Expert evidence forms the basis of many claims that come before the courts. The experts instructed will be of fundamental importance to the success or failure of the case. The legal profession are increasingly aware of the responsibility when instructing an expert to ensure that the expert is aware of their duty to the court.
In the widely reported case Kennedy v Cordia, [Kennedy –v-Cordia (Services) LLP [2016] UKSC 6] the Supreme Court judges recognised the need to regulate expert evidence, which can be highly influential and difficult for the other side to test unless assisted by their own expert. They set out guidance regarding the admissibility of expert evidence, the responsibilities of the legal teams and the court in relation to such evidence and the importance of economy in litigation. They outlined how experts may give both opinion evidence and expert evidence of fact, drawing on their own knowledge and experience of the subject matter including the work and literature of others.
The Supreme Court set out four considerations governing the admissibility of expert evidence. It is, ultimately, for the court to decide, but an expert should be able to answer yes to all four of these questions:
- Will your expert evidence assist the court in its task?
- Do you have the necessary knowledge and experience?
- Are you impartial in your presentation and assessment of the evidence?
- Is there a reliable body of knowledge or experience to underpin your evidence?
The courts now insist that parties to a court action advise the court in advance of the instruction of an expert witness. It is for parties to satisfy the court that the proposed expert has the relevant skill and experience and that it is necessary and reasonable to instruct the expert. If parties fail to obtain the court’s approval or the court is not satisfied as to the expert’s suitability then the party instructing the expert would not be able to recover the expert’s fees as part of the court expenses in the event they are successful with their claim and are seeking to recover the court expenses from their opponent.
In the Dispute Resolution Team we deal with a wide variety of claims including boundary disputes; legal nuisance such as flooding; consumer contracts such as kitchen and bathroom installations etc. We are always looking to maximise the prospects for success for your claim and we can assist you with:
- deciding if an expert is necessary to support your claim
- sourcing the appropriate expert
- instructing the expert with regard to the issues to be investigated
- reviewing the expert report to ensure that it covers all the issues required and is in an appropriate format for the court
