The Expert’s Declaration
How to be an Expert Witness
1. Master the facts
2. Understand the underlying principles 3. Control your nerves
4. “Sell yourself”
5. Create an aura of credibility
6. Learn when to speak and when not to 6. Learn when to speak and when not to 7. Listen well
8. Answer the questions asked
9. Keep a careful eye on the tribunal 10. Learn how to use your support team
Expert Witnesses – Final Thoughts
• Differing tribunals and the versatile expert witness
• The particular features of expert evidence in the environmental context
• Expert independence and the case of wind-farm inquiries
• Experts and the argument in favour of an Environmental Court (OSS Group v Environment Agency and DEFRA [2007] EWCA Civ 611 )
