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The use of expert evidence in fast track and multi-track cases

09 Jun 2008, 15:17 by Kate Richards

Labels: barristers, civil, evidence, expert, fast-track, judge, multi-track, solicitors

The Protocol for the Instruction of Experts to Give Evidence in Civil Claims (CPR Part 35 Protocol) states:

"Expert witnesses perform a vital role in civil litigation. It is essential that both those who instruct experts and experts themselves are given clear guidance as to what they are expected to do in civil proceedings."

This blog will aim to provide a summary of what is required by barristers and solicitors who are instructed on fast track or multi-track cases involving experts.

The first thing to bear in mind when an expert has been instructed is that generally expert evidence will be presented in a written report. This is unless the court directs otherwise. For claims allocated to the fast track an expert witness is not required to attend court unless it is necessary in the interests of justice. In particular, the court will have regard to the proportionality of the cost of attendance of the expert(s) to the value and complexity of the claim. Written questions may be put to the expert within 28 days of the service of the report. It is important to note that these questions must be for clarification purposes only unless by permission of the court or consent of the other party.

Usually a single joint expert will be appointed in fast track cases. However, in multi-track cases the appointment of separate experts is often appropriate where there are a number of substantial issues. For example, this can be particularly appropriate in clinical negligence cases where there may be two schools of thought concerning the medical issues involved.

Where expert evidence is required to be given orally at court the general principles governing witness handling are fundamental. Specifically with expert evidence there may be matters that are extremely complex in nature and parts of a report which are unintelligible. One of the main jobs for the advocate in asking supplementary questions in examination-in-chief should therefore be to ensure that the Judge can understand the expert's evidence!

In cross-examination of an expert witness an effective way of challenging their evidence is to prove that they are outside their expertise or that they are incompetent. It is also essential to dispute the validity of any inferences drawn in the formation of an expert opinion. One way of achieving this may be to identify the facts and instructions upon which the expert's evidence is based and demonstrate the falsity of these, thus in turn undermining the opinion. Unlike most other evidence, expert evidence usually requires re-examination. Clarification is often required given the likelihood for misunderstanding what has been stated in cross-examination.

Most importantly, in all civil cases where expert evidence is required mastery of the subject matter of the expertise is vital. A conference with the expert prior to the hearing can be a useful method of explaining areas of unfamiliarity.

Written by K Richards.

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All Change Please...

31 Mar 2008, 16:08 by Kate Richards

Labels: employer, employment, european-court, fast-track, house-of-lords, tribunal

It seems that fundamental changes in the employment law are on the way (albeit some may say long overdue). The Employment Law Bill 2007, which is currently being debated in the House of Lords is set to repeal the Employment Act 2002 (Dispute Resolution) Regulations 2004.

 The 2004 Regulations introduced the statutory disciplinary and grievance procedures in an attempt to reduce the employment litigation. For those practising law in this area it is abundantly clear that this has not been the case. Instead research conducted by the Department for Trade and Industry shows that under the Regulations disputes have become more formalised with the involvement of solicitors and barristers at earlier stages.

The Bill proposes a new non-regulatory system of employment procedures to encourage the informal resolution of disputes and an increased involvement by ACAS. In addition, increased powers will be given to tribunals' to reach a determination without a hearing.

 Other changes proposed within the Bill include:

The Bill is due to receive Royal Assent this summer and is currently scheduled to come into force in stages from October 2008.

Written by K Richards

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