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Expert witness

"The role of the expert can therefore prove an exercise of balancing the expectations of the party who has instructed them with their overriding duty to the court."

Expert witness

Expert evidence is often required in construction disputes and is intended to assist the court when it is asked to consider matters on which it does not have a sufficient degree of knowledge. Frequently construction disputes can require more than one expert, although the use of expert evidence is restricted to that which is reasonably required to resolve the dispute.

The overriding duty of the expert witness is to assist the court on matters within their expertise. This duty supersedes the expert’s duty to the party instructing them.

The role of the expert can therefore prove an exercise of balancing the expectations of the party who has instructed them with their overriding duty to the court.

Types of expert witnesses

A single expert witness is appointed to act for one party in a dispute. A single joint expert witness is jointly appointed either by the court or by all parties to a dispute to provide evidence on a particular issue on which all the parties to the dispute wish to submit expert evidence (see Instructing an expert).

An expert witness is not the same as an expert adviser. The obligations of an expert witness and expert adviser differ substantially concerning duties, privilege (see Expert reports) and communications with parties.

In civil proceedings, expert evidence is given by an expert witness. The expert witness’ overriding duty is to the court. The evidence is normally an opinion based on fact, although it can be relevant to establishing the primary facts of the case. The evidence will either be in the form of a written report, which is prepared before the trial and made available to all parties to the litigation, or as oral evidence from the expert witness during the trial.

An expert adviser advises a party on a specialist matter within their expertise at any stage of the dispute. This can be useful at an early stage in assessing the strengths of the case, deciding whether to pursue the matter and understanding what investigations may be required.

The advice provided by an expert adviser at this stage will be privileged (Carlson v Townsend [2001] EWCA Civ 511). However, until the court has permitted the use of the expert adviser, their costs may not be recoverable. There is also a risk that the expert adviser cannot be used later on as an expert witness as they are no longer regarded as independent (see also Privilege).

Duties of experts

Civil Procedure Rules (CPR), part 35.3 provides that, when an expert witness is instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales, then it is their duty to assist the court on all matters within their expertise and that this duty overrides any obligation to the person from whom the experts have received instructions or by whom they are paid.

Separately, expert witnesses owe a duty to exercise reasonable skill and care to the party who has instructed them and to also comply with their professional code of ethics, but these duties are subject to the expert witness’ overriding duty to the court (paragraph 9, Civil Justice Council Guidance for the instruction of experts to give evidence in civil claims (CJC guidance)).

Single joint experts also have an overriding duty to the court (paragraph 43, CJC guidance). A single joint expert has been jointly appointed by all the parties to the dispute and so will owe an equal duty to all parties and must maintain independence, impartiality and transparency at all times. They should not attend any meeting or conference which is not a joint one unless all the parties have agreed in writing or the court has directed that such a meeting may take place and who is to pay for the expert’s fees for the meeting.

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