Related Sector: Expert Witness

The Supreme Court has recently given clear guidance on when expert evidence is allowed in court.
 
Who would have thought that a bruised wrist from a fall on an icy footpath in 2010 would have led to the Supreme Court giving useful guidance on when expert evidence would be allowed in a court. As the case started in Scotland, the judges refer to skilled witnesses but that's the Scottish for expert witnesses. The principles apply throughout the UK.

In essence, the 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 othe importance of economy in
litigation. They said experts may give both pinion 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 four considerations are set out at para.44 of the judgment. Ultimately it's for the court to decide, but as an expert you should be able to answer yes to all four:

  • 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?

If you are unsure, you should discuss the matter with your instructing solicitor.

You should read the full judgment as there is helpful guidance in respect of each of the four considerations. Full details are on the Supreme Court website.

This article was first published  by Mark Solon in  https://www.linkedin.com/pulse/new-expert-witness-guidance-mark-solon on 24th March 2016


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1 comments
  • Dr Phil Barber - Consultant Respiratory Physican

    02 Jun 2016 11:49

    Hmm. It has a slight flavour of the 'bleeding obvious'. I would be interested to know the circumstances under which an expert might appear whose evidence wouldn't assist, who didn't have the necessary knowledge and experience, and who couldn't rely on a body of knowledge to assist them. Impartiality? Now there's an interesting one. How do you avoid experts 'joining the team', and adopting a gladiatorial approach to their opposite numbers, natural human instincts which are further encouraged by the adversarial process we see being played out before us? They are to be avoided at all costs though, in the interests of truth and justice. There is of course a safeguard - an awareness that pushing the boat out even an inch too far is ill-advised, and will result in the very cases on which we are least sure of our ground going the distance, with the prospect of a difficult cross-examination. At the same time, a degree of courage is sometimes required to maintain an honest position on grounds which can be somewhat ill-defined. I did once respond, very unwisely, to a direct question from a judge by saying that 'if it's got feathers and quacks it's probably a duck'. I hope never to repeat that error, but sometimes the 'evidence base' is not the whole answer.

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