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Judge Toulmin recasts the Cresswell principles of expert evidence in the light of the CPR. |
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Failure to exchange an experts report in time is a good ground for disallowing it altogether. |
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A litigant cannot resort to the procedural device of a witness summons to escape paying an expert witness for giving evidence in court. |
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Agreed experts, jointly selected under a pre-action protocol, are not the same as SJEs, and their reports are the sole property of the instructing party. |
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Instructing a party-appointed expert after a single joint expert has reported is acceptable. The case also raised interesting issues on the Human Rights Act 1998. |
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An expert witness is not disqualified from giving evidence by being an employee of one of the parties. |
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Referal of an expert witness to his professional body for breach of duty under CPR 35. |
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Solicitors acting for legally aided clients in criminal proceedings are not precluded by law from paying an experts fee and expenses for giving evidence in court. |
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Judicial support for the right of experts to make cancellation charges. |
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An expert can provide expert evidence on behalf of a friend, a colleague, employer or client but must expect his independence to come under detailed scrutiny. |
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The Court of Appeal reaffirms that the obligation of an expert is to 'state the substance of all material instructions, whether written or oral, on the basis of which the report was written' |
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Expert witnesses must be prepared to meet court requirements on their availability for trial, or be ready to explain why they cannot. |
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Written questions (CPR 35.6) may, with the agreement of the courts or the parties, go beyond clarification. Experts should never make the decision on whether or not to deal with written questions - that decision is for the instructing solicitor. |
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Mr Justice Cresswell's classic statement of the duties of an expert witness. |
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One-to-one communication with an SJE is never permissible. SJEs should avoid telephone contact with the parties. |
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Expert witnesses should not have any financial interest in a case in which they are instructed. This means experts must not accept payment terms that depend on the outcome of the case. |
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Under CPR, the courts are still showing no inclination to diminish the expert's right to immunity to suit. |
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Trial judges must be expected to give reasons for rejecting expert evidence. |
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A solicitor should not instruct an expert who is known not to be available to attend court. |
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There is no property in a witness’ - unless the witness in question has already been instructed as an agreed’ expert (i.e. pre-action). |
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Experts are entitled to immunity from suit to avoid the tension between a desire to assist the court and fear of
the consequences of a departure from previous advice. |
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An experts failure to comply with CPR resulted in his client losing the opportunity of pursuing a claim and being saddled with some very expensive legal fees. |
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Is the discretion of the Determining Officer to pay experts' travel time claims in criminal cases fettered? No, but the system is still pretty fetid! |
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Disclaimer
The information contained in the court reports is supplied
for general information purposes only and does not constitute
professional advice. Neither J S Publications nor the
authors accept responsibility for any loss that may
arise from reliance on information contained herein.
You should always consult a suitably qualified adviser
on any specific problem or matter.
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