(LRC CP 52-2008)
© Copyright
Law Reform Commission
FIRST PUBLISHED
December 2008
ISSN 1393-3140
LAW REFORM COMMISSION’S ROLE
The Law
Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to
make proposals for reform, in particular by recommending the enactment of
legislation to clarify and modernize the law. Since it was established, the
Commission has published over 140 documents containing proposals for law reform
and these are all available at www.lawreform.ie. Most of these proposals have
led to reforming legislation.
The
Commission’s role is carried out primarily under a Programme of Law Reform. Its
Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad
consultation and discussion. In accordance with the 1975 Act, it was approved
by the Government in December 2007 and placed before both Houses of the
Oireachtas. The Commission also works on specific matters referred to it by the
Attorney General under the 1975 Act. Since 2006, the Commission’s role includes
two other areas of activity, Statute Law Restatement and the Legislation
Directory.
Statute Law
Restatement involves the administrative consolidation of all amendments to an
Act into a single text, making legislation more accessible. Under the Statute
Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on
as evidence of the law in question. The Legislation Directory - previously
called the Chronological Tables of the Statutes - is a searchable annotated
guide to legislative changes. After the Commission took over responsibility for
this important resource, it decided to change the name to Legislation Directory
to indicate its function more clearly.
Membership
The Law Reform Commission consists of a President, one
full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
The
Hon Mrs Justice Catherine McGuinness
Former
Judge of the Supreme Court
Full-time
Commissioner:
Patricia
T. Rickard-Clarke, Solicitor
Part-time
Commissioner:
Professor
Finbarr McAuley
Part-time
Commissioner:
Marian
Shanley, Solicitor
Part-time
Commissioner:
Donal
O’Donnell, Senior Counsel
Law Reform Research Staff
Director
of Research:
Raymond
Byrne BCL, LLM (NUI),
Barrister-at-Law
Legal
Researchers:
Chris
Campbell B Corp, LLB Diop Sa Gh (NUI)
Frances
Colclough BCL, LLM (NUI)
Siobhan
Drislane BCL, LLM (NUI)
Claire Murray, BCL (NUI), Barrister-at-Law
Gemma
Ní Chaoimh BCL, LLM (NUI)
Bríd
Nic Suibhne BA, LLB, LLM (TCD), Diop sa Gh (NUI)
Jane
O’Grady BCL, LLB (NUI ), LPC (College of Law)
Gerard
Sadlier BCL (NUI)
Joseph Spooner, BCL (Law with French Law) (NUI),
Dip. French and European Law (Paris II), BCL (Oxon)
Ciara
Staunton BCL, LLM (NUI), Diop sa Gh (NUI)
Statute
Law Restatement
Project
Manager for Restatement:
Alma
Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal
Researchers:
John
P Byrne BCL, LLM (NUI), Barrister-at-Law
Elizabeth
Fitzgerald LLB, M.Sc. (Criminology & Criminal Justice), Barrister-at-Law
Catriona
Moloney BCL (NUI), LLM (Public Law)
Legislation
Directory
Project
Manager for Legislation Directory:
Heather
Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law
Legal
Researchers:
Margaret
Devaney LLB, LLM (TCD)
Rachel
Kemp BCL (Law and German), LLM (NUI)
Administration Staff
Executive
Officers:
Deirdre
Bell
Simon
Fallon
Darina
Moran
Peter
Trainor
Legal
Information Manager:
Conor
Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland BA (Hons), H Dip Ed, H Dip LIS
Clerical Officers:
Ann Browne
Ann
Byrne
Liam
Dargan
Sabrina
Kelly
Principal legal researcher for this CONSULTATION
PAPER
Margaret Maguire LLB, LLM (NUI)
CONTACT DETAILS
Further
information can be obtained from:
The Law Reform Commission
35-39 Shelbourne Road
Ballsbridge
Dublin 4
Telephone:
+353 1 637 7600
Fax:
+353 1 637 7601
Email:
info@lawreform.ie
Website:
www.lawreform.ie
ACKNOWLEDGEMENTS
The
Commission would like to thank the following people who provided valuable
assistance in the preparation of this Consultation Paper:
Association of Consulting Forensic Engineers
Ms. Caroline Conroy, Managing Director, La Touche
Witness Training, Ireland
Ms. Penny Cooper, Director of Continuing Professional
Development and Witness Preparation Training, City Law School, City University,
London
Dr. Chris Pamplin, UK Register of Expert Witnesses
Mr. Ciaran Fahy, Consulting Engineer
Mr. Andrew Burr, Barrister-at-Law, Atkin Chambers,
London
Mr. Paul Romeril, Consulting Engineer
Full
responsibility for this publication lies, however, with the Commission.
Table of Cases
xiii
B The admissibility of expert evidence of opinion
and the role of the expert
witness in court
C The challenges involved in expert evidence and
the
role of the expert witness
D Outline
of the Consultation Paper
CHAPTER 1
ORIGINS AND DEVELOPMENT
OF THE
EXPERT
WITNESS
(5) Juries
of Merchants & Other Professionals
(6) The
Decline of the Special Jury
E Court Experts and Expert Witnesses
F Theory and Nature of the Opinion Rule
G A
Growing Recognition of the Problems with Expert Testimony
CHAPTER
2
ADMISSIBILITY OF EXPERT
EVIDENCE
B Rule against Opinion Evidence
(1) Exception
to Exclusionary Rule: Expert Opinion Evidence
(2) Necessary
Elements to Prove Necessity
for
Expert Testimony
C The Categories of Expert Evidence
(1) Evidence
in the form of Opinion Based on
Facts Given
in Court
(2) Expert
Evidence to Explain Complex
Subject
Matters or Technical Terminology
(5) Admissible
Hearsay of a Specialist Nature
D The
Scope of Expert Evidence
(1) Within
the Field of Expertise of the Expert
(3) The
Ultimate Issue Rule 78
(4) Expert
and Non-Expert Evidence of Fact
(5) Non-Expert
Opinion Evidence
E The Weight and Value to be Attached
to
Expert Evidence
(1) The
Court Assesses the Value of the
Expert
Evidence
(2) The
Evidence of Lay Witnesses can be given Greater Weight
than Expert Evidence 93
(3) Factors
to be Taken into
Account
When Determining Weight
(4) Conflicting
Expert Testimony
F Usurpation of the Role of Judge or Jury
G Junk
Science and the Need for a Reliability Test
(5) A
Reliability Test for Ireland?
CHAPTER 3
THE QUALIFIED &
IMPARTIAL EXPERT:
DUTIES
and FUNCTIONS OF EXPERT
WITNESSES
B What is an ‘Expert Witness’?
(2) Necessary
Experience and Qualifications
(3) Court
Procedure for Proving Expertise
(4) Relationship
between an Expert Witness
&
Instructing Party
C Principal Recognised Duties of Expert Witnesses
(1) No
Definitive List of Duties in Ireland
(2) The
Ikerian Reefer case 154
(3) Summary
of Main Recognised Duties
D Duties
of Expert Witnesses Recognised in Other Jurisdictions
CHAPTER 4
Adversarial Bias,
Partisanship &
Conflicts
of Interest
(4) Bias
or Genuine Disagreement
(2) Misunderstanding
of the Role of
the
Expert Witness
F Judicial Commentary on Bias and Partisanship
G Ways
to Reduce Possibility of Bias
(1) Argument
One: The Current Adversarial Expert Testimony System is Adequate to Combat Bias
(2) Argument
Two: There is a need for the
Amendment of the Adversarial
Structure
CHAPTER 5
Procedural aspects of
the giving of expert testimony
B The Need for Procedural Reforms
C Selection, Appointment and Examination of Experts
(1) Disclosure
of Intent to Adduce Expert Evidence
(2) Court
Permission to Adduce Expert Evidence
(3) Pre-Trial
Determination of Admissibility of
Expert
Evidence and of Expertise
(4) Terms
and Conditions of Appointment
(5) Information
and Instructions for Experts
D Communication
between Experts and between
Experts and the Court:
Pre-trial and At the Hearing
(1) Pre-Trial
Meetings between Experts
(4) Disclosure
of all Relevant Information
(1) Disclosure
of Expert Reports &
Rules
of Privilege
(2) Exchange
of Expert Reports
(3) Requisite
Contents of the Expert Report
(4) Producing
Expert Reports in Court
F Alternative Structures to Party Appointed Experts
(1) Single
and Court Appointed Experts
(2) Panels
of Experts or Mixed Panels
(4) Court
Assessors or Advisors
CHAPTER 6
sanctions,
accountability and governance of
expert witnesses
B Training & Accreditation of Experts
(2) Existing
Examples of Training & Accreditation
(3) Difficulties
caused by Lack of
Mandatory
Training
(4) Should
Mandatory Training & Accreditation be introduced?
(5) Training
for Judiciary and Other
Members
of the Legal Profession
(6) Training
& Accreditation: Conclusion
C Professional Expert Witness Regulatory &
Disciplinary Bodies
(1) Dedicated
Regulatory Body for
Expert
Witnesses
(2) Dedicated
Disciplinary Body for
Expert
Witnesses
(3) Immunity
from Disciplinary Action from
Professional Regulators
(4) What
Circumstances Should Disciplinary Action
Be Taken In?
(5) Types
of Professional Disciplinary Sanctions
(6) Immunity
Issues: Conclusion
D Expert
Witness Immunity from Civil or Criminal Suit
(3) Expert
Witness Immunity from Suit: Abolition or Retention?
E Alternative Remedies to Civil Suit
CHAPTER 7
SUMMARY OF provisional
recommendations
TABLE OF CASES
|
Abbey National Mortgages Plc v Key Surveyors Nationwide Ltd & Ors |
(1996) EGCS 23 |
Eng |
|
Abinger v Ashton |
L.R. 17 Eq. 358, 373 (1873) |
Eng |
|
AG (Ruddy) v kenny |
(1960) 94 ILR 185 |
Irl |
|
Aird & Anor v Prime Meridian Ltd |
[2006] EWHC 2338 |
Eng |
|
Alsopp v Bowtrell |
(1620) Cro. Jac. 541 |
Eng |
|
Anglo Group Plc v Winther Brown & Co Ltd and BML (Office Computers) Ltd |
[2000] EWHC Technology 127 (8th March 2000) |
Eng |
|
Armchair Passenger Transport Ltd v Helical Bar PLC |
Eng |
|
|
Ashford v Thornton |
(1818) 1 B. & Ald. 405 |
Eng |
|
AW v DPP |
Unreported, High Court, 23 November 2001 |
Irl |
|
Barings plc v Cooper & Lybrand (No.1) |
[2001] EWHC Ch 17 (9th February 2001) |
Eng |
|
Beckwith v Sydebotham |
1 Camp 116 |
Eng |
|
Best v Wellcome Foundation Ltd |
[1993] 3 IR 421 |
Irl |
|
Bird v Adams |
[1972] Crim LR 174 |
Eng |
|
Buckley v Rice-Thomas |
(1554) Plowden 124; 75 ER 182 |
Eng |
|
Bushell's Case |
(1671) Vaughan 142, 22 Car. 2 |
Eng |
|
Cala Homes (South) Ltd & Ors v Alfred McAlpine Homes East Ltd |
[1995] EWHC 7 (ch) (06 July 1995) |
Eng |
|
Carter v Boehm |
1 Smith LC, 7th ed (1876) |
Eng |
|
Clark v Ryan |
(1960) 103 C.I.R. 486 |
Aus |
|
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain |
[2002] NSWSC 980 |
NSW |
|
Confetti Records v Warner Music |
[2003] EWCH 1274 |
Eng |
|
Daniels v Walker |
Eng |
|
|
Daubert v Merrell Dow Pharmaceuticals, Inc |
509 US 579: 113 S. Ct. 2786 [1993] |
US |
|
Davie v Edinburgh Magistrates |
(1953) SLT 54 |
Eng |
|
Davis v Stena Line Ltd |
Eng |
|
|
Derby & Co Ltd and Others v Weldon and Others |
The Times, Nov 9 1990 |
Eng |
|
DK v TH (Orse TK) |
Unreported, High Court, February 25, 1998 |
Irl |
|
Doherty v North Western Health Board, Davison and Medical Defence Union and MDU Services Ltd |
Irl |
|
|
DPP v A and BC Chewing Gum Ltd |
[1968] 1 QB 159 |
Eng |
|
DPP v Boyce |
Irl |
|
|
DPP v Buckley |
Irl |
|
|
DPP v Egan |
[1990] ILRM 780 |
Irl |
|
DPP v Kehoe |
[1992] ILRM 481 |
Irl |
|
DPP v Yu Jie |
Irl |
|
|
DPP v Yusuf Ali Abdi |
Irl |
|
|
Dunne v National Maternity Hospital |
[1989] IR 91 (SC) |
Irl |
|
English Exporters Pty. Ltd. v Eldonwall Ltd |
[1973] 1 Ch 415 |
Eng |
|
F v L (Orse F) |
[1990] 1 IR 348 |
Irl |
|
F(G) v B(J) |
[2000] IEHC 112 (28th March 2000) |
Irl |
|
F(Ors C) v C |
[1991] ILRM 79 |
Irl |
|
Field v Leeds City Council |
[1999] EWCA Civ 3013 (8 December 1999) |
Eng |
|
Fitzpatrick v DPP |
Unreported, High Court 5th December 1997 |
Irl |
|
Folkes v Chadd |
(1782) 3 Douglas 157 |
Eng |
|
Franks & Faith (t/a Ground Rent Securities) v Towse |
Eng |
|
|
Frye v United States |
(1923) 54 App. DC 46, 293 F. 1013 |
US |
|
Galvin v Murray |
Irl |
|
|
General Electric Co. v Joiner |
522 US 136 (1997) |
US |
|
Graigola Merthyr Co Ltd v Swansea Corporation |
[1928] 1 Ch 31 |
Eng |
|
Hanrahan v Merck, Sharpe & Dohme |
[1988] IESC 1; [1988] ILRM 629 (5th July 1988) |
Irl |
|
Harmony Shipping Co v Saudi Europe |
[1979] 1 WLR 1380 |
Eng |
|
Hawkes v London Borough of Southwark |
[1998] EWCA Civ 310 (20 February 1998) |
Eng |
|
HG v The Queen |
(1999) 197 CLR 414 |
Aus |
|
Hoechst Celanese Corporation v BP Chemicals Limited |
[1998] EWCA Civ 1081 |
Eng |
|
Huffman v Lindquist |
(1951) 37 Cal 2d 465 |
US |
|
JF v DPP |
[2005] IESC 24 (26 April 2005) |
Irl |
|
JOC v DPP |
Irl |
|
|
Joyce v Yeomans |
[1981] 1 WLR 549 |
Eng |
|
JWH (Orse W) v GW |
Unreported, High Court, February 25, 1998 |
Irl |
|
Kenning v Eve Construction |
[1989] 1 WLR 1189 |
Eng |
|
Kincaid v Aer Lingus Teoranta |
[2003] IESC 31 (9 May 2003) |
Irl |
|
Kirin-Amgen Inc and Ors v Hoechst Marion Roussel Ltd & ORs |
Eng |
|
|
Kumho Tyre Co v Carmichael |
526 US 137 (1999) |
US |
|
KWT v DAT |
[1992] 2 IR 11 |
Irl |
|
Ladner v Higgins |
71 So. 2d 242 (La. Ct. App. 1954) |
US |
|
Liddell v Middleton |
(1996) PIQR 36 |
Eng |
|
Liverpool Roman Catholic Archdiocesan Trust v Goldberg |
[2001] EWHC Ch 396 (6th July 2001) |
Eng |
|
Maguire v Ardagh |
Irl |
|
|
McFadden v Murdock |
(1867) Exchequer IR ICL 211 |
Irl |
|
MCG(P) v F(A) |
[2000] IEHC 11 (28th January 2000) |
Irl |
|
McGrory v ESB |
Irl |
|
|
McMullen v Farrell |
[1993] 1 IR 123 |
Irl |
|
Mc'Naghten's Case |
(1843) 10 Cl. & Fin 200 |
Eng |
|
McTear v Imperial Tobacco |
Eng |
|
|
Midland Bank Trust Co Ltd v Hett Stubbs & Kemp |
[1978] 3 All ER 571 |
Eng |
|
Mohammed v Financial Services Authority |
[2005] UKFSM FSM 013 (18 January 2005) |
Eng |
|
MS v DPP |
Unreported 5th December 1997 |
Irl |
|
Murphy v The Queen |
[1989] 164 CLR 94 |
Aus |
|
Mutch v Allen |
[2001] 2 CPLR 24 |
Eng |
|
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikerian Reefer) |
[1993] 2 Lloyd's Rep 68 |
Eng |
|
NC v DPP |
SC July 5 2001 |
Irl |
|
News Datacom v Lyons |
[1994] IEHC 1; 1994 1 ILRM 450 (20th January 1994) |
Irl |
|
O'Callaghan v O'Sullivan |
[1925] 1 IR 90 |
Irl |
|
O'Doherty v Whelan |
(1994) 12 ILT 25 |
Irl |
|
O'Keeffe v Kilcullen |
Irl |
|
|
O'Keeffe v Kilcullen |
Irl |
|
|
O'Keeffe v Kilcullen |
Irl |
|
|
Payne v Shovlin |
[2006] IESC 5 (09 February 2006) |
Irl |
|
Pearce v Ove Arup Partnership Ltd & Ors |
[2001] EWHC Ch 455 (2nd November 2001 |
Eng |
|
People (AG) v Fennell (No. 1) |
[1940] IR 445 |
Irl |
|
People (AG) v Kelly |
(1962) Frewen 267 |
Irl |
|
People (DPP) v Allen |
[2003] 4 IR 295 |
Irl |
|
People (DPP) v Fox |
Unreported, Special Criminal Court, 23rd January 2002 |
Irl |
|
People (DPP) v Howe |
Irish Times 15 October 2003 |
Irl |
|
People (DPP) v John Gilligan |
Unreported 15 March 2001 |
Irl |
|
People (DPP) v Pringle |
(1981) 2 Frewen 57 (CCA) |
Irl |
|
Petursson & Or v Hitchison 3G UK Ltd |
[2005] EWHC 920 (TCC) (09 May 2005) |
Eng |
|
Polivitte Ltd v Commercial Union Assurance Co. Plc |
[1987] 1 Lloyd's Rep 379 |
Eng |
|
Poynton v Poynton |
(1903) 37 ILTR 54 |
Irl |
|
Quarmby Electrical v Trant t/a Trant Construction |
Eng |
|
|
R (Factortame) v Secretary of State for Transport |
Eng |
|
|
R v Abadom |
[1983] 1 WLR 126 |
Eng |
|
R v Abbey |
[1982] 2 SCR 24 |
Can |
|
R v Barnes |
Eng |
|
|
R v Bjordal |
(1960) 103 C.I.R. 486 |
Aus |
|
R v Bonython |
[1984] 38 SASR |
Aus |
|
R v Cannings |
Eng |
|
|
R v Chatwood |
[1980] 1 WLR 874; [1980 1 All ER 467, 70 Cr.App.Rep. 39 |
Eng |
|
R v Clark (Sally) |
Eng |
|
|
R v Dallagher |
Eng |
|
|
R v Ferrers |
(1760) 19 Howell, State Trials 924-944 |
Eng |
|
R v Gilfoyle |
(2001) 2 Cr. App. R. 5 |
Eng |
|
R v Greene |
(1679) 7 Howell, State Trials, 185, 186 |
Eng |
|
R v Harris & Ors |
Eng |
|
|
R v Heath |
(1744) 18 Howell, State Trials 70 |
Eng |
|
R v Howe |
[1982] 1 NZLR 618 |
NZ |
|
R v Johnson |
(1994) 75 A Crim R 522 |
US |
|
R v Luttrell |
Eng |
|
|
R v Meads |
[1996] Crim LR 519 CA |
Eng |
|
R v Mohan |
[1994] 2 SCR 9 |
Can |
|
R v O'Brien |
Eng |
|
|
R v O'Connell |
(1844) 7 Irish L. Rep 261 |
Irl |
|
R v Pembroke |
(1678) Ib. 1337, 1228, 1340, 1341 |
Eng |
|
R v Puaca |
Eng |
|
|
R v Robb |
(1991) 93 Cr.App.R 171 |
Eng |
|
R v Rouse |
The Times, 24 February 1931 |
Eng |
|
R v Silverlock |
[1894] 2 QB 766 |
Eng |
|
R v Stockwell |
(1993) 97 Cr.App.R. 260 |
Eng |
|
R v Toner |
93 Cr App R 382 |
Eng |
|
R v Turner |
[1975] QB 834 |
Eng |
|
R v Ugoh |
Eng |
|
|
R v Ward |
(1993) 96 Cr App R 1 |
Eng |
|
Ramsay v Watson |
(1961) 108 CLR 642 |
Eng |
|
RB v DPP |
Unreported, High Court, December 21 2004 |
Irl |
|
Re Haughey |
[1971] IR 217 |
Irl |
|
Re J |
[1990] FCR 193 |
Eng |
|
Re J |
[1990] FCR 193 |
|
|
Re N |
[1999] EWCA Civ 1452 (20 May 1999) |
Eng |
|
Richardson v Redpath, Brown & Co Ltd |
[1944] A.C. 62; 36 BWCC 259 |
Eng |
|
Rockwater v Technip France SA & Ors |
Eng |
|
|
Routestone v Minories Finance |
Eng |
|
|
RT v VP (Orse VT) |
[1990] 1 IR 545 |
Irl |
|
S(J) v S(C) |
[1996] IEHC 23; [1997] 2 IR 506 (14th October 1996) |
Irl |
|
Severn, King and Company v Imperial Insurance Company |
The Times April 14 1820 |
Eng |
|
Shell & Pensions v Fell Frischmann |
[1986] 2 All ER 911 |
Eng |
|
Sherrard v Jacob |
[1965] NI 151 |
N Irl |
|
Smith v Lothian University Hospitals NHS Trust |
Eng |
|
|
Southern Health Board v C |
[1996] 1 IR 219 |
Irl |
|
Spencer Cowper |
(1699) 13 Howell, State Trials, 1126-1135 |
Eng |
|
Stanton v Callaghan |
[1998] EWCA Cil 1176 (8 July 1998) |
Eng |
|
State (D and D) v Groarke & Ors |
[1990] 1 IR 305 |
Irl |
|
Strudwick & Merry |
(1994) 99 Cr. App. 326 |
Eng |
|
The Beryl |
(1844) 9 P.D. 137 |
Eng |
|
The People (DPP) v Horgan |
Irish Examiner 25 June 2002 |
Irl |
|
The People (DPP) v Mark Lawlor |
Central Criminal Court 2 December 2005 |
Irl |
|
The Torenia |
[1983] 2 Lloyd's Rep 210 |
Eng |
|
Thompson v Thompson |
Solicitors Journal of 3rd February 1961 Volume 105 |
Irl |
|
Thorn v Dickens |
[1906] WN 54 |
Eng |
|
Thorn v Worthing Skating Rink Co |
(1877) 6 Ch D 415 |
Eng |
|
Toth v Jarman |
[2006] EWCA Civ 1028 (19 July 2006) |
Eng |
|
Transport Publishing Co Pty Ltd v The Literature Board of Review |
(1955) 99 CLR 111 |
Eng |
|
Velveski v The Queen |
(2002) HCA 4 (14 February 2002) |
Aus |
|
Vernon v Bosley |
Eng |
|
|
VW v DPP |
Unreported, Supreme Court 31 October 2003 |
Irl |
|
Wallersteiner v Moir (No. 2) |
[1975] QB 373 |
Eng |
|
Webb v Page |
(1843) 1 Car & Kir 23 |
Eng |
|
Whitehouse v Jordan |
Eng |
|
|
Wilband v The Queen |
(1966) CanLII 3 (SCC) |
Can |
|
Witches Case |
(1665) 6 Howell, State Trials 687 |
Eng |
|
Wright v Doe d Tatham |
(1838) 4 Bing NC 489 |
Eng |
A
Background
to the project
1.
This Consultation Paper forms part of the Commission’s Third
Programme of Law Reform 2008-2014,[1]
and involves an examination of the current rules concerning the admissibility
of expert evidence in court and the role and function of expert witnesses.
The project also involves an examination of arrangements for ensuring the
quality of expert evidence. In terms of these two key aspects of the
project, the Commission also explores relevant options for reform.
B
The
admissibility of expert evidence of opinion and the role of the expert witness
in court
2.
As the detailed discussion in this Consultation Paper indicates, a key
element of the law of evidence as it applies in courts is that witnesses are
generally allowed to give only relevant and factual evidence; they are not
permitted to express their opinion on their evidence. For example, if a
person saw a colleague having an accident while working with a machine in a
workplace, he or she could give evidence in court about what happened but would
not be permitted to give an opinion about whether, for example, the machine
complied with national or international safety standards.
3.
There are a number of reasons why opinion evidence by ordinary witnesses
is not permitted. One is that an opinion may be based on a “hunch” rather
than actual knowledge or expertise and would therefore be unreliable.
Another reason is that the opinion – for example, as to whether a machine
complies with safety standards – may be directly related to what is described
as the “ultimate issue” to be decided by the court. In any criminal
prosecution of the employer under relevant safety and health legislation, the
ultimate issue is whether the employer was in breach of any statutory duty to
the employee and whether it has committed an offence. Similarly, in any
civil claim the ultimate issue is whether the employer was in breach of any legal
duty and is required to compensate the employee for any injuries sustained.
4.
The ultimate issue, whether of criminal or civil liability, is a matter
for a court to decide, not for any witness. The overwhelming majority of
criminal trials dealt with in the Irish courts (over 200,000 annually) are
heard in the District Court by a judge sitting alone, who is both the finder of
fact and determiner of liability. More serious crimes (over 2,000
annually) are in general dealt with in the Circuit Criminal Court where the
court consists of a judge and jury. Here the jury, guided by the trial
judge on questions of law, is the finder of fact, while the judge determines
the sentence. Major criminal trials, in general murder and rape, are tried
by judge and jury in the Central Criminal Court (over 100 annually). In a
criminal trial the ultimate issue of innocence or guilt may turn on a complex
technical issue such as DNA evidence, mobile phone tracing evidence, or the
interpretation of medical evidence. In such cases, it is unlikely that a
judge or members of a jury will have the detailed technical knowledge required
to decide, for instance, whether a DNA profile of the accused correctly matched
the DNA sample found at the scene of a crime, or whether a baby died because of
violent shaking or from natural causes
5.
The vast majority of civil trials are tried by a judge (or occasionally
a number of judges) without a jury. Here, the ultimate issue to be decided may
also turn on a technical issue, such as whether a particular machine complied
with safety standards or whether a chemical substance complied with relevant
statutory regulations. Again the court is unlikely to have the required
knowledge to deal with all the varied issues that arise in civil trials.
6.
It is clear that this is where the combination of expert evidence and
the expert witness forms an important part of many criminal and civil trials.
In the law of evidence, the main exception to the rule against allowing a
witness to given opinion evidence is that an opinion can be given by an expert
in an area of expertise outside the scope of knowledge of the court, in
particular the finder of fact. The benefits of permitting the court to be
assisted in its fact-finding role by expert knowledge have long been
recognised. In that respect, expert evidence and expert witnesses will continue
to play an important role in the courts.
C
The
challenges involved in expert evidence and the role of the expert witness
7.
At the same time, however, the Commission is aware that expert evidence
and expert witnesses present challenges. In its Report on the Establishment
of a DNA Database[2] the Commission traced the recent emergence of DNA
evidence in criminal trials. The Commission noted that the benefits of DNA
evidence, both in exonerating the innocent and in convicting the guilty, are
evident but it is also clear that this is an emerging science which presents a
number of challenges. On the one hand, for example, there may be some who
completely mistrust scientific evidence. On the other hand, there may be those
who take the view that the expert – perhaps especially a crime scene
expert referring to DNA evidence – must always be right because they are always
right when portrayed on TV. In other instances, the problem may be with
the individual expert – the testimony may be hugely relevant and convincing but
it may be delivered using scientific jargon that the court (whether judge or
jury) cannot follow. In its Report on the Establishment of a DNA
Database the Commission made some recommendations on how these matters
might be addressed in the specific setting of DNA evidence.
8.
The Commission is aware that the specific issues it discussed in the
context of DNA evidence reflect concerns in the wider setting of expert
evidence and expert witnesses generally. Increasing specialisation of knowledge
in a complex society has led to an exponential growth in the number of requests
to enlist the aid of experts in civil and criminal trials. This has led to an
examination of this growth, with a view to ensuring that expert evidence
remains available to courts while at the same time addressing concerns about its
reliability.
9.
In the Reports of Lord Woolf in the mid 1990s[3]
that led to fundamental reform of civil procedure generally in the courts in
England and Wales, some of the principal causes for unease with the system of
giving expert evidence were outlined. In Lord Woolf’s Access to Justice,
Interim Report (1995) the following comments were made:
“In many cases the expert, instead of playing the
[independent and impartial] role identified by Lord Wilberforce,[4]
has become… ‘a very effective weapon in the parties' arsenal of tactics.’ A
similar point was made by the Commercial judges… when they summarised the
present faults as follows:
·
polarisation of issues and unwillingness to concede issues from the
start;
·
insufficient observance of the confines of expert evidence and expansion
into the realms of rival submissions; and
·
insufficient willingness to strip out, agree or concede all but the
essential issues following exchange of reports.”
10.
The Australian Law Reform Commission, which carried out a review in this
area in 1999, identified some of the main challenges of expert evidence as
being:[5]
- The
court hears not the most ‘expert’ opinions, but those most favourable to
the respective parties, and partisan experts frequently appear for
one side.
- Experts
are paid for their services, and instructed by one party only; some bias
is inevitable and corruption a possibility.
- Questioning
by lawyers may lead to the presentation of an inaccurate picture, which
will mislead the court and frustrate the expert.
- Where
a substantial disagreement concerning a field of expertise arises it is
irrational to ask a judge to resolve it; the judge has no criteria by
which to evaluate the opinions.
- Success
may depend on the plausibility or self-confidence of the expert rather
than the expert's professional competence.
11.
This Consultation Paper seeks to set out the law as it stands in Ireland
on expert evidence, and examine whether the criticisms that have been raised in
other jurisdictions can be applied in the Irish context. The Commission seeks
to outline the problems that have been raised as well as discussing some of the
potential changes that could be made to address these problems.
D
Outline
of the Consultation Paper
12.
In the light of these general introductory comments the Commission now
proceeds to provide an overview of the succeeding chapters in this Consultation
Paper.
13.
Chapter 1 sets out an historic overview of how expert knowledge was used
in the courts along with the development of a body of evidence laws and how
this has evolved into the current rule against opinion evidence, subject to the
exception that allows expert opinion testimony.
14.
Chapter 2 examines the rules governing the admissibility of expert evidence.
The different categories of matters on which expert evidence is admitted are
outlined. This chapter also examines the precise scope and parameters of expert
evidence and the rules governing this, including the requirement that the issue
be outside the range of knowledge of the finder of fact and the prohibition on
the giving of an expert opinion on an ultimate issue in a case. The various
factors that are taken into account when determining the appropriate weight and
value to attach to expert testimony in a particular case are outlined. Some of
the main concerns about how expert testimony is given, the possible usurpation
of the role of the jury and the possible admission of unreliable or ‘junk
science’ are also identified. This chapter concludes by discussing whether
there is a need to introduce some sort of reliability test, such as the Daubert
and Frye tests that have been applied in the United States.
15.
Chapter 3 focuses not on the evidence but on the individuals proffered
to give expert evidence. The question ‘what is an expert witness’ is addressed,
along with determining the scope of the duties and function of an expert
witness.
16.
Chapter 4 examines the potential problems that can arise with expert
witnesses, such as a failure to act independently, in an unbiased manner or
impartially, and the possibility of the experts becoming partisan ‘hired guns’
for their instructing parties. This chapter also outlines a number of ways in
which bias and partisanship can be limited in the giving of expert testimony.
17.
Chapter 5 discusses some procedural changes that could be made to deal
with the expense and delays involved in the current system. A range of
provisions aimed at improving communication between experts, and between
experts and the court, and also aimed at improving the standard of expert
reports, are identified. This chapter also examines some alternative
arrangements for giving expert testimony that might be introduced, in contrast
to the position in Ireland at present by which the parties are responsible for
the decision to adduce expert evidence and for the choice of expert.
18.
Chapter 6 examines the issue of introducing some form of accreditation,
registration or training regime for experts. The range of possible sanctions
that could be imposed on an expert for failing to act independently, for
negligence, or for breach of duty is also discussed. In this respect, the
appropriateness of having immunity from suit for expert witnesses is also
debated.
19.
Chapter 7 contains a summary of the Commission’s provisional
recommendations for reform as well as issues on which submissions are sought.
20.
This Consultation Paper is intended to form the basis for discussion and
therefore all the recommendations made are provisional in nature. The
Commission will make its final recommendations on the subject of expert
evidence following further consideration of the issues and consultation with
interested parties. Submissions on the provisional recommendations included in
this Consultation Paper are welcome. To enable the Commission to proceed with
the preparation of its Final Report, those who wish to do so are requested to
make their submissions in writing by post to the Commission or by email to
info@lawreform.ie by 30 April 2009.
CHAPTER 1
ORIGINS AND
DEVELOPMENT OF THE EXPERT
WITNESS
A
Introduction
1.01
A wealth of academic literature and professional debate currently exists
which focuses on the use of expert witnesses in court. This might give the
impression that the use of expert witnesses is a new legal phenomenon, which
has come about as a result of the increasing specialisation of knowledge in
today’s society, and that it is only in recent decades that the potential
criticisms and weaknesses of the expert witness system have been identified. In
fact, the use of, and problems associated with, expert evidence in court has
deep historic roots, and examples can be seen in case law dating from the
Middle Ages.
1.02
Hand argues that an historical analysis of the rise of expert testimony
is in reality no more than a gradual recognition of such testimony amid the
rules of evidence as those rules began to take form. An examination of the rise
of its history highlights that expert evidence has long since been accepted as
necessary and beneficial, even prior to the development and enforcement of exclusive
rules of evidence.[6]
1.03
The purpose of this chapter is to trace the development of the use of
expert evidence from its earliest origins, and by doing so to highlight that
the benefits of using such evidence, and the debate surrounding its many
problems, have been evolving for several centuries.
1.04
Part B looks at the early origins of the use of experts prior to the
advent of trial by jury. Part C examines and explains the concept of the
special jury and gives historical examples where this structure was used.
Part D looks at the use of court assessors in this jurisdiction and in other
jurisdictions over the centuries. Part E follows the rise of the use of the
court expert and expert witnesses in the courts and Part F traces the growth of
a formal body of evidence law to govern the use of such experts. Part G then
discusses the problems that emerged due to increasing use of expert witnesses
in litigation.
1.05
This chapter concludes by summarising in Part F the current Irish
position on the use of expert witnesses in court, with the aim of providing an
overview of the discussion that follows in the subsequent chapters.
B
Early Origins
1.06
The basis for allowing expert knowledge in the resolution of disputes is
that such knowledge is necessary for a finding that certain facts existed.
Prior to the advent of trial by jury, however, the resolution of disputes was
largely founded on a judgment from God, the Judicium Dei, which involved very
different principles. The older methods of proof used did not involve rational
adjudications upon evidence given in support of a theory, and there was little
opportunity for passing judgment on particular facts.[7]
1.07
The trial itself was, as Rosenthal describes it, “merely a submission to
a mechanical process of proof.”[8] The court was
simply required to decide which party should undergo the selected form of
proof. Then, under the supervision of the court, this party would take an oath
before God that his cause was just, and subsequently undergo some kind of test,
or trial.[9] As can be seen
from a brief explanation, these methods of trial did not therefore contain any
provision for experts or for the development of laws of evidence, or for the
use of witnesses in the modern sense.
1.08
The older methods of trial took four main forms. The best known and most
commonly used method in criminal trials was trial by ordeal. This was an appeal
to God to reveal the truth of human disputes and took several forms, usually
requiring fire or water. For example, the ordeal of water required the accused
party to be bound and lowered into a body of water; if he sank the water was
said to have ‘received him’ with God’s blessing and he was quickly pulled out.[10]
1.09
Another commonly used form of ordeal involved the party with the burden
of proof wrapping his hand in leaves and then holding a hot iron for a set
period of time. If he emerged unscathed, his cause was considered just and he
had successfully proved his case. If he burned, he lost.[11]
Such ordeals were manipulable, and many undergoing an ordeal with hot iron
succeeded. This may have contributed to its considerable popularity as the
method of trial of choice.[12] In 1215, the
Ordeal was denounced by the Church in the conciliar legislation of the Fourth
Lateran Council under Pope Innocent III.[13] As the Clergy were needed to administer the oath
that had backed the accusation,[14] the ordeal
could not proceed without their support, and secular authorities quickly
followed the Church’s example by prohibiting ordeal by fire or water as a means
of resolving disputes.[15]
1.10
Trial by battle is often considered to be a type of trial by ordeal, a
“bilateral ordeal”.[16] Here,
the parties decided the issues by physical combat, the theory being that
Providence would always intervene to ensure victory on the side of the right.[17]
This form of trial was invoked in civil cases, and parties to the dispute would
often hire champion fighters to engage in battle for them.[18]
This may also explain why it was such a popular method amongst the upper
classes, who would have been able to afford such unassailable competitors. This
method of trial began to wane at the same time as the other early forms of
proof, but was not in fact formally abolished until 1818 in the renowned case
of Ashford v Thornton.[19]
1.11
Another method was the system of compurgation or wager of law where the
accused took an oath that he did not commit the crime and produced eleven
compurgators to back this claim and testify to his good character.[20]
Initially this required eleven neighbours of the accused to testify, but with
the centralisation of Royal Justice in the two benches it became costly and
unnecessary to expect 11 men to be brought long distances for routine cases. As
a result the system evolved to enable the defendant to hire professional
compurgators to testify on his behalf and by the end of the 16th century it was
the official duty of the court porters to provide them for a fee. This in
effect meant the process simply amounted to the defendant’s oath coupled by a
ceremony for which he paid, and the system of compurgation did not survive
after 1600.[21]
1.12
Another factor in the decline of this method was the complexity involved
in the oath, as the emphasis was placed here on the oath itself, rather than
any probative value of the witness’ words.[22]
If any of the compurgators missed even one word, the oath failed and the party
lost.[23]
1.13
Related to the wager of law system was the system of proof by witnesses.
This was a process whereby a party would produce a witness who would swear an
oath on the veracity of that party’s version of events and attest to their good
character. Essentially, success was dependant on the quantity of witnesses, and
the party who could produce the most witnesses to back his claim won the
lawsuit.[24]
1.14
These older forms of proof all began to decline around the 13th
century amid a growing realisation that they were irrational and inconsistent
methods of resolving disputes. In particular, contemporary Church reformers had
become very disillusioned with such forms of proof, and appealing to the
Judicium Dei to settle legal disputes was criticised as being inconsistent with
the principles of theology at the time.[25]
1.15
The vacuum left by the abandonment of these methods of proof required
the secular authorities to create or adopt new procedures to carry out their
functions.
1.16
Trial by inquisition became the new method of choice in the majority of
Western European countries. However in England, the Juries of Presentment
introduced by the Assizes of Clarendon and Northampton provided the model for
what later became trial by jury.[26] Through
jury trial, the adjudication of disputes slowly became centred on the reasoned
decision of a body of reasonable human beings who received evidence before them
in the form of documents and records, rather than on the outcome of a
mechanical procedure of proof. Indeed, Holdsworth argues that it is at this
point that we can see an indication of the tentative beginnings of a law of
evidence, for example, the introduction of provisions that witnesses should be
compelled to attend and testify in common law,[27]
and for the cross examination of witnesses by counsel,[28]
which helped to clarify the distinction between jurors and witnesses. [29]
1.17
However, it was not the case that the law of evidence had a gradual and
consistent development right from the beginning of the system of trial by jury.
In fact, the earliest jury trials had few formal procedures, and an elaborate
structure of rules of evidence and procedure was not initially considered
necessary. The need for such a structure was only recognised towards the end of
the 18th century when the English legal system underwent what has
been termed the “Adversarial Revolution.” This refers to the increasing
presence of lawyers in the trial process which until that point had been
dominated by the judge.[30]
1.18
‘Lawyerization’[31] led to
criminal proceedings becoming more centred around the presumption of innocence,
and also led to a clearer division between jurors and witnesses. As a result,
rules governing probative evidence, and what matters could be presented to the
jury, became extremely important. Once the trial process became organised
around the notion that the elements of the case must be proven by the parties
before a jury, the parties began to gain more control over production of
evidence in court, and by the end of the 18th century a considerable
body of evidence law had been developed.[32]
1.19
The requirement that the parties prove their case led to a realisation
that the resolution of certain disputes of a technical or complex nature might
well require expert or specialised knowledge. However it appears that at the
outset the common law struggled to decide how best to acquire and allow such
knowledge. In time, three main procedures for importing expert knowledge were
developed which will now each be discussed in greater detail.
1.20
In some instances, special juries composed of persons knowledgeable in
the subject matter of the particular case were empanelled, effectively a jury of
experts. Elsewhere, most notably in courts of admiralty, the court itself
appointed ‘court assessors’, to advise it in matters beyond its knowledge. In
these cases the court had discretion to pass instructions on to the jury or to
be guided by the assessor in making its own findings.[33]
Later on, expert witnesses were hired by the parties or the court, a system
that has evolved into the present one. The development of these three
procedures will now be discussed.
C
Special Juries
(1)
Introduction
1.21
The first method of enhancing the knowledge of the jury was not through
the use of experts as witnesses or court advisors, but in fact through ‘Special
Juries.’ Oldham argues that the term ‘special jury’ can have a number of
different meanings, but for the purpose of this discussion the term refers to
jurors who were specially selected because their special knowledge or
experience made them particularly qualified in the facts of the dispute in
question, or gave them a special expertise in a particular subject matter. [34]
1.22
The concept of expert or special juries was not a new or novel
development, and there are indications of this system dating from as far back
as the 14th century. [35] According to Thayer;
“What we call the ‘special jury’ seems always to have been
used. It was the natural result of the principle that those were to be summoned
who could best tell the fact, the veritatem rei.”[36]
1.23
By the end of the 19th century, the use of special juries was
widespread. In England, the first legislation to provide for the regulation of
special juries was An Act for the Better Regulation of Juries,[37]
which provided for the use of such juries wherever they were requested by the
parties or they were considered necessary. The 1730 Act was extended to apply
in Ireland by sections 3 to 6 of An Act for the Amendment of the Law with
Respect to Outlawries, Special Juries and the Future Effects of Bankruptcy in
Certain Cases 1777,[38] and section
21 of the English Jury Act 1826.[39] The Irish Jury Act 1833[40] was the first express legislative mention of special
juries in this jurisdiction.[41]
1.24
It should be noted however, a number of different types of special
juries were used through the centuries; some of the most common ones will now
be discussed.
(2)
Juries of Neighbours
1.25
The earliest juries were required to be entirely composed of ‘next
neighbours’ i.e. members of the locality where the dispute arose.[42]
The reasoning behind this was that they were likely to be knowledgeable about
the events in question. They were known as ‘hundredors,’ and the jury
effectively amounted to juries of neighbours.
1.26
These early jurors were permitted and in fact expected to learn the
facts of the case through their own means,[43]
therefore having a jury of inhabitants from the area where the event occurred
increased the likelihood of their being well-informed about the event in
question.[44] In time, the
requirement for an entire jury made up of ‘next neighbours’ became unmanageable,
and the rule was altered to require that only a certain number of the jury come
from the particular ‘hundred’ in question.[45]
These men were then expected to inform the other jurors of the background to
the issues.[46]
1.27
However, at this time the distinction between jurors and witnesses, and
how information was to be imported into the case, was unclear. The requirement
that the jurors be knowledgeable about the facts of the case did not
necessarily mean that their knowledge was firsthand, and it was common for
jurors to consult witnesses and other sources of evidence before reaching their
verdict.[47] As
Holdsworth explains,
“…the issue of how a jury came by its knowledge was not
originally a matter with which the law concerned itself.”[48]
1.28
The transformation from this type of jury of witnesses into a jury of
impartial fact-finders took place gradually over several centuries, and a great
deal of uncertainty remains regarding this transformation.[49]
For a considerable period of time, the jury as witnesses coexisted with the
jury as fact-finder.[50]
1.29
Gradually, however, parties were allowed to nominate witnesses to
testify publicly in court, and as a result of this development of formal
witness testimony, along with clearer rules of evidence and procedure, the
number of hundredors required declined through a series of statutes[51]
until the requirement was abolished completely for civil cases in 1705.[52]
Eventually, the same result was worked out in practice for criminal cases.[53]
(3)
All Female Juries
1.30
Another early example of a special jury was the jury of matrons de
ventre inspiciendo. These were all-female juries commissioned to
investigate women in issues relating to disputed pregnancy and in paternity
disputes. Such disputes were common in criminal cases, as a woman found guilty
of a capital crime was entitled to have the death sentence delayed if she could
show that she was pregnant until the child was born. In theory, on birth, the
punishment of the defendant could then be carried out but in practice, due to
the costs of rearing the newborn, the mother was often subsequently pardoned.[54]
As Lambard put it,
“[a female defendant was entitled to] have (for once onely)
the benefit of her belly, if it be found by women thereto appointed that she is
with child.”[55]
1.31
In order to determine if the defendant was pregnant, the court would
empanel an all-female jury under a writ de ventre inspiciendo, a writ to
‘inspect the belly.’ The jury would be sworn in[56]
and would then be led to a chamber where they would search and inspect the
defendant. The jury would subsequently return a verdict declaring whether or
not she was ‘quick with child.’[57]
1.32
If the jury found that she was pregnant, the court would stay her
punishment until the next assize. Oldham reports that there is evidence that
‘pleading her belly’ was a common phenomenon among female criminal defendants.[58]
However, the defendant would only be entitled to such a reprieve once only. As
Blackstone reasons:
“But if she once hath had the benefit of this reprieve,
and been delivered, and afterwards becomes pregnant again, she shall not be
entitled to the benefit of a further respite for that cause. For she may now be
executed before the child is quick in the womb; and shall not, by her own
incontinence, evade the sentence of justice.”[59]
1.33
The writ was also occasionally used in civil cases. Blackstone explains
that a jury de ventre inspiciendo would be empanelled in situations
where a widow “feigns herself with child, in order to exclude the next heir,
and a suppositious birth is suspect to be intended.”[60]
(4)
Juries of Foreigners
1.34
The trial of ‘aliens or foreigners’ also historically gave rise to a
specially constituted jury, the jury of the half tongue, or de medietate
linguae, although this type of jury was not technically designated as
‘special.’[61]
1.35
A writ de medietate linguae provided that in trials where the
defendant was a foreigner, half the jury could be empanelled from juries
consisting of half denizens and half foreigners, so that the trial would be
more impartial.[62] Thayer
argues that the reasoning behind the jury de medietate linguae, which
was commonly referred to as the party jury, were considerations of policy and
fair dealing, rather than on a wish to provide a well-informed or expert jury.[63]
1.36
The jury de medietate linguae in fact originated in the treatment
of the Jews in medieval England. In 1190, a charter given by King Richard I
allowed all Jews - who were considered resident foreigners rather than British
subjects - to be tried before a half Jewish jury.[64]
A century later, after the expulsion of the Jews from England, foreign
merchants took over their role as the primary commercial class. As a result, at
common law the right of these common merchants to be tried by a jury half
composed of their own countrymen began to develop.
1.37
The right was built on in a number of statutes culminating in a statute
of 1354 which codified the right to a half foreign jury where one party
was a foreigner, and an entirely foreign jury where both parties were
foreigners, in both civil and criminal trials.[65]
Although the right was reaffirmed a century later, the party jury gradually
began to decline and was banned outright in the Naturalisation Act 1870,[66]
as it was no longer perceived that this was the best way to ensure that the
trial was fair.
(5)
Juries of Merchants & Other Professionals
1.38
The use of special juries was also a common occurrence in trade disputes
in the city of London from as early as the 1300s. Throughout the 14th
and 15th Centuries, it was often the case that supervisors of the
different guilds would bring cases before the mayor against those who were
alleged to have committed serious breaches of the trade regulations. The mayor
would subsequently summon a jury composed of men of the particular trade in
question who would decide if there had been a breach of the trade regulations.
The mayor would then impose sentence based on this decision.[67]
Examples of breaches of trade regulations include fishing with meshes smaller
than those required, improper tanning of hides, improper hats and caps, false
tapestry and false wine.[68]
1.39
As well as guild supervisors bringing grievances to the mayor, it also
often occurred at this time that private persons, individually or through the
public prosecutor, would bring complaints that they were mistreated by a
trader, for example that they were sold putrid meat or bad wine. Here also men
in the same trade as the accused, and who were knowledgeable about the facts of
the case, would be summonsed to give their decision, which the mayor then used
in sentencing.[69]
1.40
There are many examples of cases over the centuries that followed which
reveal the willingness of the court to allow juries to be specially constituted
of members of certain trades or professions where it was considered necessary.
Oldham cites Sayles early King’s Bench cases[70]
where juries of clerks and attorneys were empanelled in cases dealing with such
issues as falsification of writs by attorneys or extortion by court officials.
These expert juries of enquiry became more frequent as time went on as the
problem of corrupt behaviour of court officers persisted.[71]
1.41
In 18th century London, largely under the auspices of Lord
Mansfield, the aid of merchant juries was more and more frequently invoked.
This had a significant contribution on the development of a body of commercial
law.[72]
Legislation was enacted to provide for the use of special juries wherever they
were requested by the parties or were considered necessary.[73]
Such juries were very commonly used in insurance cases, or cases involving
bankers’ customs, as it was considered that the special jurors’ experience
provided a helpful source of knowledge and expertise for the court and the
parties to the case.[74]
1.42
However, such juries were not only commonly used at this time within the
commercial field; they were also widely used in business disputes such as
bankruptcy and debt, as well as a broad range of criminal and civil actions
such as libel, slander, conspiracy, criminal conversation, bribery, trespass,
assault, assumpsit, trover, replevin, debt, mandamus, actions for ejectment,
actions upon bills of exchange, and bonds.[75]
(6)
The Decline of the Special Jury
1.43
By the mid 19th century, special juries were being requested
by parties not to provide specialist knowledge, but to ensure a higher class of
juror than would otherwise appear, and special juries were available wherever a
party was willing to pay for it.[76] As Sir
William Erle commented while testifying before the Select Committee on Special
and Common Juries of the House of Commons which was set up to examine the
function of juries:
“I believe the intention of the Legislature has been
departed from, and to my mind a very pernicious custom has been introduced,
whereby the right to resort to a special jury has been so given as to foster
the notion of there being class prejudices pervading the jury box, and that a
party wanting to rely on a certain class of prejudice, would take one jury, or
the other accordingly.”[77]
1.44
Further allegations of corruption and abuse of the special jury system
emerged around this time, for example a scathing review by Jeremy Bentham on
Jury Packing. In this, he referred to special juries as “an engine of
corruption,” and “the Guinea Trade,” and called special jurors “Guineamen,” a
reference to the fact that a successful profession could be made as a juryman
as they were paid one guinea per case (in sharp contrast with the shilling or
eightpence paid to common jurors).[78]
1.45
A more caustic description given to special jurymen was “Guinea pigs,” which highlights
the underlying feeling that the authorities were capable of manipulating the
selection process to ensure that only chosen men formed the panel of jurors. [79]
1.46
Another problem that was increasingly recognised at the end of the 19th
century is the fact that the special jury system was being abused where a
defendant sought to delay the trial or gain more time. The defendant would
obtain a rule for a special jury, and this effectively resulted in the trial
being postponed.[80]
1.47
Two major statutory reforms were enacted to address these criticisms.
The County Juries Act 1825,[81] sought to
enhance the qualifications and quality of special jurors by requiring them to
be merchants, bankers, esquires, or persons of higher degree, however, the
absence of an express definition of these terms led to inconsistent and
discretionary application of the Act’s provisions in different localities. [82] The act also set up a system of anonymous balloting for the
selection of jurymen in order to address criticisms about jury packing.[83]
1.48
The Juries Act 1870[84] further attempted to redeem the special jury system by
establishing further procedural rules for special jurors,[85]
and by altering the qualification requirements of special jurors.[86]
However, despite these attempted reforms, the special jury’s popularity
continued to decline, and in the Juries Act 1949 it was abolished in
England in all but the very narrowest category of cases.[87]
1.49
The abandonment of the special jury occurred earlier in this
jurisdiction, as section 66 of the Juries Act 1927 provided for the
abolition of the two-tiered system of jurors.[88]
D
Court Assessors
1.50
An alternative to enlisting the aid of a special jury that has been used
over the centuries by common law courts, most commonly in admiralty cases, was
the use of court assessors, or advisors. The purpose of this was to give the
court specialist experience, skill or knowledge which it might not normally
possess.[89] A concise
definition is provided by Dickey who describes a court assessor as:
“[A] person who, by virtue of some special skill, knowledge
or experience he possesses, sits with a judge during judicial proceedings in
order to answer any questions which might be put to him by the judge on the
subject in which he is an assessor.”[90]
1.51
The use of assessors originated in the admiralty courts, and the
earliest reported example dates from the 16th century.[91]
Although there are examples of other courts enlisting the aid of assessors,
they were most frequently invoked in nautical proceedings. Statutory
provisions remain in force which allow for the appointment of court assessors
in court proceedings generally[92] but their
actual use, outside nautical proceedings, appears to be limited to patents
cases and railway investigations.
1.52
There were many similarities between a court assessor and an expert
witness, as the function of both is to furnish the court with specialist knowledge
and information in areas in which they are particularly skilled. Indeed, in
some cases assessors were referred to as witnesses, and the information they
provide as evidence, a practice that was criticised by Viscount Simons L.C. in Richardson
v Redpath, Brown & Co Ltd.[93]
“To treat…any assessor, as though he were an unsworn witness
in a special confidence of the judge, whose testimony cannot be challenged by
cross-examination and perhaps cannot even be fully appreciated by the parties
until judgment is given, is to misunderstand what the true functions of
assessors are. He is an expert available for the judge to consult if the judge
requires assistance in understanding the effect and meaning of technical
evidence.”
1.53
This demonstrates that the problem with referring to assessors as
witnesses is that key differences existed in reality in the way the two carried
out their role and duties. Expert witnesses were appointed and
remunerated by the parties whereas assessors were appointed by the court and
remuneration depended on the governing statute or the discretion of the court.
Furthermore, assessors were not witnesses and so were not sworn and were not
subject to cross examination.
1.54
Another difference lies in the fact that assessors are required to
furnish the court with advice, in private, to enable it to make its decision,
not to bolster the arguments of a party. Therefore, they are not concerned with
the weight or balance of evidence, and should not be asked to decide on the
issues.[94] The
distinction between the two is supported by the rule, recognised in a number of
English cases throughout the 18th century, that expert evidence
cannot be adduced on a matter within the scope of knowledge and experience of
assessors assisting the court.[95]
1.55
Although it appears that there is considerable value attached to the
role of assessors, unease was expressed in a number of cases in the 19th
century with their function.[96] Regardless
of the advice given, it is still the function of the judge to decide on the
issues, but increasing concern began to be raised that judges might not fully
appreciate this fact and might attach undue importance to the assessors’ views.
In The Beryl[97] case Brett L.J. stated, in the context of nautical
proceedings:
“The assessors who assist the judge take no part in the
judgment whatsoever: they are not responsible for it, and have nothing to do
with it. They are there for the purpose of assisting the judge by answering any
question, as to the facts which arise, of nautical skill.”
However, later on he recognised the reality that:
“Still, it would be impertinent in a judge not to consider as
almost binding upon him the opinion of the nautical gentlemen who, having ten
times his own skill, are called to assist him.”[98]
1.56
The perceived danger that a process whereby a judge receives undisclosed
specialised knowledge or advice from an assessor whose is under no obligation
to disclose the advice given to the judge could lead to an effective transfer
of the decision making function from judge to assessor, might well account for
the general decline in the use of court assessors. Today, they are most
frequently appointed in nautical proceedings and their use elsewhere is
limited.
E
Court Experts and Expert Witnesses
1.57
The use of special juries declined in the early 20th century and the use
of expert witnesses, who were summoned to give advice to the court, greatly
increased. However, expert witnesses first made tentative appearances much
earlier than this.
1.58
There are many examples of cases dating from as far back as the 14th
century where skilled persons were summoned to assist the court and, as is
evident, when later on concrete rules of evidence were being developed and
enforced, the use of expert witnesses continued despite the rule prohibiting
opinion evidence.
1.59
Initially, the court itself would summon skilled persons to assist it in
deciding on a question of fact where it did not possess the requisite
knowledge. As early as 1345, in an appeal of mayhem,[99]
the court enlisted the aid of experts when surgeons from London were summoned.[100]
Here, the question to be decided by the court was if the appellant should be
entitled to bring a case before them, a question which hinged on whether or not
his wound was fresh, and thus whether it amounted to a mayhem.[101]
1.60
Similarly in 1494 ‘masters of grammar,’ were summoned to explain the
meaning of a Latin word to help construe a bond[102]
and in 1554 the court in Buckley v Rice-Thomas[103]
confirmed that in the context of the case at hand it should be permissible for
the court to call grammarians where its own Latin was lacking.[104]
Saunders J used the opportunity to give a general statement on when the use of
experts might be accepted:
“If matters arise in our law which concern other sciences or
faculties, we commonly apply for the aid of that science or faculty which it
concerns. Which is an honourable and commendable thing in our law. For thereby
it appears that we do not despise all other sciences but our own, but we
approve of them and encourage them as things worthy of commendation.”[105]
1.61
To further this argument, Saunders J cites earlier examples of cases
where the court enlisted the aid of experts in coming to its decision. Amongst
these:
“….a case where excommengement was pleaded against one, and
the party said he ought not to be disabled thereby, because there was an appeal
pending thereof, there the Judges enquired of them that were well versed in the
canon law touching the force thereof”[106]
1.62
This demonstrates that the practice at this time was for the court,
rather than the parties to call the experts. Holdsworth explains that experts
at this time were more in the kin of “expert assistants to the court” than
witnesses called by the parties, which “naturally prevented any question from
being raised as to their information in the aspect of testimony to the jury.”[107]
1.63
Therefore while the court enlisted the aid of experts, they were not
expert witnesses in the modern sense, because as Rosenthal argues, “We
can look for the expert witnesses only when proof of facts by witnesses,
rather than by the personal knowledge of the tribunal, becomes accepted.”[108]
1.64
In 1562 the Statute of Elizabeth was passed which compelled
witnesses to appear in court.[109]
This greatly contributed to the development of the modern system of deciding
the case on the basis of the testimony by witnesses before the jury and by the
mid 17th century, a clearer distinction could be made between jurors
and witnesses. By the 18th century the adversarial system and the
concept of proof by witnesses before the jury had firmly taken shape.
F
Theory and Nature of the Opinion Rule
1.65
As mentioned above, by the end of the 18th century, once the
notion that parties were responsible for their own proof in court had taken
hold, they began to gain more control over production of evidence and examination
of witnesses in court, and a considerable body of evidence law had been
developed.[110] A number
of exclusionary rules developed to govern the content and presentation of
evidence before the jury, most notably the rule against hearsay, which sought
to limit witness testimony to that based on personal observation, and the
opinion rule, which sought to control the way in which witnesses gave their
testimony.[111]
1.66
The opinion rule remains one of the chief exclusionary rules of evidence
today and provides that witness testimony in the form of opinion or inference
is inadmissible in both civil and criminal proceedings, and witnesses are
confined to giving evidence of facts. The doctrine was in fact summarised as
early as 1651 by Vaughan C.J. in Bushell's Case;[112]
“The verdict of a Jury and Evidence of a Witness are very
different things, in the truth and falsehood of them; a Witness swears but to
what he hath heard or seen, generally or more largely, to what hath fallen
under his senses. But a Juryman swears as to what he can inferr and conclude
from the Testimony of such Witnesses by the act and force of the Understanding,
to be the Fact inquired after, which differs nothing in the Reason, though much
in the punishment, from what a Judge, out of various cases consider’d by him,
inferrs to be the Law in the Question before him.”
1.67
Wigmore argues that in the 18th century when the rule began
to develop, it was concerned with testimonial qualifications and so sought to
ensure that only ‘men of science’ would testify on ‘matters of science.’[113]
However, nowadays the primary rationale for the rule is that it prevents
witnesses from usurping the role of the tribunal of fact whose job it is to
make inferences and reach conclusions on the basis of facts placed before them.
As per Kingsmill Moore J in the more recent case of AG (Ruddy) v Kenny:[114]
“It is a long standing rule of our law of evidence that, with
certain exceptions, a witness may not express an opinion as to a fact in
issue...It is for the tribunal of fact – judge or jury as the case may be – to
draw inferences of fact, form opinions and come to conclusions.”[115]
1.68
Wigmore contends that a related purpose of the rule is to ensure that
unnecessary testimony is not placed before the jury, as he explained:
“[w]herever inferences and conclusions can be drawn by the
jury as well as the witness, the witness is superfluous.”[116]
1.69
The opinion of an ordinary witness is thus seen as having no useful
bearing on the case. This rationale was also referred to by Kingsmill Moore J
in AG (Ruddy) v Kenny,[117]
where he explained that the rule ensures that possible hazards such as
“prejudice, faulty reasoning and inadequate knowledge,” which might be
introduced if a witness were allowed to give opinion evidence, are avoided.[118]
1.70
The development in the exclusionary rule of opinion evidence in the 18th
century was accompanied by the simultaneous development of a wide exception to
the rule in favour of expert witnesses. It can be seen that the ‘expert
witness’ developed as an exception to the developing adversarial structure, as
according to Golan, it was “the only type of witness the new system could not
rationalise under its evolving doctrines.” [119]
1.71
Expert witnesses became a distinct legal entity from other witnesses, as
they were not required to observe the facts of the case personally in order to
be permitted to give an opinion on them in court.[120]
In the absence of any other legal test, the opinion rule therefore provides the
principal legal distinction between ordinary and expert witnesses.[121]
1.72
This exception to the opinion rule in favour of experts is well
evidenced by examples from the late 17th century onwards where
experts were permitted to give testimony of their conclusions to the jury. For
example in Alsopp v Bowtrell[122] the jury
accepted the testimony of physicians who argued in a disputed legitimacy case
that a child born forty weeks and nine days after the death of the mother’s
husband could well be his child, as the birth could have been delayed by ill
usage and lack of strength.
1.73
In the Witches Case[123] a doctor
summoned to testify clearly believed the accused persons were witches and
supported this belief with a scientific explanation of the fits they underwent.
However, it is not clear from the judgment who called the doctor to testify.[124]
1.74
In the 1678 murder trial R v Pembroke[125] physicians were called by both sides to testify as to
the real cause of the deceased’s death and as to whether or not a man can die
of his wounds without fever. Hand points out that the only striking feature of
this case is that at no stage in the course of proceedings was the giving of
such testimony seen as unusual.[126]
This implies that the giving of opinion evidence by experts was by this stage
an accepted exception to the rule against opinions.
1.75
Similarly, in a case from the following year, R v Greene,[127]
a physician was summoned by the prosecution to support the theory that the
victim’s death could not have been caused by wounds on his body as there was no
blood and that he must have therefore died of strangulation.
1.76
There are several cases dating from the 18th century which
show that by then the practice of giving expert testimony was well settled and
accepted.[128] However,
the rules of evidence also began to be more strictly enforced, including the
general rule excluding the opinion of witnesses who were not experts.
1.77
This was emphasised in R v Heath[129] a perjury
case where the defendant swore that Lady Altham had never had a child. In the
course of proceedings, a witness, who had testified he had seen Lady Altham
with “a big belly” was asked “what do you apprehend became of that big belly?”
The court stressed that the opinion of a witness can only be given where it is
the best evidence available in the case, highlighting the exclusionary nature
of opinion evidence.[130]
1.78
Similar developments took place in civil cases. Folkes v Chadd,[131]
is regarded as the seminal precedent that established the admissibility of
expert testimony and confirmed that expert witnesses could testify directly to
the jury as a witness for either party.[132]
Here, a trespass action was taken against the defendant for threatening to cut down
an embankment erected by the plaintiffs to prevent overflowing of the sea on to
the plaintiff’s land. The defendants argued that they were justified and
entitled to cut down the embankment as it had caused the flooding of the
harbour leading to extensive damage.
1.79
On appeal, Lord Mansfield ordered a new trial on the basis that the
testimony of a renowned engineer in favour of the plaintiffs, which amounted to
an opinion about the cause of the damage, should have been held admissible. It
had been argued that the testimony should be excluded as it “was matter of
opinion, which could be no foundation for the verdict of the jury, which was to
be built entirely on facts, and not on opinions.”[133]
This however was rejected by Lord Mansfield who used this opportunity to
outline the parameters of the admissibility of expert testimony:
“It is objected that Mr. Smeaton is going to speak, not as to
facts, but as to opinion. That opinion, however, is deduced from facts which
are not disputed – the situation of banks, the course of tides and of winds and
the shifting of the sands….The question then depends on the evidence of those
who understand such matters; and when such questions come before me, I always
send for some of the brethren of the Trinity House.[134]
I cannot believe that where the question is, whether a defect arises from a
natural or artificial cause, the opinions of men of science are not to be
received….the cause of the decay of the harbour is also a matter of science,
and still more so, whether the removal of the bank can be beneficial. Therefore
we are of the opinion that his judgment, formed on the facts, was very proper
evidence.”[135]
1.80
The development of the opinion rule gave rise to another related rule of
evidence namely the requirement for a hypothetical question where the expert
has not observed the facts at issue himself. This limits the questions that can
be asked of the expert where he does not have personal observation, and
provides a means for the jury to test the opinion by explaining the grounds for
the opinion.[136]
1.81
The hypothetical question requirement is first to be seen in cases from
the late 17th and early 18th century when the distinction
between ‘opinion’ and ‘fact’ became more clear. Hand cites the celebrated
murder case of Spencer Cowper[137]
where the question arose whether the deceased had been drowned and where
surgeons and sailors were enlisted to answer hypothetical questions on the
circumstances under which a deceased body would sink.
1.82
In the murder trial R v Ferrers[138] the accused raised the defence of insanity. To support
this defence, a number of lay witnesses were called to testify about the
purported insane acts committed by the defendant. Subsequently, a surgeon was
called and asked if he would conclude based on the facts and the testimony of
the preceding witnesses, that the defendant was insane. Pursuant to the Crown
Counsel’s objection to this line of questioning, Lord Mansfield held that the
defendant was not entitled to put such a general question to the surgeon but
that he could specify the specific facts, already submitted in evidence, on
which the surgeon would base his opinion, even though the surgeon had not had
firsthand experience of the purported acts of the defendant.[139]
1.83
Similarly, in Beckwith v Sydebotham,[140] Lord Ellenborough confirmed that expert witnesses were
entitled to be summoned, even where they had not had firsthand experience with
the facts of the issue. However, the point was stressed that they were required
to give their opinion on the basis of hypothetical questions:
“As the truth of the facts stated to them was not certainly
known, their opinion might not go for much; but still it was admissible
evidence. The prejudice alluded to might be removed by asking them, in
cross-examination, what they should think upon the statement of facts contended
for the other side.”[141]
1.84
Much discussion on the issue was given in Mc'Naghten's Case[142] in 1843 where the question arose if a medical expert
could rule on the sanity of the accused at the time of the crime from the
testimony of the witnesses at the trial, without having firsthand experience of
the accused prior to the trial. The majority of the Justices held that he could
not be asked his opinion on such issues, as explained by Tindal J:
“...because each of those questions involves a determination
of the truth of the facts deposed to, which it is for the jury to decide, and
the questions are not mere questions upon a matter of science, in which case
such evidence is admissible.”[143]
1.85
Tindal J’s judgment highlights that the requirement for hypothetical
questions has largely been motivated by a need to prevent the usurpation by the
expert of the jury’s power and function to decide on the facts of the case.
However Wigmore argues that, beneficial as the hypothetical question rule is,
“Misused by the clumsy and abused by the clever, [it] has in
practice led to intolerable obstruction of truth.”[144]
G
A Growing Recognition of the Problems with Expert Testimony
1.86
The foregoing discussion demonstrates that the adversarial system also
had a significant effect on the manner in which experts gave their opinions in
court. Whereas previously experts were drafted in by and to be of assistance to
the court, from the 18th century onwards, as demonstrated by Folkes
v Chadd,[145] experts
began to be directly employed by the parties themselves to help advance their respective
cases. Golan explains that “as the court assumed a neutral position, free reign
was increasingly given in the courtroom to partisan views.”[146]
1.87
However, decisions from this time show a considerable lack of unease
about the potential problems that could arise with the switch from court
appointed, independent and impartial expert advisors to partisan ‘experts for
hire.’ For example in Folkes v Chadd,[147]
Lord Mansfield explained his decision to allow the opinion of the expert
engineer on the basis that “the opinion of men of science” can be of
considerable value where the issue in question is “a matter of science.”[148]
As such, he failed to refer to the fact that the particular man of science in
question had been specifically selected by one of the parties to advance their
case.
1.88
Golan argues that this shows little awareness of the potential
difficulties that might arise with partisan experts.[149]
He points out that the failure to identify potential problems proved
unfortunate, as “by the mid 19th century partisan expert testimony
become an acrimonious and persistent thorn in the side of the common law.”[150]
1.89
As the 19th century progressed, the growth and spread of
industry meant the types and quantity of expert witnesses appearing in trials
had rapidly increased. At the same time, an undercurrent of dissatisfaction
with the expert witness system had become stronger and its opponents louder.
1.90
In Severn, King and Company v Imperial Insurance Company[151]
the types of problems that could arise with expert testimony, such as
conflicting experts, became apparent. Here, the plaintiff’s sugar factory had
been destroyed by fire and they took a civil case against the defendant
insurance company to recover their losses when the company refused to pay out
compensation. The defendants argued that they were entitled to refuse to pay
out as their contract with the plaintiffs had been rendered void by the fact
that the plaintiffs had, without informing the insurance company, introduced a
new method of sugar purification three months prior to the fire, and that this
method was considerably more dangerous than the previous method used.
1.91
At trial, the case essentially consisted of conflicting evidence from a
torrent of distinguished men of science on either side testifying as to the
dangers involved in the different methods of sugar refining, arguments backed
up with contradictory definitions, observations and experiments and conflicting
evidence.[152] According
to Dallas CJ:
“[the experts] left the court in a state of utter
uncertainty; and the two days during which the results of their experiments had
been brought into comparison, were days not of triumph, but of humiliation to
science.”[153]
1.92
The Times reported Dallas CJ’s harsh criticism of the
partisanship and bias evident from the conflicting experimental evidence
adduced by experts on both sides:
“It must be a matter of general regret to find the
respectable witnesses to whom [Dallas CJ] was alluding drawn up, not on one
side, and for the maintenance of the same truths, but, as it were, in martial
and hostile array against each other.”[154]
1.93
Similar criticisms were made about the practice of ‘shopping’ for
partisan or biased experts by Jessell LJ in Thorn v Worthing Skating Rink Co:[155]
“A man may go, and does sometimes, to a
half-a-dozen experts. I have known it in cases of valuation within my own
experience at the Bar. He takes their honest opinions, he finds three in favour
and three against him; he says to the three in his favour, will you be kind
enough to give evidence? And he pays the three against him their fees and
leaves them alone: the other side does the same. It may not be three out of
six, it may be three out of fifty. I was told in one case, where a person
wanted a certain thing done, that they went to sixty-eight people before they
found one.”[156]
1.94
As these cases demonstrate, by the mid 19th century, judges
were increasingly critical of ‘expert shopping’ and of those expert witnesses
who acted as partisan advocates for the party they represented manifested by
the experience of experts being in constant conflict. Experts employed in such
cases were highly paid, therefore, as Golan puts it:
“…their conduct was seen as the corruption of their
science, of selling its credibility to the higher bidder.”[157]
1.95
Despite these criticisms, and despite numerous calls from both members
of the scientific and legal communities for reform of the system of expert
testimony to the effect that the expert witness would be employed independently
from the parties or as an advisor to the court itself, as the 19th
century progressed the system remained one whereby clients could shop around to
find an expert who would give a suitable opinion. As Golan explains;
“The scandals were frequent, but they were generally
justified by the legal profession as a price worth paying in what was believed
to be a competitive free market of legal evidence that constituted both the
best mechanism of proof-testing and the best protection from abuse of executive
power.”[158]
1.96
At the end of the 19th century therefore, the expert witness,
in the modern sense of the term, had become a key figure in court proceedings.
As we shall see in the following chapters, over time stricter admissibility and
procedural requirements have been applied to the system of expert testimony
which has helped to reduce the potential for abuse.
1.97
However, the historic analysis in this chapter reveals that the key
criticisms of expert testimony, still frequently raised today, have existed
ever since expert witnesses have been used in the courts and therefore this
debate is not a new but a considerably antiquated one.
H
Conclusion
1.98
Today, the opinion rule, which holds that witness testimony in the form
of opinion is inadmissible in both civil and criminal proceedings, and that
witnesses are confined to giving evidence of facts, is firmly entrenched in the
rules of evidence. As per Kingsmill Moore J in AG (Ruddy) v Kenny:[159]
“It is a long standing rule of our law of evidence that, with
certain exceptions, a witness may not express an opinion as to a fact in
issue...It is for the tribunal of fact – judge or jury as the case may be – to
draw inferences of fact, form opinions and come to conclusions.”[160]
1.99
The admissibility of expert evidence is the principal exception to the
rule. An opinion may be given by a witness who has expertise in a particular
area that is relevant to the issue at hand. The purpose of this exception is
that such evidence provides the judge or jury with the necessary specialist
criteria for testing the accuracy of their conclusions, and enables them to
form their own independent judgment by applying these criteria to the facts
proven in evidence.[161]
1.100
In order to adduce expert evidence, the party will need to prove that
the evidence is needed in the circumstances and that the person in question is
suitable to give expert evidence on the issue. The burden of proof of expertise
rests on the party wishing to adduce the witness in evidence.
1.101
It is ultimately the decision of the court to allow evidence of experts.
The two main requirements that a party must satisfy in order to be permitted to
adduce expert evidence in court are;
·
It must be shown that the expert evidence is necessary and relevant in
the circumstances
·
It must be established that the witness is a qualified expert
1.102
These two requirements will be discussed in greater detail in the
following chapters.
.png){kind=small}
2
CHAPTER 2 ADMISSIBILITY
OF EXPERT EVIDENCE
A
Introduction
2.01
This chapter sets out the current rules and procedures relating to the
use of expert evidence in Ireland. Part B outlines the main rules of evidence
which apply to the giving of expert testimony and the necessary elements that
need to be proved. Part C lists the various categories of issues which the
court allows to form the subject matter of expert testimony.
2.02
Part D examines the permitted scope of expert testimony and discusses
how the court determines how a particular matter is outside the range of
knowledge of the finder of fact. Part E discusses the reasons behind the
development of strict rules of evidence applying to expert witnesses by
highlighting some of the problems that can arise in this regard, including the
possibility of the usurpation by the expert witness of the role of the judge or
jury.
2.03
Finally, Part F queries whether there is a need to impose an additional
barrier to admissibility to ensure expert evidence is reliable by introducing a
formal reliability test that all parties seeking to adduce expert evidence
would have to satisfy.
B
Rule against Opinion Evidence
2.04
The general rule is that witness testimony in the form of opinion is
inadmissible in both civil and criminal proceedings, and witnesses are confined
to giving evidence of facts. The primary rationale for this rule is that it
prevents witnesses from usurping the role of the tribunal of fact whose job it
is to make inferences and reach conclusions on the basis of facts placed before
them.[162] As
Kingsmill Moore J stated in AG (Ruddy) v Kenny:[163]
“It is a long standing rule of our law of evidence that, with
certain exceptions, a witness may not express an opinion as to a fact in
issue...It is for the tribunal of fact – judge or jury as the case may be – to
draw inferences of fact, form opinions and come to conclusions.”[164]
(1)
Exception to Exclusionary Rule: Expert Opinion Evidence
2.05
The main exception to the exclusionary rule is that an opinion may be
given by a witness who has expertise in a particular area which is relevant to
the issue at hand. The purpose of this is to provide the judge or jury with the
necessary specialist criteria for testing the accuracy of their conclusions,
and enable them to form their own independent judgment by applying these
criteria to the facts proved in evidence.[165]
2.06
This was considered by Kingsmill Moore J in AG (Ruddy) v Kenny[166]
where he explained that:
“…the nature of the issue may be such that even if the
tribunal of fact had been able to make the observations in person he or they
would not have been possessed of the experience or the specialised knowledge
necessary to observe the significant facts, or to evaluate the matters observed
and to draw the necessary inferences of fact.”[167]
2.07
Based on the inherent subjectivity and potential for difficulties with
opinion evidence the exception to the exclusionary rule is strictly
interpreted. As will be discussed below, the admissibility of expert evidence
is governed by a number of rules and conditions in terms of the types of issues
on which expert opinion evidence will be permitted and the scope of evidence
that can be given.
(2)
Necessary Elements to Prove Necessity for Expert Testimony
2.08
In order to be authorised, the party will need to prove that expert
evidence is needed in the circumstances and that the person in question is
suitably qualified to give expert evidence on the issue. The burden of proof of
expertise rests on the party wishing to adduce the witness in evidence.
2.09
The two main requirements that a party must satisfy in order to be
permitted to adduce expert evidence in court are;
i)
It must be shown that the expert evidence is necessary in the
circumstances in that it is relevant and that it has probative value.
ii)
It must be established that the witness is a qualified expert.
2.10
The first of these requirements will now be examined in greater detail
by considering the various categories of expert evidence that have been
recognised and, once the evidence is considered as falling within a permitted
category, the scope of any such evidence that may be given.
2.11
The second of these categories involves an examination of how the courts
have interpreted the concept of an expert for the purposes of the giving of
expert testimony. This will be looked at in greater detail in chapter three.
C
The Categories of Expert Evidence
2.12
As a general rule, expert evidence will be allowed in relation to all
matters that are outside the scope of the knowledge and expertise of the finder
of fact. As Pigot C.B. pointed out in McFadden v Murdock,[168]
expert evidence can be given;
“…wherever peculiar skill and judgment, applied to a
particular subject, are required to explain results, and trace them to their
causes.”[169]
2.13
Notwithstanding this generality, Hodgkinson and James have identified a
number of different categories of evidence that can be given by expert
witnesses.[170] They find
that five such categories of expert evidence can be distinguished.
i)
Expert evidence of opinion, based on facts that have been adduced before
the court.
ii)
Expert evidence to explain technical or complex subject areas or the
meaning of technical terminology.
iii)
Expert evidence of fact, on an issue that requires expertise to fully
comprehend, observe and describe.
iv)
Expert evidence of fact, on an issue that does not require expertise in
order to fully observe, comprehend and describe, but which is a necessary
preliminary to the giving of evidence in the other four categories.
v)
Admissible hearsay of a specialist nature.
2.14
These categories however undoubtedly overlap and evidence sought to be
given in a particular case may easily fit into a number of different
categories.
(1)
Evidence in the form of Opinion Based on Facts Given in
Court
2.15
Expert opinion evidence is admissible in respect of any matter requiring
expertise that is necessary to explain a result or fact that is admitted in
court. It has long been recognised by the common law that “the opinion of
scientific men upon proven facts may be given by men of science within their
own science.”[171]
2.16
Ultimately whether the court will admit expert evidence will depend on
the particular issues which a party seeks to prove, and whether or not proof of
these issues would be assisted by expert evidence. However, if the issue is one
on which the finder of fact is qualified and capable of forming a sound
opinion, no expert evidence will be permitted as additional expertise will
essentially be superfluous. The principles governing the scope of expert
evidence and assessing the boundaries of knowledge of a jury or court will be
discussed below.
(a)
Types of Expert
Opinion Evidence
2.17
Expertise has however since expanded far beyond the traditional
boundaries of professional expertise as the growth in demand for specialised
knowledge has led to related growth in the demand for specialist expertise in
increasingly complex issues.
2.18
Another recent phenomenon is the development of a dedicated ‘litigation
support industry.’ This describes the trend where certain persons have
developed skills which are solely geared towards providing expert evidence, for
example accident reconstruction and care experts.[172]
2.19
The significantly lucrative nature of the expert evidence ‘industry’ has
fuelled this exponential growth, but also highlights the risk that the process
could be abused for profit if left unregulated. However, the list of categories
of subjects is not exhaustive and continues to expand.
2.20
Persons regularly called as experts are those in the medical field such
as physiotherapists, occupational therapists and psychologists who are often
called in personal injuries cases or to give an opinion on the mental state of
an individual.
2.21
Other growing areas of expertise include forensic accounting and
computer analysis to tackle the rise in fraud cases, engineering, actuary,
insurance, handwriting comparison and recognition, accident investigation,
facial mapping and identification, DNA, blood, urine, blood-alcohol and
drug-testing, educational issues, art-related matters such as antiques, and
ballistics.[173]
2.22
Where experts have been appointed to give opinion evidence about
particularly technical or scientific concepts, they may be required to give a
great deal of factual background about the complex concepts on which they base
their opinion. Therefore, this category of evidence often overlaps with the
categories discussed below, and in reality the evidence given by most experts
will entail a mixture of expert opinion and specialised fact.
(2)
Expert Evidence to Explain Complex Subject Matters or
Technical Terminology
2.23
One of the more common reasons a party seeks to have expert evidence
adduced, effectively the ‘bread and butter of expert evidence,[174]
is to explain complex, technical, or scientific topics to a judge or jury that
is completely unacquainted with these concepts.
(a)
Types of Factual
Expert Evidence
2.24
Whilst expert evidence of fact can be adduced on any issue that requires
it, in practice there are a number of technical and scientific areas that
typically form the subject matter of factual expert evidence.
(i)
DNA Principles
and Terminology
2.25
In recent years, the use of DNA evidence in trials, particularly in
criminal trials by the prosecution, has burgeoned. However, although the public
at large is now tentatively acquainted with the principles underlying the use
of such evidence, most of this knowledge has been imparted through the media,
television and film, and thus the public perception of such evidence may be
inaccurate. As a result, expert evidence continues to be necessary in any case
involving DNA evidence to explain to the jury the complex principles of DNA technology
and evidence.[175]
(ii)
Patent Cases
2.26
Expert witnesses are also frequently called in patent cases, as the
concepts involved are particularly intricate. Malek notes that experts are
called in patent cases to explain the technical terms employed, to instruct the
court on the relevant principles involved, to explain the nature, working,
characteristic features and probable mechanical results of an invention, as
well to identify old and novel concepts in the specification, outline the
extent of scientific advancement, and also, to point out differences and
similarities with rival inventions and explain the significance of these
similarities and differences.[176]
2.27
An interesting development in England occurred in a patent infringement
case involving DNA, Kirin-Amgen Inc and Ors v Hoechst Marion Roussel Ltd
& Ors[177]
where the House of Lords was, with the consent of the parties, given a series
of seminars in camera prior to the case by a Professor
of Biochemistry at Oxford University to explain the relevant aspects of
recombinant DNA technology. As pointed out by Lord Hope:
“This had the result of shortening the length of time that it
was necessary to devote to the hearing by several days…it is a course which
might usefully be adopted in the future in cases of this kind, where the
technology is complex and undisputed and the parties are willing to consent to
it.”[178]
(iii)
Foreign Law
2.28
Expert evidence will be required in order to explain and prove foreign
law. In O'Callaghan v O'Sullivan[179] Kennedy C.J. held that where an issue of foreign law
arises it must be “proved as a fact…it must be so proved by the testimony and
competence of expert witnesses shown to possess the skill and
knowledge….required for stating, expounding, and interpreting that law.”[180]
2.29
However, expert evidence is not permitted to prove a matter of domestic
law, presumably as this will not be considered an issue that should be outside
the knowledge of the finder of fact.[181]
(iv)
Customs and
Practices of a Trade or Profession
2.30
Expert evidence will also often be given by individuals well versed and
well qualified to give a detailed account of the normal practices and
procedures of a particular skill, trade or profession.
2.31
For example, it has been held in several Irish decisions that evidence
can been admitted to demonstrate the general practice of conveyancing
solicitors in performing searches on properties,[182]
to explain what the correct rent would be for a property of a certain size in a
certain area,[183] to outline
the general practice of medical practitioners in medical negligence cases,[184]
and to explain trade customs in particular professions, such as the giving of
holiday pay[185] or the
losses that would be incurred under certain sales conditions.[186]
2.32
The admissibility of expert evidence concerning customs and practices
was considered in McMullen v Farrell[187] where
Barron J held that evidence could be admitted about the nature of a solicitor’s
duty to his client and the everyday practice of solicitors. He relied on the
decision of Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp[188]
who held:
“Clearly, if there is some practice in a particular
profession, some accepted standard of conduct which is laid down by a
professional institute or sanctioned by common usage, evidence of that can and
ought to be received.”[189]
(v)
Technical or
Scientific Terminology
2.33
Non-opinion expert evidence may be required to interpret the correct
meaning to be applied to a technical term in a document such as a will or contract,
or to prove that a seemingly ordinary word had a particular meaning in the
context in which it was used, where such meaning is in dispute between the
parties. For example in Thorn v Dickens[190] expert
evidence was admitted to show that the testator had intended to gift his
property to his wife by using the term ‘all to mother’ as it was the custom in
the testator’s locality to refer to one’s wife as mother.[191]
2.34
In another patent infringement case, Hoechst Celanese Corporation v
BP Chemicals Ltd,[192]
Aldous LJ held that in deciding the meaning of technical words, a judge is
entitled to hear expert evidence from “the notional skilled man in the art”, as
there is no presumption in existence which finds that where words are used that
can have a technical meaning, they were intended to be given their technical
meaning:
“…it would be wrong to start the task of construction with any
preconceived idea. Having obtained the knowledge of the notional skilled man,
the [patent] Specification must be read as a whole to ascertain its meaning and
from that the court has to decide the ambit of the monopoly claimed using the
guidance in the Protocol [to the European Patent Convention].”[193]
2.35
Furthermore, in construction, intellectual property, or patent disputes,
the terms at issue are often outside the range of knowledge of the trier of
fact, and so the aid of experts is needed to explain complex concepts where the
parties are in dispute about the meaning of the term.[194]
2.36
However, the courts are flexible regarding the meaning of the ‘skilled
man’, and in the interpretation of technical or complex concepts or language,
copious qualifications or academic experience will not always be necessary,
depending on the concept that needs to be interpreted.
2.37
For example in the copyright infringement case Confetti Records v
Warner Music[195]one
of the claimant’s arguments was alleged derogatory treatment of a rap song that
he had composed, due to the overlay of the song with a rap containing references
to violence and drugs.[196] In order
to determine this issue, the court had to interpret the lyrics of the rap, many
of which were in slang commonly used by drug dealers. As pointed out by Lewison
J;
“This led to the faintly surreal experience of three
gentlemen in horsehair wigs examining the meaning of such phrases as “mish mish
man” and “shizzle (or sizzle) my nizzle”.”
2.38
Ultimately the claimant’s argument of derogatory treatment failed as
Lewison J held that although that the words of the rap were in
a form of English, they were for practical purposes a foreign language, and
thus required an expert in such language to interpret, which the claimant had
failed to prove.
2.39
Lewison J appeared to be of the opinion that the requisite expert on
such matters would be a drug dealer acquainted with such terminology, although
he admitted that “the occasions on which an expert drug dealer might be called
to give evidence in the Chancery Division are likely to be rare.”
(vi)
Meaning of
Foreign Words
2.40
The court may also receive expert evidence as to the meaning of foreign
words, where the language is out of the range of knowledge of the court, but
the legal effect of these words remains a matter for the courts to determine.[197]
2.41
The service provided by translators can also be considered under this
category of expert evidence.[198] The right to an interpreter is laid out in Articles 5 and 6
of the European Convention on Human Rights[199]
as incorporated into Irish law by the European Convention on Human Rights
Act 2003. Court translators are commonplace nowadays in many cases
coming before the Irish courts, and the Courts Service have access to
interpreters in 210 languages and dialects through the use of private agencies.[200]
2.42
However, the use of such interpreters in Ireland has been the subject of
much criticism, as it has been pointed out that no process is provided where
interpreters can be trained and tested and no qualifications are necessary or
required in order to work as a court interpreter.[201]
2.43
In the Court of Criminal Appeal decision in The People (DPP) v Yu Jie[202]
one of the applicant’s grounds for appeal was based on the fact that the
interpreter provided by the Gardaí to question to applicant while in custody,
was in fact a Chinese policeman who was working for Interpol. This fact was not
made known to the applicant at the time, but he discovered this by looking at
the interpreter’s laptop during the course of questioning.
2.44
The applicant argued that the realisation that it was a Chinese police
officer may have in some way inhibited the Applicant, particularly as there is
no right to silence under questioning in his own country.
2.45
The Court of Criminal Appeal rejected that any impropriety had taken
place in respect of the interpreter, finding no suggestion that the interpreter
was biased or acted from any improper motive or was in any way intimidatory
towards the applicant.
2.46
However, this case does raise the possibility that interpreter services
and their lack of regulation within the court system could become an
increasingly common ground for appeal or challenge in cases in the near future.
2.47
The Commission provisionally recommends that further research be
conducted into the functioning of translators in our court system in order to
ascertain if reforms need to be taken to improve access to justice.
(3)
Expert evidence of fact on an issue requiring expertise to
fully comprehend, observe and describe
2.48
This will overlap to a certain extent with the previous category,
particularly where scientific evidence such as DNA technology is at issue.
Expert evidence will be needed both to explain the principles of such science
or technology and to describe and explain in a factual manner the results or
outcomes of tests or experiments, and also often to carry out these tests and
experiments, submitted as evidence. However, the court is not under any
obligation to accept experiments and tests that have been conducted by experts
as evidence.[203]
2.49
In the English case R v Meads,[204] the evidence against the defendant was an admission which
police officers claimed to have recorded in contemporaneous handwritten notes
during various interviews. The defendant argued that the admissions were
fabrications and sought to introduce an experiment as expert evidence in the
form of a timed re-enactment of the alleged interviews.
2.50
The prosecution had argued that the new evidence was inadmissible on the
basis that it constituted opinion evidence founded on an insufficiently organised
body of knowledge. However, this was rejected by the English Court of Apperal,
which held that the evidence was expert evidence of fact, as no specialist
skill or knowledge was needed to relay it, and was no more opinion evidence
than that of a police officer who times a journey in order to test the veracity
of an alibi.
2.51
However, as can be seen in R v Harris & Ors[205] even where expert witnesses are interpreting the results
of factual evidence such as scientific tests, they still may disagree as to the
meaning of the results, which highlights that this type of evidence will often
still be in the form of opinion rather than fact.[206]
2.52
Furthermore, even if the experts are in agreement about the results of
the tests, they may still be in dispute about the significance of these results
for the case at hand. In this case, the English Court of Appeal accepted that:
“…even on the interpretation of objective evidence
there can be two views expressed by highly experienced and distinguished
medical experts.”[207]
(4)
Expert evidence of fact, on an issue that does not require
expertise to fully observe, but is a necessary preliminary to giving evidence
in the other four categories.
2.53
Hodgkinson and James note that this category does not strictly come
within the definition of expert evidence but argue that it is worthy of
discussion due to the fact that it often forms an inseparable part of the
evidence given by an expert.[208]
2.54
The type of evidence envisaged by this category was described by
Hobhouse J in The Torenia[209]
as being factual evidence that is used to support or contradict the opinion
evidence. Such evidence is common, as in giving their expert opinion experts
necessarily rely on their expertise and their experience and refer to that
experience in their evidence.
2.55
Examples of this is where an expert will refer to other cases and how
they apply to the case at hand, or where an expert gives evidence about past
experiments or experiments conducted for the purposes of the case at hand.[210]
This category will inevitably overlap with the following category of admissible
hearsay.
(5)
Admissible Hearsay of a Specialist Nature
2.56
The hearsay rule operates to exclude as evidence any out-of-court
statements that are offered for the purpose of proving the truth of their
contents.
2.57
In the context of expert evidence, the hearsay rule applies to provide
that in order to be admitted, the primary sources and facts upon which the
expert’s evidence is based must be proved by admissible evidence given by
either the expert himself or by other witnesses.[211]
(a)
Exceptions to
the Hearsay Rule
2.58
Nowadays, there are many recognised exceptions to the hearsay rule, both
statutory and at common law, which may operate to admit the evidence given by a
particular expert if the evidence in question is of a specialist nature and
comes within one of the recognised exceptions.
(i)
Ireland
2.59
In fact, in civil proceedings the number of exceptions that have been
identified is so wide-ranging that the rule has been practically abolished, and
its abolition was recommended by the Commission in its Report on The Rule
Against Hearsay in Civil Cases.[212]
However, it will still often apply in criminal proceedings and much uncertainty
remains as to the extent of its application in the criminal context.
2.60
Materials used by experts in giving their opinion may be permitted under
one of the existing common law or statutory exceptions to the rule against
hearsay for example if the material is a published work, record or document of
a public nature, is a statement contained in a business record, or is
considered part of the res gestae.[213]
(ii)
England
2.61
In England, the operation of the hearsay rule is now largely governed by
statute, with recent civil and criminal legislative reforms that have greatly
helped to clarify the admissibility of this evidence.[214]
2.62
In civil proceedings, the rule against hearsay was abolished by Section
1(1) of the Civil Evidence Act 1995.[215]
Hearsay in criminal proceedings is covered by Part 11 of the Criminal
Justice Act 2003. Section 114 of the 2003 Act put eight common law
exceptions to the hearsay rule on a statutory basis. In the context of expert
witnesses, section 118 allows evidence to be admitted if it falls under:
“Any rule of law under which in criminal proceedings an
expert witness may draw on the body of expertise relevant to his field.”
2.63
Section 127 of the 2003 Act further provides that preparatory statements
prepared for the purposes of criminal proceedings by an expert or a member of
the expert’s team can be adduced in evidence by the expert to form part of his
or her expert opinion.
2.64
No comparable legislation exists in this jurisdiction but, as will be
discussed below, the Irish courts have held on a number of occasions that the
materials used by an expert are admissible in evidence as a permitted exception
to the hearsay rule.
(b)
The Requirement
for Proof: The ‘Factual Basis’ Rule
2.65
As already mentioned, if the primary facts forming the basis of the
expert’s opinion are not proved in admissible evidence little weight will be
attached to the opinion.[216]
2.66
This ‘basis’ rule has long since been recognised. In Wright v Doe d
Tatham[217]
the point was made that:
“The cautious rules by which the rejection of evidence is
determined, affect as well the most weighty opinions, as the most worthless
gossip, unless vouched by the indispensable sanction of an oath; a certain and
few well known cases only excepted.”[218]
2.67
Similarly, in the Australian case Ramsay v Watson,[219] Dixon J stressed that:
“Hearsay evidence does not become admissible to prove facts
because the person who proposes to give it is a physician.” [220]
2.68
The proof requirement takes into account the reality that it is not the
expert that decides on the facts in issue, and it is ultimately the finder of
fact who decides whether to accept or reject the expert’s opinion. In order to
properly determine the value of the expert’s opinion, the court must
necessarily be knowledgeable about the facts on which this opinion is based.
(c)
Avoiding the
Proof Requirement – The Hypothetical Question
2.69
A way of avoiding this requirement to some extent could be the use of
the hypothetical question, where the expert stresses that his opinion is based
on a proviso that certain facts or events were true or will be proved, if not
his opinion should be discarded.[221]
2.70
If an expert is giving opinion evidence in the form of a hypothesis, he
or she is required to firmly explain that the conclusion reached by the expert
has no factual basis but assumes the existence of a number of factors which
have not been proven in evidence.
(d)
Exceptions to
the Proof Requirement
2.71
Greater flexibility however is given in relation to inferences or
opinions drawn from primary facts that have been proven in court. The practical
reality of specialisation that an expert acquires from study or experience is
that such expertise or knowledge base will usually be founded, partly at least,
on material of which the expert does not have firsthand experience.
2.72
For example, as early as the 19th century in this
jurisdiction, in McFadden v Murdock[222]
Pigot CB rejected the argument that an expert trader should not be entitled to
give an account of the losses incurred in the course of his own trading
experiences because such facts cannot be proved. Pigot CB held in the
alternative that such evidence, once similar to the facts which form the
subject matter of the controversy, should be admissible “in illustration” of
the opinion of the expert.[223]
2.73
Thus, an exception to the proof requirement grew out of necessity as
well as out of recognition of the greater ability of the expert than the court
to evaluate the reliability of background hearsay, as it was recognised that,
as when dealing with complex subject matters, juries proved less able to draw
the necessary inferences from the facts deposed.[224]
(i)
Expert’s Ability
to Rely on Materials from their Field of Expertise
2.74
Nowadays, in reaching a conclusion, the expert is permitted to rely on
prior studies, statistics and research, academic literature and works of
reference in their field of expertise. This has been termed ‘non-specific
hearsay.’[225]
(I)
England
2.75
In R v Abadom,[226]
Kerr L.J. referred to this practical reality and expressed the view that:
“it is no more than a statement of the obvious that, in
reaching their conclusion, [experts] must be entitled to draw on material
produced by others in the field in which their expertise lie…once the primary
facts on which their opinion is based have been proved by admissible evidence,
they are entitled to draw on the work of others as part of the process of
arriving at their conclusions.”[227]
(II)
Canada
2.76
In Wilband v The Queen[228]
Fauteux J. explained the reasoning behind this by pointing out that such
evidence does not affect the rule against hearsay as the material in question
is not being submitted to prove its veracity but rather to explain the thought
processes and knowledge bases which helped the expert to form his opinion:
“…the value of [an
expert’s] opinion may be affected to the extent to which it may rest on
second-hand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which
opinion is no evidence of the truth of the information but
evidence of the opinion formed on the
basis of that information.”[229]
(III)
Ireland
2.77
The issue was also considered in this jurisdiction in The People
(DPP) v Boyce.[230] One of the grounds of appeal was the contention that
expert evidence was admitted to include an unproven factor. The appellant
argued that since the expert witness had relied on statistical information in
scientific literature and could not give evidence of his own knowledge he
should not have been allowed to given expert evidence on the basis of such
statistics or databases. The Court summarised the principles governing this
area:
“Any primary fact relied upon by the expert must be proved by
admissible evidence but there are other secondary matters such as established
scientific norms, practices, standards and reference points within the field of
expertise….which he or she may rely upon or the like.”
The Court continued;
“In a long established exception to the hearsay rule, an
expert can ground or fortify his or her opinion by referring to works of
authority, learned articles, recognised reference norms and other similar
material as comprising part of the general body of knowledge falling within the
field of expertise of the expert in question.”
(ii)
Expert’s Ability
to Rely on General Experiences from Field of Expertise
2.78
It has also been held that, in coming to an expert opinion, an expert is
entitled to assess the facts against previous experiences that he or she may
have had dealing with similar issues, as long as the comparable evidence does
not amount to hearsay evidence of facts.
2.79
Megarry J. in English Exporters Pty. Ltd. v Eldonwall Ltd[231]
attempted to explain the distinction between the requirement that the expert
have personal knowledge of the facts upon which his opinion is based, and the
fact that he is entitled to rely on these facts in forming his opinion and in
this way is not subject to the rule against hearsay in the same way as a
witness of fact;
“Basically, the expert’s factual evidence on matters of fact
is in the same position as the factual evidence of any other witness. Further,
factual evidence that he cannot give himself is sometimes adduced in some other
way, as by the testimony of some other witness who was himself concerned in the
transaction in question, or by proving some document which carried the
transaction through, or recorded it; and to the transaction thus established,
like the transactions which the expert himself has proved, the expert may apply
his experience and opinions, as tending to support or qualify his views. That
being so, it seems to me quite another matter when it is asserted that a valuer
may give factual evidence of transactions of which he has no direct knowledge,
whether per se or whether in the guise of giving reasons for his opinion as to
value. It is one thing to say “From my general experience of recent
transactions comparable with this one, I think the proper rent should be
£x": it is another to say "Because I have been told by someone else
that the premises next door have an area of x square feet and were recently let
on such-and-such terms for £y a year, I say the rent of these premises should
be £z a year….It therefore seems to me that details of comparable transactions
upon which a valuer intends to rely in his evidence must, if they are to be put
before the court, be confined to those details which have been, or will be,
proved by admissible evidence, given either by the valuer himself or in some
other way. I know of no special rule giving expert valuation witnesses the
right to give hearsay evidence of facts…I can see no compelling reasons of
policy why they should be able to do so.”[232]
(iii)
Expert’s Ability
to Rely on Second Hand Information in Order to Form an Expert Opinion
2.80
Where the expert does not have firsthand knowledge of the facts upon
which his opinion is based, for example a psychiatrist or psychologist who
bases his evaluation of a patient on statements or events narrated to him by
the patient, it may be nevertheless permissible for him to state a hypothesis
on these assumed facts.[233]
2.81
In cases involving delay in sexual abuse cases, psychiatrists are often
recruited to testify about the reasons for the delay. In such cases, it has
been held that the psychiatrists are entitled to believe the complainant at
face value and use the information in their opinion.
2.82
Such statements are admitted as evidence for the reason that these
psychiatrists and psychologists have qualified as experts in diagnosing the
behavioural symptoms of individuals, and have formed an opinion on the basis of
these statements, which the trial judge deems to be relevant to the case.
2.83
However, it is important to note that these statements are not
admissible as proof of their truth but rather as indicating the basis upon
which the medical opinion was formed in accordance with recognised professional
procedures.[234]
2.84
Thus an expert opinion based on second-hand evidence is admissible, if
relevant. Furthermore, it is apparent that a distinction can be drawn between
the requirement for first hand evidence, which if not present, will reduce the
weight to be given to the opinion of the expert, and the rule against hearsay.
The hearsay rule does not operate to exclude an expert opinion based on
second-hand evidence because this evidence is not admitted to prove the fact of
what the expert has been told.[235]
2.85
In the Canadian case R v Abbey[236] the accused’s psychiatrist and not the accused himself,
testified, in the course of his opinion, to events related to him during
several interviews. There was no admissible evidence brought before the court
in respect of any of these events. On appeal Dickson J held that a retrial
should be ordered as the testimony of the expert;
“…while admissible in the context of the opinion, was not in
any way evidence of the factual basis of these events and experiences. The
trial judge in his decision fell into the error of accepting as evidence of
these facts, testimony which if taken to be evidence of their existence would
violate the hear-say rule.”[237]
(e)
Hearsay and
Expert Evidence: Irish Examples
2.86
A series of nullity cases in this jurisdiction considered the above
principles in detail. In F v L (Orse F)[238] Barron J.
held that hearsay evidence by the petitioner and two other witnesses would be
disregarded and, insofar as the consultant psychiatrist related matters told to
him by others in the absence of the respondent, then the Court could not accept
them as true but only as statements made to him in the course of his profession
in relation to a matter authorised by the Respondent.
2.87
Similarly, in RT v VP (Orse VT),[239]
the respondent objected to expert opinion evidence given by an expert for the
petitioner, a psychiatrist, concerning the mental state of the respondent, as
hearsay, as the witness had never met or examined the respondent. The expert
had based this opinion on statements from the petitioner and on a report
written by the court appointed expert, also a psychiatrist, who had examined
the respondent.
2.88
Lardner J upheld this objection stating that an expert witness is
entitled to give an opinion on facts which are admitted or proven by himself or
other witnesses, or matters of common knowledge, or upon a hypothesis based
thereon, but evidence based on an individual he had never met or examined was
inadmissible as hearsay.
2.89
McGrath submits that it seems incorrect to classify such evidence as
hearsay, considering that in this case both the petitioner and the
court-appointed expert were called to give evidence in court. He argues that it
would have been more appropriate to object to the evidence on the grounds of
its lack of probative value, and so this is a matter which should go to the
weight rather than admissibility of the evidence. [240]
2.90
However a more lenient approach was taken by O’Higgins J in two later
nullity cases, JWH (Orse W) v GW[241] and DK v TH (Orse TK).[242] In both cases, which were decided on the same day, evidence
was admitted from psychiatrists concerning the mental state of the respondents
even though the respondents had not been examined by the experts. O’Higgins J
warned that such evidence would be of limited value due to the lack of input
from the respondent but felt that this should be taken into account in
assessing the weight and not the admissibility of the evidence.
2.91
An even more relaxed view to the admissibility of expert evidence was
taken in State (D and D) v Groarke & Ors.[243] Here the petitioners contested the validity of a
‘fit person’ order, [244] which provided for the removal of a
child from its parents, on grounds that fair procedures had not been followed
in the making of the order. In particular, the petitioners objected to the
evidence adduced by the respondents; a video of a doctor interviewing the child
with the aid of anatomical dolls, which had formed to a large extent the
opinion of this doctor that the child had been abused.
2.92
The Supreme Court allowed this evidence to be admitted, finding that the
court should have before it the basic evidence (in this case the video
recording and an explanation from the expert witness doctor regarding the
meaning of the use by the child of the dolls) that was used to form the basis
of the doctor’s opinion that the order should be made, in order to determine if
this conclusion was correct.[245]
2.93
In Southern Health Board v C[246] similar facts were involved. Here, a father objected to
videotape evidence of an interview between his child and a social worker, which
formed the basis of an allegation of sexual abuse, being admitted in court in
proceedings to impose a fit person order on grounds that such evidence amounted
to hearsay. The Supreme Court held that the evidence was rightly admitted.
2.94
O’Flaherty J took the view that the videotape evidence was not hearsay
evidence as it did not constitute independent evidence of the child but a
material part of the expert testimony of the social worker.
“[W]e point out that the key evidence as far as this
part of the case is concerned will be that offered by the social worker, Mr.
Jim O’Leary. In a sense, the tapes are simply material that will back up his
testimony. Essentially however, the important evidence will be his expert
testimony.”[247]
2.95
The Court also found that it was a matter for the District Court to
accept or reject this expert testimony, and that it remained open to the
respondent to employ their own expert witness to cross examine the social
worker in order to assist him in meeting the allegations.
2.96
McGrath argues that these decisions push back traditional boundaries
regarding the type of evidence that is admissible in support of expert
testimony and highlight the potential for the rules regarding expert evidence
to be used as a backdoor means of admitting hearsay evidence.[248]
2.97
However it is important to note that in both cases much emphasis
appeared to be placed on the welfare and best interests of the child. The cases
did not involve a determination of the veracity of the allegations or of a
prosecution of the alleged perpetrators. It is questionable if such an approach
would have been taken if criminal proceedings were being taken, or the truth of
the allegations was to be determined.
2.98
A more recent case dealing with potential hearsay in the evidence of the
expert witness is MCG(P) v F(A).[249]
Here, the parties sought court direction about the scope and extent of the
powers of the expert witness in the case, a medical inspector who was appointed
by the court under Order 70 Rule 32, Rules of the Superior Court for the
purposes of the petition of a degree of nullity.
2.99
More specifically, the parties wished to determine if the medical
inspector, an experienced consultant psychiatrist, was entitled to interview
third party informants, in respect of his diagnosis of the state of mind of the
parties around the time of the ceremony of marriage. The medical inspector
pointed out that his expert assessment would be less complete and satisfactory
from his point of view as a medical expert unless he interviews third-party
informants as would often be usual in making a clinical diagnosis where personality
disorder is suggested.
2.100
Budd J accepted that it would be desirable to have as much information
as possible available to the medical inspector, however, he pointed out that
the wording of the provisions of the statute and of the rules governing the
appointment of a medical inspector envisages an inspection of the parties
themselves and not an examination of third-party informants and felt that it:
“…would stretch the elasticity beyond breaking point to
extend matters to include interviewing third-party informants and this would be
in breach not only of the letter but also of the spirit of the wording of the
statute and of the rules.”[250]
2.101
Budd J also stressed the point that the ultimate responsibility of
deciding whether or not to grant a decree of nullity was not that of the
medical inspector, but of the court. He held that in order to ensure that the
court remains in control of the inquiry, and for the other reasons cited, third
party informants should not be interviewed.
2.102
He also seemed largely motivated by the danger that the evidence given
by third party informants may be later exposed to be false. As he reasoned:
“The report based on the psychiatrist’s expertise and
interviews only with the parties avoids the problem of the Court having to work
out how much of the inspector’s report is based on what the inspector heard
from a witness whose evidence the Court has not heard or whose evidence the
Court has rejected as false…There are very real problems in reality about a
Court having to extrapolate sound parts of an Inspector’s report which have not
been tainted by hearsay or evidence which has been rejected. A further
consideration is that the Court is seen to be in control of the proceedings and
that justice is seen to be done and the perils from hearsay and loss of
confidence on the part of the parties in the conduct of the proceedings from an
expanded role of the medical inspector…If the inspector has based part of his
assessment on contaminated evidence then this is going to cause problems in the
future when his report is considered by the Court and there may be real
difficulties in unscrambling the part of the omelette which has been
contaminated by hearsay or false and rejected evidence.” [251]
2.103
This case shows a return to the strict view that if objection to
evidence from an expert witness is raised on grounds of hearsay, such evidence
is likely to be ruled inadmissible, and highlights that the court remains, as
per Budd J:
“….chary of widening the scope of the inquiry and of
intermeddling by persons who may be partisan and who are not actually called to
give evidence by one of the parties before the court.”[252]
2.104
McGuinness J considered the role of evidence of delay in cases of child
sexual abuse in VW v DPP:[253]
“All such evidence is open to challenge in cross-examination.
It must however be borne in mind that it is not the task of the expert witness
to assess the credibility of the complainant or the guilt or innocence of the
applicant. The truth or otherwise of the complaints is to be tested at the
trial.”
D
The Scope of Expert Evidence
2.105
There are a number of rules governing the exact parameters of the
evidence that may be given by an expert. The general rule relating to opinion
evidence is an exclusionary one – a witness is not entitled to give an opinion
or draw inferences from facts observed; they can only testify as to the facts
observed by them personally.
2.106
Expert evidence operates as a limited exception to this strict
exclusionary rule. The court’s reluctance to admit opinion evidence stems from
its inherent subjective nature and its ability to lead to inconsistencies and
injustices. As Lord Pearce stated:
“Human evidence shares the frailties of those who give it. It
is subject to many cross-currents such as partiality, prejudice, self-interest
and, above all, imagination and inaccuracy.”[254]
2.107
As a result, the operation of the exception in favour of expert opinion
evidence and the scope of such evidence that will be considered admissible are
circumscribed by a number of ancillary rules which are strictly applied.
(1)
Within the Field of Expertise of the Expert
2.108
It is a well accepted common law requirement that the expert must
confine himself to expressing an opinion on issues that are within the ambit of
his area of expertise,[255] and an
expert witness cannot express an opinion on legal or technical issues raised in
the case, or the merits of the plaintiff’s and defendant’s arguments.
2.109
As distinguished above, in some cases an expert will only be required to
outline the scientific or technical facts as understood by him. In other cases
the expert will be asked to give an opinion on a set of circumstances based on
his expertise. The problem arises where the distinction between fact and
opinion breaks down and the expert ends up expressing a more detailed opinion
than is permissible.
(a)
Defining the
Parameters of Expertise
2.110
Experts are entitled to give non-opinion expert evidence, such as
describing the concepts involved in a patents case or explaining the principles
of DNA technology, however, the courts are strict to ensure that in doing so
the experts do not go further and comment for example, as to whether the
defendant’s invention infringed the plaintiff’s patent.
2.111
This is because such matters are for the judge or jury to decide as the
expert witness is not, by reason of his expertise, any better placed to give an
opinion on such matters than the judge or jury as such matters do not amount to
specialised knowledge.
2.112
There is a danger that if an expert was entitled to give an opinion
based on the expert facts outlined, excessive weight will be given to this by
members of the jury and also that it may effectively amount to the expert
trying the issues of the case.
(b)
England
2.113
One case where the English courts had to decide on the parameters of the
expertise of the expert was R v Barnes.[256]
Here, the Court of Appeal refused the appellant the right to introduce
fresh evidence from an arboriculturalist, or wood grain expert, to the effect
that the wood grain pattern on a fingerprint allegedly taken from a wooden door
at the scene of a crime and matching that of the defendant, did not match the
wood grain of the door itself.
2.114
The Court held that while the witness was undoubtedly an expert on wood
grain, he had no expertise in the interpretation of lifts, or in the
identification of wood-grain on lifts, which were the questions in issue,
therefore his evidence was not considered of sufficient relevance to form the
basis of an appeal.
(c)
Ireland
2.115
In an Irish case, The People (DPP) v Yusuf Ali Abdi,[257] the defendant appealed his conviction for the murder of
his baby son on the grounds that the Court had erred in law by permitting an
expert witness psychologist to give opinion evidence about the applicant’s
motive in killing his son. He argued that such an opinion did not come within
the ambit of a psychologist’s expertise.
2.116
He based this argument on the decision in The People (DPP) v Egan[258]
and argued that the purpose of a psychiatrist is solely to offer an expert
opinion as to whether the accused was insane or not at the time of the killing,
and questions of intent and motive are matters for the jury, as they are
matters of ordinary human experience.
2.117
The evidence in dispute was that of a consultative psychiatrist, who had
prepared a report on the applicant which was used in evidence during the trial.
In this report the psychiatrist had stated a belief that the defendant’s
alleged actions were motivated by “his inability to accept that he would be
unable to rear his child in his own religious faith coupled by the threat of
losing custody of the child.”[259]
2.118
The Court of Criminal Appeal held, however, that the material was
rightly admitted. The Court noted that, in two previous cases relied on,
insanity had been neither established or alleged, as both were cases where it
was sought to establish that the accused could avail of the defence of
provocation in that he was suddenly and totally deprived of his self control,
which was plainly a matter for the jury to consider and beyond the proper reach
of expert testimony. The case at hand, the Court held, differed greatly. In the
present case insanity was specifically alleged and pleaded, and the defence had
called expert evidence to establish it. The prosecution was plainly entitled
therefore to counter this with expert testimony of its own.
2.119
There are several other examples from this and other jurisdictions where
expert testimony has been objected to on the grounds that the expert was giving
evidence on an issue that did not come within the ambit of his area of
expertise. This shows a readiness on behalf of the courts to ensure that the
confines of expert evidence are firmly observed.
2.120
The majority of the objectionable evidence in these cases is however
excluded as a result of the ‘common knowledge’ or ‘ultimate issue’ rules, and
these two rules operating together have the effect of strictly excluding all
evidence that is likely to result in the role of the finder of fact from being
usurped.
(2)
The Common Knowledge Rule
2.121
Even if the matter in question falls within one of the categories of
expert evidence identified above and thus comes within the range of matters for
which expert testimony is permitted, if the jury is capable of making
inferences from the factual testimony presented, that is, where the issue in
question is within the scope of knowledge and competency of the tribunal of
fact, any extra expert evidence will be superfluous and so is inadmissible. As
Lawton LJ stated in R v Turner[260]
“An expert's opinion is admissible to furnish the Court
with scientific information which is likely to be outside the experience and
knowledge of a judge or jury. If on the proven facts a judge or jury can form
their own conclusions without help, then the opinion of the expert is
unnecessary.”[261]
2.122
Evidence relating to matters of common knowledge, matters which can be
dealt with by the trier of fact by applying common sense and life experience is
therefore inadmissible.
2.123
The primary rationale for the exclusionary rule is to prevent the
function of the judge or jury from being usurped by allowing an expert to
decide on matters which are within the province of the finder of fact. Another
underlying concern of the rule is to prevent excessive time wasting in trials
by limiting the type of expert evidence that comes before the court.
(a)
Operation of the
Rule in Common Law Jurisdictions
2.124
The rule excluding matters of common knowledge from the scope of expert
testimony has been reaffirmed on several occasions in this jurisdiction and in
England for centuries. However, recent cases indicate an easing of the rule,
and there are many examples of inconsistent case law on this issue.
2.125
Much judicial commentary exists which strongly confirms that expert
witnesses will not be permitted to give evidence on matters which are
considered within the scope of knowledge of the finder of fact.
2.126
In the Australian case Transport Publishing Co Pty Ltd v Literature
Board of Review[262] Dixon C.J. stated that “ordinary human nature, that of
people at large, is not the subject of proof by evidence, whether supposedly
expert or not.”[263]
(i)
England
2.127
In R v Turner,[264] the
accused had bludgeoned his girlfriend to death after she confessed her
infidelity to him. The court refused evidence the of a psychiatrist that such an
event was likely to have caused an explosion of rage in him, as “jurors do not
need psychiatrists to tell them how ordinary folk who are not suffering from
any mental illnesses are likely to react to the stresses and strains of life.”[265]
2.128
The reasoning behind this view is a recognition of the fact that when an
expert makes a determination on an issue on which a judge or jury would be well
capable of forming their own opinions and drawing their own conclusions on, the
judge or jury is prone to attach greater significance than is perhaps warranted
to the opinion of the expert. In R v Turner[266]
Lawton LJ made reference to this:
“If, on the proven facts, a judge or jury can form their own
conclusions without help, then the opinion of an expert is unnecessary. In such
a case, if it is dressed up in scientific jargon it may make the judgment more
difficult. The fact that an expert witness has impressive scientific qualifications
does not by that fact alone make his opinion any more helpful than that of the
jurors themselves; but there is a danger that they may think it does.”
2.129
Sopinka J’s comments in the Canadian case R v Mohan[267] are also in this vein:
“…dressed up in scientific language which the
jury does not easily understand and submitted through a witness of impressive
antecedents, this evidence is apt to be accepted by the jury as being virtually
infallible and as having more weight than it deserves.”
(ii)
Ireland
2.130
The ‘common knowledge’ rule has also been enforced by the Irish courts
on several occasions. Turner was approved in Ireland in The People
(DPP) v Kehoe,[268]
a case with similar facts, where the Court of Criminal Appeal held a
psychiatrist’s evidence about the accused’s state of mind should not have been
admitted as it merely sought to articulate more fully the defence of
provocation of the accused, which the accused was in a position to give to the
jury himself.
2.131
Similarly, in McMullen v Farrell[269] although Barron J. admitted expert evidence about the
everyday professional practice of solicitors, he refused to admit evidence
relating to the manner in which litigation is conducted as he felt the court
itself has factual knowledge of this practice.[270]
(b)
Difficulties
Determining Matters of Common Knowledge – A Move Away from the Common Knowledge
Rule?
2.132
The distinction between facts that require expertise and facts that are
within the range of knowledge of the finder of fact is not always clear and
difficulties can arise in certain areas. This is apparent from the case law
where it can be seen that the rule against matters of common knowledge has
occasionally received disparate and inconsistent application.
2.133
Deciding on admissibility and policing the boundaries of what is within
the knowledge of the finder of fact is made more difficult by the fact that
these boundaries can change with developments in science and technology.
2.134
One area where considerable difficulties have arisen is whether or not
expert testimony should be admitted on the credibility of the accused.[271]
This is particularly so in criminal trials, probably due to the presence of the
jury and the view that they might afford greater weight to expert evidence than
is appropriate or than would a judge.
2.135
However, there are some limited examples of cases where expert evidence
on the credibility of the accused has been admitted; where it is considered
that the issue of credibility is outside the experience and knowledge of the
jury; as this is a more reliable indicator than attempting to define whether or
not the evidence relates to a recognised mental illness or not.[272]
(i)
Ireland
2.136
The emergence of new and specialised areas of expertise has led to
difficulties in determining whether an issue is something which a lay judge and
jury are capable of assessing, or whether expert evidence on the issue is necessary.
2.137
In The People (DPP) v Pringle[273] the accused argued that expert forensic evidence, which
amounted to a comparison of fibres found on cars used in a bank raid and those
found on the accused’s pullover, should not have been admitted as the judges
were competent to make such a comparison themselves.
2.138
The court however rejected this, placing considerable emphasis on the
expertise of the witness in forensic science, and expressed the view that
requiring judges to personally conduct “laboratory experiments….for visual
comparisons” as being “novel and wholly inappropriate.”[274]
2.139
Psychiatric and psychological expert evidence has generated considerable
difficulties. In Kehoe, O’Flaherty J was of the opinion that medical
expert evidence such as that of psychiatrists should properly be confined to
matters such as insanity and other forms of mental illness. In borderline cases
the court may decide to allow expert evidence where it is unsure if it can make
a sound or fully informed decision without it.[275]
2.140
However, with the new defence of diminished responsibility,[276]
mental health issues will no longer be considered so clear cut in determining
liability. The evidence of medical experts on the mental state of the accused
will therefore no doubt attract a renewed significance and will in the future,
it is submitted, be more readily admitted in this regard.
2.141
The Commission notes that the language used in the Criminal Law
(Insanity) Act 2006 refers to “mental disorder” [277] which differs from the English
“abnormality of the mind.”[278] Although
it remains to be seen how the Irish courts will interpret this provision, it
could be considered that the Irish provisions have a much narrower ambit than
the corresponding English provision. It can thus be argued that “mental
disorder” should be equated with a recognised mental condition, about which
expert testimony will undoubtedly be held to be admissible.
2.142
In its Consultation Paper on Child Sexual Abuse, the Commission considered
whether or not expert evidence should be considered admissible in helping to
determine the credibility of alleged victims of child sexual abuse.[279]
The Commission recognised that matters of human nature and behaviour within the
limits of normality are not susceptible to expert evidence.[280]
2.143
The Commission went on to refer to a number of English cases where
expert evidence on matters such as credibility of the accused,[281]
and the credibility of the accused’s allegation of assault,[282]
but recognised that the “child sexual abuse syndrome” as [at the time of the
report] lacks clear scientific empirical validation.”[283]
2.144
The Commission outlined both the advantages, such as giving the jury a
more informed perspective, and explaining the reasons for a child’s unusual
behaviour, and disadvantages, such as the possibility of usurpation of the role
of the finder of fact and delay, of admitting evidence on the likely reactions
of child victims of sexual abuse.[284]
2.145
In conclusion, the Commission provisionally recommended that expert
evidence be admissible as to competence and as to children's typical
behavioural and emotional reactions to sexual abuse, a recommendation that was
confirmed in the later Report.[285]
2.146
The Commission’s recommendations on this issue reflect the general trend
of the courts to adapt to new and emerging forms of expertise, and a
willingness to take a flexible approach in relation to what can be considered
an issue that is not within the common knowledge of the finder of fact and on
which expert evidence is therefore considered beneficial and admissible.
(ii)
England
2.147
The courts have readily allowed expert evidence to prove recognised
mental illness, however recent cases in England show that the categories of
what will be considered ‘mental illness’ have expanded over the years and
evidence is now being allowed in a far wider range of cases than anticipated by
Turner.
2.148
For example in R v Toner[286]
expert evidence showing that a mild hypoglycaemic attack could have negatived
intent was allowed. Similarly in R v Ward[287]
psychological evidence was allowed to help prove that the accused was
suffering, while not from a mental illness, from a personality disorder so
serious as to be described as a mental disorder.
2.149
Expert evidence has also been admitted in England in cases involving
inter alia insanity,[288] battered
wives syndrome,[289] and
automatism.[290] It has
also been accepted that expert psychiatric evidence is legally necessary where
examining the issue of diminished responsibility.[291]
2.150
In R v O'Brien[292]
a similarly broader approach to the admissibility of expert psychiatric
evidence was taken. Roche LJ stated:
“At one time the law was thought to be that expert evidence
of the kind that we have heard could only be admitted if that evidence showed a
recognised mental illness, this being the interpretation placed upon R. v.
Turner. It has now been accepted that expert evidence is admissible if it
demonstrates some form of abnormality relevant to the reliability of a
defendant’s confession or evidence.” [293]
(iii)
Australia
2.151
It is also interesting to note that in the Australian case Murphy v
The Queen[294],
the High Court of Australia reversed the decision of the trial judge that the
evidence of a consultant psychiatrist, which sought to show that the defendant
was of limited intellectual capacity, was inadmissible due to the fact that it
related to matters of human nature and behaviour within the limits of normality
and thus did not qualify as expert evidence.
2.152
In the course of the judgment, the High Court of Australia expressed
doubt concerning the English Turner decision:
“Lawton L.J. added some remarks which may not be so
unquestionable: “Jurors do not need psychiatrists to tell them how ordinary
folk who are not suffering from any mental illness are likely to react to the
stresses and strains of life.” There are difficulties with such a
statement. To begin with, it assumes that “ordinary” or “normal” has some
clearly understood meaning and, as a corollary, that the distinction between
normal and abnormal is well recognized. Further, it assumes that the
commonsense of jurors is an adequate guide to the conduct of people who are
“normal” even though they may suffer from some relevant disability. And
it assumes that the expertise of psychiatrists (or, in the present case,
psychologists) extends only to those who are “abnormal.” None of these
assumptions will stand close scrutiny.”[295]
2.153
The High Court of Australia then reformulated the test to one that
considers whether the evidence would provide assistance to the decision maker.
(c)
Abolition of the
Common Knowledge Rule
2.154
As evident from the inconsistent case law, and more obviously from the
Australian decision Murphy v The Queen,[296] there appears to have been a shift away from a strict
application of the common knowledge rule. Indeed, some jurisdictions have
decided to abolish the rule outright.
(i)
Australia
2.155
The Australian Law Reform Commission’s Interim Paper on Evidence
criticised the common law rule for a number of reasons. The Commission argued
that what is ‘common knowledge’ must be clearly definable in order for the
exclusionary rule to function properly, and that finding a clear definition is
however, not possible. [297]
2.156
The Commission also argued that the rule excluding matters of
common knowledge lacked theoretical justification because there are many
situations in which the trier of fact might have some acquaintance with a
subject as would the public at large, but might still find assistance from an
expert of some value. [298] They gave the example of evidence that
may be given by mental health professions on the ‘ordinary man,’ which as a
consequence of the common knowledge rule, will be excluded.
“As a result the common knowledge concept has denied the
courts…..the work done by psychologists in conducting research into perception,
memory, narration and in demonstrating the fallibilities of eye witness
identification and the giving of confessions. A refusal by the courts to
utilise the fruits of such research means that they base their decisions on
knowledge that is incomplete and out of date.” [299]
2.157
The ALRC recommended that, rather than ask whether the area in relation
to which expert opinion evidence is tendered is one of common knowledge, the
question for the court should be whether the trier of fact could usefully
receive assistance from the expert opinion evidence.” [300]
2.158
Following these recommendations, Section 80(b) of the Evidence Act
1995 (Cth) abolished the common knowledge rule excluding expertise being
admitted on areas of common knowledge.[301]
2.159
More recently, the Australian, New South Wales and Victorian Law Reform
Commissions published a Report on Uniform Evidence Law, [302] which sought to conduct an inquiry into
the operation of the laws of evidence in the various jurisdictions. This report
addressed whether there was a need to amend Section 80 (b) of the Evidence
Act 1995 which removed the exclusionary rule against matters of common
knowledge.
2.160
In the ALRC’s Issues Paper for this report, it was acknowledged that as
a result of the abolition of the common knowledge rule, dealing with evidence
about such matters as motor vehicle accident reconstruction, which may have
been excluded by the application of the common law rules, involves unnecessary
time and expense.
[303]
2.161
It was further acknowledged in the issues paper that the abolition of
the exclusionary rule greatly facilitated the routine admission of expert
opinion evidence in relation to identification, which could have the effect of
lengthening cases where identification is a main issue. [304]
2.162
In the Final Report of the combined Commissions, it was noted that
several submissions had recommended the reintroduction of the common knowledge
rule. It was argued by the Law Institute of Victoria that it created a “high
risk that juries might rely on, or afford particular probative value to, expert
evidence on matters of common knowledge”[305]
2.163
Other submissions received by the Commissions argued that the common
knowledge rule prevents difficulties arising where a jury gives undue weight to
the opinion an expert who strays outside his or her area of expertise.[306]
2.164
However, the combined Commissions concluded that there was no need to
reintroduce the common knowledge rule. They argued that the mere existence of
the common knowledge rule is not itself preventive of the problem of experts
straying outside their field of expertise. They further argued that there are
sufficient safeguards contained within the Evidence Act 1995 to
counteract the difficulties created by the abolition of the rule.
2.165
For example Section 55(1) requires any evidence tendered to have the
ability to “rationally affect (directly or indirectly) the assessment of the
probability of the existence of a fact in issue in the proceeding.” Therefore
an opinion based excessively on matters of common knowledge may be excluded as
a result of this section.
2.166
Similarly, section 7, which outlines the general admissibility criteria
for expert evidence, requires such evidence to be “wholly or substantially”
based on expert knowledge, which would appear to exclude evidence predominantly
based on matters of common knowledge.
2.167
Furthermore, section 135 gives the court a general discretion to exclude
evidence likely to; be unfairly prejudicial to a party; be misleading or
confusing; or cause undue waste of time.
2.168
These provisions, in the Commissions view, along with the benefits of
the abolition of the common knowledge rule, are sufficient reasons not to
reintroduce the rule.[307]
(ii)
New Zealand
2.169
In its discussion paper on Expert Evidence and Opinion Evidence[308]
the New Zealand Law Reform Commission considered the common knowledge rule and
the desirability of its retention.
2.170
The Commission explained that the primary justification for preventing
an expert from giving evidence on a matter within the knowledge of the finder
of fact is that “to allow expert evidence in such a case would be to defeat the
purpose for which juries are used.”[309]
2.171
However, the Commission also expressed the view that the rule can
“operate to limit unduly the reception of evidence which would add to the
understanding and knowledge of the judge or jury” because of the fact that it
“excludes evidence by its subject matter without regard to its reliability and
value in the trial.”[310]
2.172
As a result of these findings, the Commission recommended the abolition of
the common knowledge rule and outlined two main alternatives for reform based
on recommendations of other Law Reform Commissions. However, the Commission
also acknowledged that both options would have the same substantive effect and
would exclude the same evidence on the same grounds.
2.173
First, the Australian approach, which allows expert opinion wholly or
substantially based on specialised knowledge, but subject to a general
exclusionary power for quality control. Second, the Federal Rules of Evidence
approach, which allows such expert opinion evidence as would “assist the trier
of fact to understand the evidence or to determine a fact in issue,” subject to
a general exclusionary power.[311]
2.174
In its final Report on Evidence – Reform of the Law, the New Zealand Law
Commission considered these options for reform and concluded that the ‘common
knowledge’ and ‘ultimate issue’ rules should be abolished, and that they should
be replaced by a ‘substantial helpfulness’ test. This would allow opinion
evidence if the opinion is likely to “substantially help” the court or jury to
understand other evidence or ascertain any material fact.[312]
2.175
The Evidence Act 2006[313]
has taken on board these recommendations. Section 25 (1) now provides that:
“An opinion by an expert that is part of expert evidence
offered in a proceeding is admissible if the fact-finder is likely to obtain
substantial help from the opinion in understanding other evidence in the
proceeding or in ascertaining any fact that is of consequence to the
determination of the proceeding.”
2.176
Section 25 (2) (b) further provides that an opinion by an expert is not
inadmissible simply because it is about a matter of common knowledge.
(d)
Conclusion – Is
Reform of the Common Knowledge Rule Necessary?
2.177
As already discussed, the common law rule against permitting expert
evidence on matters of common knowledge remains firmly applied in this
jurisdiction. However, recent case law also reveals an increasing willingness
on the part of the courts to expand the interpretation of what consists of
matters outside the scope of knowledge of the finder of fact and the boundaries
of expertise continues to expand.
(i)
Abolition of
Common Knowledge Rule
2.178
It is open to the Commission to recommend following the approach taken
in jurisdictions such as Australia and New Zealand, namely the adoption of a
rule whereby expert evidence will not be excluded solely on the grounds that it
is based on a matter of common knowledge.
2.179
The Commission could recommend a new test for admissibility, modelled on
the New Zealand provisions, which takes a functional approach and requires
consideration about whether the trier of fact could usefully receive assistance
from the expert opinion evidence.
2.180
This general test could be balanced by provisions such as those
contained in Australian legislation which give the court a general discretion
to exclude evidence likely to; be unfairly prejudicial to a party; be
misleading or confusing; or cause undue waste of time.
2.181
The possible advantages of such a reform have been detailed above. It
can be argued that there are many issues which can be considered within the
common knowledge of the court but on which expert evidence would still be of
extreme benefit to the finder of fact.
2.182
It can be also argued that the case law demonstrates that the rule
continues to be inconsistently applied, and the courts have continuously
circumvented it, to the extent that it has become extinct in all but name. Its
express abolition would therefore not have significant practical ramifications.
2.183
Such a reform would therefore significantly widen the scope of
admissible expert evidence. However, it could be considered that this is a trend
that is occurring in the case law regardless as the courts appear to be giving
an increasingly broad interpretation to what is outside of the scope of
knowledge of the finder of fact.
(ii)
Retention of
Common Knowledge Rule
2.184
A strong argument can also be made for the retention of the common
knowledge rule. It is acknowledged that the rule helps to clarify for both the
court and any potential experts for the parties to the case what the precise
scope of expert evidence that will be permitted encompasses.
2.185
It further helps to consolidate in the expert’s mind that his or her
role is to give expert evidence and not to act as an additional finder of fact
giving his or her view on the issues in the case as this amounts to a
usurpation of the role of the finder of fact.
2.186
The rule also requires the expert to prove to a high standard that the
evidence they are giving involves ‘expertise,’ and also requires the expert to
ensure that his or her evidence does not stray outside the area of
expertise. Therefore the rule promotes a high standard of expert testimony.
2.187
It has already been explained that the abolition of the rule can lead to
problems such as undue lengthening of cases as it has the potential to greatly
widen the matters for which a party will seek to adduce expert evidence.
2.188
There is also the added danger with the abolition of the rule that where
an expert opinion is given on an issue, on which the court would be perfectly
entitled to come to their own opinion, undue weight or deference may be given
to the opinion of the expert as they may be erroneously considered to be better
placed to give an opinion.
2.189
Furthermore, as can be seen in the case law, the rule in practice has
not caused any major difficulties as the courts have been willing to circumvent
it by stretching the boundaries of what will be considered, on the one hand a
matter of common knowledge, and on the other hand, outside the scope of knowledge
of the finder of fact.
2.190
The Commission now turns to set out its provisional recommendations on
this area. In the view of the Commission, the role serves a valuable purpose in
clearly defining the type of expert evidence that will be given, and bearing in
mind the fact that expert opinion evidence is in itself a strict exception to
the rule against opinion evidence, it should remain strictly applied.
2.191
The Commission further believes that any potential difficulties that may
occur with the operation of the rule, such as its ability to exclude evidence
that may have strong probative value, will be resolved by the court’s ability
to give a flexible interpretation to what consists of matters of common
knowledge and the willingness of the court to recognised new areas of
expertise.
2.192
The Commission provisionally recommends that the common knowledge rule
should not be abolished and that matters of common knowledge should remain
outside of the scope of matters on which expert testimony can be given.
(3)
The Ultimate Issue Rule
2.193
Traditionally, expert opinion evidence about the ultimate issues in the
case was not permitted, as this would effectively erode the jury process and be
a ‘trial by expert.’[314]
2.194
The underlying rationale behind the exclusionary rule is therefore the
desire to prevent the role of the judge or jury from being usurped. Another
concern is to prevent the finder of fact from being unduly influenced by an
expert opinion, which may not be reliable, on an issue which is crucial to the
ultimate decision in the case.
2.195
However, recent cases reveal that this rule is now gradually being
perceived as being unduly restrictive. Furthermore, the courts have always had
difficulties in defining what constitutes the ultimate issue. This has led to
different interpretations being given to the rule. As a result, it has been
increasingly abandoned or, with careful wording, circumvented, in this
jurisdiction, in line with developments in the US, Australasia and Canada, to
the extent that it could now be considered almost obsolete.
(a)
Ireland
2.196
The traditional rule against expert evidence on issues which pertain to
the ultimate issues in the case can be seen in The People (DPP) v Kehoe.[315]
Here, O’Flaherty J felt that the expert psychiatrist had “overstepped the mark”
when he expressed an opinion that the accused did not have an intention to kill
and that the accused was telling the truth.
2.197
This was a murder case and the issue for the court was to decide whether
the accused could avail of the defence of provocation. In expressing an opinion
that the accused did not have an intention to kill, the expert was clearly
trespassing on the duty of the jury to decide on provocation.
2.198
However, a more flexible approach can be seen in later cases where the
courts have recognised that a strict application of the exclusionary rule is
not always appropriate. For example, Barron J. in McMullen v Farrell[316] stated a belief that there are certain cases where
professional witnesses are entitled to express their opinion on the question
which the court has to decide.
2.199
This development is not unremarkable as a considerable body of
inconsistent case law was generated by the rule.[317]
This inconsistency of application can be explained by recognising that the
reason for adducing expert evidence was that the finder of fact did not have
the expertise on which to base a decision.
2.200
One area where the ultimate issue rule has often been raised is in the
context of nullity proceedings. In many such cases a medical inspector will be
appointed to consider whether both parties had the mental capacity to enter
into the marriage, a question which essentially amounts to the ultimate issue
in the case. This fact was acknowledged by Budd J in S(J) v S(C)[318]
“In some unopposed nullity cases, the Consultant Psychiatrist
gives an opinion verging on the ultimate issue which the Court is going to have
to decide, namely, whether one or other of the parties suffered from such
illness at the time of the ceremony of marriage as to be incapable of entering
into and sustaining a viable marital relationship.”[319]
2.201
However, it can be argued that the role of the medical inspector in such
cases is not decisive of the issues. Although the medical inspector will give
an opinion about whether or not, in his or her expert view, the individual was
mentally capable of entering into a viable marriage at the time of the
marriage, it remains the role of the court to decide whether or not to grant
the annulment. Although the court will take the expert’s evidence into account
this is not binding and it is open to the court to reject or place little
weight to the evidence and grant a decision that is not reflective of the
expert’s evidence.
2.202
Furthermore, despite the decline in the ultimate issue rule in Irish
case law, the courts are very careful to avoid experts making widespread
findings of fact, and it has been stressed in several cases that the judge
cannot abdicate his role to the expert, no matter how distinguished.[320]
(b)
England
2.203
The common law rule has been similarly eroded in England. It has been
statutorily abolished in the context of civil law proceedings, but despite
calls for reform, continues to have application in the context of criminal
proceedings.
(i)
Civil
Proceedings
2.204
In its 17th Report Evidence of Opinion and Expert Evidence
the English Law Reform Committee expressed the opinion that in certain cases,
the opinion of an expert on an issue in the proceedings can be a useful aid to
the judge who has to decide the case and thus the Committee saw “no reason why
an expert witness should not be asked the direct question as to his opinion on
an issue in the action which lies within the field of his expertise.”[321]
2.205
Pursuant to the recommendations of the Law Reform Committee, the Civil
Evidence Act 1972 gave express statutory permission for the giving
of evidence on an ultimate issue. Section 3 of the Act provides:
“(1) Subject to any rules of court made in pursuance of Part
I of the Civil Evidence Act 1968 or this Act, where a person is called as a
witness in any civil proceedings, his opinion on any relevant matter on which
he is qualified to give expert evidence shall be admissible in evidence
(3)In this section "relevant matter" includes
an issue in the proceedings in question.”
2.206
Notwithstanding this generality however, Section 5(3) of the Act
qualifies this general permission by giving the court the general discretion to
exclude any evidence it so wishes.
2.207
In English civil cases therefore, evidence on an ultimate issue can be
admitted, but equally it can be prohibited where, in the opinion of the court,
it is not relevant or has little or no probative value, or where the court
finds for whatever reason it should not be admitted.
(ii)
Criminal
Proceedings
2.208
In criminal proceedings, the traditional strict application of the
ultimate issue rule has been replaced by a more flexible approach; however, the
rule continues to apply.
2.209
In DPP v A and BC Chewing Gum Ltd.[322] evidence of child psychologists was excluded in a case
involving a charge of contravening the Obscene Publications Act 1959 by
publishing bubble gum battle cards which, it was alleged, were of an obscene
nature. On appeal, the question was raised if it had been appropriate to
exclude the evidence for reasons that it was evidence on the very issue the
court had to determine – i.e. if the cards were of an obscene nature.
2.210
The court drew a distinction between questions about the effect
literature, purported to be of an obscene nature, would have on young children,
and the question of whether the literature in question was such “to deprave and
corrupt” such children. The second question, they held, was a matter for the
court, not due to the fact that it amounted to an ultimate issue in the case,
but due to the fact that such a question was not outside the range of scope and
knowledge of the ordinary person.
2.211
In the course of the judgment, however, Parker C.J. alluded to the
general degeneration of the ultimate issue rule:
“With the advance of science more and more inroads have been
made into the old common law principles. Those who practise in the criminal
courts see every day cases of experts being called on the question of
diminished responsibility, and although technically the final question ‘Do you
think he was suffering from diminished responsibility’ is strictly
inadmissible, it is allowed time and time again without any objection.”[323]
2.212
More recently, in R v Stockwell[324] Taylor J expressly stated that the ultimate issue rule
has been effectively abolished in criminal cases in England:[325]
“The rationale behind the supposed prohibition is that the
expert should not usurp the functions of the jury. But since counsel can bring
the witness so close to opining on the ultimate issue that the inference as to
his view is obvious, the rule can only be, as the authors of the last work
referred to say, a matter of form rather than substance. In our view an expert
is called to give his opinion and he should be allowed to do so. It is,
however, important that the judge should make clear to the jury that they are
not bound by the expert’s opinion, and that the issue is for them to decide.”[326]
2.213
It is arguable, however, that despite the near eradication of the
ultimate issue rule in England, many of the older cases where evidence on the
ultimate issue was excluded would still have the same result, if not on the
same grounds, if decided today.
2.214
This is because the other admissibility rules, for example the
requirement that the issue is one that is outside the knowledge and expertise
of the court, will still apply to exclude evidence that is not considered
necessary as a result of the court’s determination not to let the role of judge
and jury be usurped by expert witnesses. This is well demonstrated by the decision
of the court in DPP v A and BC Chewing Gum Ltd.[327]
2.215
Another example of this approach can be seen in R v Ugoh.[328]
This was a group rape case where expert evidence from a psycho-pharmacologist
was admitted to the extent that the expert could state the likely effects of
alcohol on the complainant’s capacity to consent to sexual intercourse and to
explain how the complainant was likely to act with the quantity of alcohol in
her blood stream, both of which were issues in the case.
2.216
However the expert was not allowed to give evidence on the issue of
whether or not the complainant’s capacity to consent would have been evident to
those who were with her at the time. The court did not object to the evidence
due to the fact that it went to an ultimate issue in the case. It did object
due to the fact that the accused’s ability or inability to appreciate the
complainant’s inability to consent was not an issue for which expert evidence
was necessary, as this was not outside the scope of knowledge of the jury.
“The appellants were normal young men, not themselves under
the influence of drink or drugs, whose ability or inability to appreciate the
complainant’s inability to consent were a matter for the jury to assess. Their
age, inexperience, tiredness or desires at 3.00 a.m. on a Saturday night or
early Sunday morning were all matters for the jury to assess.”[329]
2.217
As can be seen from this case law, despite uncertainty relating to the
extent of the application of the ultimate issue rule in English criminal
proceedings, the English courts have retained a wariness to admit any expert
evidence that may unduly encroach on the role and function of the judge or
jury, regardless of the rule used to prohibit this evidence.
(c)
Australia
2.218
In its 1985 Interim Report on Evidence the Australian Law Reform
Commission recognised that the ultimate issue rule has been repeatedly
criticised by numerous Law Commissions. [330]
2.219
They also point out that there have been inconsistencies in the correct
formulation and application of the rule and that “the courts have departed from
the most commonly understood version of the rule when they have felt it
appropriate, resulting in an ad hoc development of the law.”[331]
2.220
The Commission further argued that the underlying rationale for
the rule, namely the assumption that the role of the finder of fact would be
usurped without it, is erroneous because such an assumption is founded on a
misunderstanding of the role and function of witnesses, whose task it is to
present the evidence, and that of judges and juries, whose task it is to
evaluate this evidence. [332]
“The popular justification for the rule, that it prevented
the expert or lay witness from usurping the function of the jury, is
misconceived. There is no usurpation. The jury, in any event will be told that
they must assess the evidence, lay and expert. It is upon the most important
issues that expert assistance can be crucial and the courts need to be able to
receive it. It is necessary to give both sides, be the proceedings criminal or
civil, full opportunities to call witnesses to give relevant evidence.”[333]
2.221
The Commission therefore opted to concur with the approach of the United
States Federal Rules of Evidence and with the recommendations of Law Reform
Commissions in Canada,[334] Scotland[335]
and South Australia,[336] that the
ultimate issue rule be abolished
2.222
With the introduction of the Evidence Act 1995 (Cth) the common
law rule against expert evidence going to the ultimate issue was removed by
Section 80. In its Issues Paper on Evidence, the Australian Law Reform
Commission examined the operation of section 80. [337]
2.223
The Commission acknowledged that the removal of the rule had led to
problems in certain categories of cases, such as professional negligence cases,
where concern was raised that juries in such cases may be overly influenced by
expert evidence on the central issue involved, i.e. whether or not the
defendant has been negligent.[338]
They also noted that there have been several calls for the revival of the rule,
based on concerns about the effect of such evidence on a jury.[339]
2.224
These arguments were revisited in the Final Report on Uniform Evidence
law, where the combined commissions considered whether or not there is a need
for the revival of the rule.[340] The
Commission highlighted the many submissions that had been made in support of
the rule but ultimately came to the conclusion that the uniform Evidence Acts
seem to be operating satisfactorily without the rule and so recommended that
the ultimate issue rule remain abolished and that it should not be
reintroduced.[341]
(d)
New Zealand
2.225
In the New Zealand case R v Howe[342] the Court of Appeal referred to the general trend of a
move away from a strict application of the ultimate issue rule;
“The rule that a witness cannot give evidence on the ultimate
issue has now been very much eroded. Experts do commonly give evidence on
matters on which the ultimate decision in the case turns.”[343]
2.226
The rule and the desirability of its retention was also the subject of
consideration in the discussion paper on Expert Evidence and Opinion Evidence of
the New Zealand Law Reform Commission.[344]
The Commission acknowledged that in practice the rule has proved to be too
restrictive and tends to be widely ignored.[345]
2.227
The Commission acknowledged that the rationale behind the rule is the
danger that the fact finder will be over-impressed by unreliable opinion and
give it weight which it does not deserve.
2.228
However, the Commission expressed the view that this danger is present
regardless of whether the evidence is directed at an ultimate issue or not, and
therefore a more appropriate approach is to assess any evidence directly “the
primary issue being whether the evidence is helpful and reliable, not whether
it goes to the ultimate issue.”[346]
This recommendation was approved in the New Zealand Law Reform Commission’s
Final Report on Evidence.[347]
2.229
The Commission’s recommendations were implemented in the New Zealand Evidence
Act 2006. Section 25(2)(a) provides that an opinion of an expert is not
inadmissible because it is about an ultimate issue to be determined in the
proceedings.
2.230
Expert evidence on an ultimate issue in a case is therefore statutorily
admissible in both criminal and civil proceedings in New Zealand.
(e)
Conclusion - Is
Reform of the Ultimate Issue Rule Necessary?
2.231
As already discussed, the ultimate issue rule against permitting expert
evidence on matters which go to the ultimate issue in a case remains firmly
applied in this jurisdiction.
2.232
However, recent case law also reveals difficulties with the rule such as
inconsistent interpretation and application. This has led many jurisdictions to
expressly abolish the ultimate issue rule.
(i)
Abolition of the
Ultimate Issue Rule
2.233
It has been argued that the underlying basis for the rule, namely the
usurpation of the role of the jury, does not in fact require the rule. It
remains the function of the jury to accept or reject the opinion of the expert
and thus to decide on the ultimate issue; merely hearing the expert’s opinion
evidence on the ultimate issue does not amount to the expert having the final
say.
2.234
It is open to the Commission to recommend the abolition of the ultimate
issue rule and its replacement with a general admissibility test based on
whether or not the evidence is of assistance to the court, whilst at the same
time emphasising the informative and discretionary rather than binding nature
of the expert’s opinion, and the ultimate duty of the finder of fact to decide
the case.
2.235
Such a reform would remove the inconsistencies and barriers imposed by
the rule and ensure that the judge or jury have all necessary expertise
available to them on every issue involved in the case.
(ii)
Retention of the
Ultimate Issue Rule
2.236
There is also a valid argument to be made in favour of the retention of
the ultimate issue rule. The argument can be made that if “ultimate issue” is
properly interpreted, by its very definition expert evidence would never be
permitted or considered necessary.
2.237
Expert evidence is often necessary to explain to the judge or jury the
scientific or technical background of issues that are central in a case.
However, the role of the expert in such cases is not decisive of the issues.
2.238
The overriding function of expert testimony is to provide the finder of
fact with the necessary expert knowledge to come to their final conclusions.
The overriding function of the finder of fact is to use the expert information
given to them and then come to its own informed conclusions about the ultimate
issue involved in the case.
2.239
Although the court will take the expert’s evidence into account, this is
not binding and it is open to the court to reject or place little weight on the
evidence and to give a decision that does not reflect the expert’s
evidence.
2.240
This interpretation of the ultimate issue rule endorses both the
underlying roles of the expert witness and of the judge and / or jury. The
ultimate issue rule should this be considered as prohibiting an expert from
giving an opinion if to do so would involve unstated assumptions as to either
disputed facts or propositions of law.[348]
2.241
The retention of the rule in principle is important, provided that the
court is left with the discretion to allow such evidence in a particular case
where necessary. The Commission is of the view that the rule
serves the valuable purpose of strengthening the role of the finder of fact by
ensuring that the expert witness does not usurp the role of the court to
determine the issues in a case. It is also a useful benchmark for the expert
witness to ensure that he or she does not step over the line in relation to the
evidence that is permissible and stray outside the area of expertise for which
expert testimony is being adduced.
2.242
The Commission provisionally recommends that the Ultimate Issue rule
should not be abolished and should have continued application as it does not
impose any excessive difficulties in practice.
2.243
The Commission provisionally recommends that the Court should continue
to be entitled to allow expert evidence to inform and educate the judge and or
jury about the background to the ultimate issue where necessary, whilst
emphasising that the ultimate decision on such issues is for the court and not
the expert.
(4)
Expert and Non-Expert Evidence of Fact
2.244
As recognised above, expert witnesses can often give expert evidence of
fact as well as expressing their opinion, such as where certain results or
techniques require expertise to explain. Furthermore, the distinction between
expert and non-expert evidence of fact can, in reality, have significant
ramifications. For example, the costs of an expert witness may be recovered
whereas those of a witness of fact may not. Similarly, while both witnesses of
fact and expert witnesses are equally legally compellable, it is rarely the
case in practice that the court will be called on to compel the attendance of
an expert witness, as generally a party will have a number of possible experts
on a particular issue to choose from, and it is clear that a reluctant or
unwilling expert is likely to do more harm than good to the party’s case.[349]
2.245
In the 1843 decision of Webb v Page[350]
Maule J set out a clear definition of the distinctions between witnesses who
are called to give evidence of fact on facts which they have seen, and those
expert witnesses who are called to give evidence of fact on facts of which he
is knowledgeable as a result of experience or study in the field of expertise:
“There is a distinction between the case of a man who sees a
fact and is called to prove it in a Court of Justice, and that of a man who is
selected by a party to give his opinion on a matter with which he is peculiarly
conversant from the nature of his employment in life. The former is bound, as a
matter of public duty, to speak to a fact which happens to have fall within his
knowledge – without such testimony the court of justice must be stopped. The
latter is under no such obligation. There is no necessity for his evidence, and
the party who selects him must pay him.”[351]
2.246
More recently, however, the distinction between the two is not always
clear cut, and several cases have had trouble distinguishing between expert and
non-expert evidence of fact.[352] For
example in The People (DPP) v Buckley[353]
the question arose whether the defendant’s admission that the substance
recovered from his pocket was cannabis was sufficient evidence that it was
cannabis in the absence of a certificate of analysis from the Garda Forensic
Science Laboratory confirming that it was such.
2.247
Charleton J relied on the decisions in R v Chatwood[354] and Bird v Adams[355] in ruling that “the qualities of cannabis are not now so
unusual as to put it in a different category so that expert evidence of its
presence is always required.”[356]
Charleton J appeared to be of the opinion that the defendant could give factual
evidence that the substance he had in his possession was cannabis. “An accused,
who admits a substance is cannabis can be, but not necessarily must be, relied
on to know what he is talking about.”[357]
2.248
In Bird v Adams[358]
the English High Court pointed out that:
“…there are many instances where an admission made by a
defendant on a matter of law in respect of which he was not an expert was
really no admission at all, e.g., a defendant could not know in a bigamy case
whether a foreign marriage was valid…but here the…defendant certainly had
sufficient knowledge of the circumstances of his conduct to make his admission
at least prima facie evidence of its truth.”
2.249
This decision was relied on in R v Chatwood[359] where a heroin addict’s confession that he had injected
heroin was sufficient evidence to prove that the substance in question was
heroin. The Court of Appeal appeared to characterise the admission as expert
opinion evidence, but Hodgkinson & James argue that there is no real
difference between the classic definition of lay witness evidence as evidence
perceived by the senses, and the evidence given in this case. They consider
that the court may have been misled due to the fact that a heroin rush is not
perceived by one of the five senses when injected, but nevertheless that the
admission should have been considered as evidence of fact.[360]
2.250
These cases highlight that the lines between expert and non-expert
opinion evidence of fact are often blurred, particularly where narcotics cases
are involved. However it would appear from the foregoing that the courts are
willing to admit the evidence as evidence of fact, as it will remain open to
the trier of fact to decide on the value or lack thereof to attach to such
evidence.
2.251
The Commission believes that this is an important requirement as if it
is unclear, greater evidential weight may be given if it appears that the
expert is stating a fact, rather than his or her own opinion.
2.252
The Commission provisionally recommends that experts should be required,
as far as possible, to distinguish clearly between matters of fact and matters
of opinion when giving their expert evidence both orally and in the expert
report.
(5)
Non-Expert Opinion Evidence
2.253
Dickson J in R v Abbey[361] clearly elucidated one of the reasons
for the extent of the categories of expert evidence:
“The law of evidence…reposes on a few general principles
riddled by innumerable exceptions.”
(i)
Common Law
Exceptions to the Rule against Opinion Evidence
2.254
In keeping with this, a number of common law derogations from the
exclusionary rule outside of expert testimony can be seen.
(I)
Where Fact and
Inference are Indivisible
2.255
For example non-expert opinion evidence may be admitted where it is
necessary to do so because of the indivisibility of fact and inference in a
witness’ testimony. As explained by Mac Dermott LCJ in Sherrard v Jacob,[362]
there may be:
“…instances in which the primary facts and the
inference to be drawn there from are so adherent or closely associated that it
may be hard, if not impossible, to separate them.”
(II)
Matters of
Common Experience
2.256
The exclusionary rule may also be relaxed where the matter is within
“common experience within the ken of ordinary men,”[363]
for example an observation on someone’s state of mind at a particular time.
(III)
Matters
Incapable of Precise Appreciation
2.257
An exception may also be made where the matter is one that is not
capable of exact observation and the most that can be expected is an
approximation or estimation, for example evidence of identification, “the speed
of a motor car, the size of a crowd, the temperature of a day, and any question
of measurement.”[364]
(IV)
Catch-All
Exception where Convenient to Do So
2.258
Finally, there is a broad, catch-all range of circumstances where
witnesses are permitted to give opinions where this is convenient and the
opinion does not go to the facts of the case. As Lavery J stated in AG
(Ruddy) v Kenny: [365]
“…there are innumerable incidents of everyday life upon which
an ordinary person can express a useful opinion and one which ought to be
admitted.”
2.259
In this case, the ‘incident’ in question was drunkenness, which, in the
view of the learned judge, was a matter on which an ordinary person was capable
of expressing an opinion, without the need of the expert opinion of a member of
An Garda Siochana or a medical expert.
(ii)
Statutory
Exceptions to the Rule against Opinion Evidence
2.260
A number of statutory exceptions have also developed over time. Section
3(2) of the Offences against the State Act (Amendment) Act 1972[366]
provides that where certain members of the Garda Siochana testify in evidence
that ‘he believes that the accused was at a material time a member of an
unlawful organisation,’ then this statement constitutes evidence that the
accused was then such a member.
2.261
Other statutory provisions which permit express opinions to be adduced
in evidence include the Proceeds of Crime Act 1996,[367]
the Domestic Violence Act 1996[368]
and the Competition Act 2002.[369]
E
The Weight and Value to be Attached to Expert Evidence
2.262
As will be discussed below, the general approach of the courts is that
reliability of expert evidence is a matter to be assessed at the weight, rather
than admissibility, stage of litigation. Whereas the court might be willing to
admit expert evidence freely, such a favourable view may not always be taken
when assessing the weight to be attached to such evidence.
(1)
The Court Assesses the Value of the Expert Evidence
2.263
It is important to note that the court is not obliged to accept or act
on expert evidence and can refuse to admit it or reject it if they so wish. The
decision making function of the court must not be usurped by the expert, and it
remains at all times the duty of the court to determine the truth of the matter
at hand. The evidence of an expert will therefore only be of persuasive, not
binding effect, to be taken into account along with all of the other evidence
in the case.
2.264
This was acknowledged by the court in Davie v Edinburgh Magistrates[370] where the
court rejected the defender’s contention that the court was bound to accept the
evidence of their main expert witness as no similar expert had been adduced by
the pursuer to counter his conclusions. Although Lord President Cooper
acknowledged the fact that the expert’s opinion was uncontested, however, he
went on to state:
“Expert witnesses, however skilled and eminent, can give no
more than evidence. They cannot usurp the functions of the jury or Judge
sitting as a jury……The scientific opinion evidence, if intelligible, convincing
and tested, becomes a factor (and often an important factor) for consideration
along with the whole other evidence in the case, but the decision is for the
Judge or jury.”[371]
(2)
The Evidence of Lay Witnesses can be given Greater Weight
than Expert Evidence
2.265
In this jurisdiction it has long been recognised that the court is
entitled to prefer the evidence of lay witnesses over experts if this appears
to fit in better with the facts of the case. In Poynton v Poynton[372]
the court held that where two witnesses were advanced in support of a case, one
being a witness of fact who had personally perceived the event, and one being
an expert witness who expressed an opinion on the issue in question (in this
case the sanity of a testator) the evidence of the witness of fact is to be
preferred. Madden J reasoned:
“We have the highest authority for the proposition that mere
speculative opinion and expressions of opinion cannot reasonably be compared
with the evidence of witnesses who had an opportunity of applying the ordinary
facts of mental capacity….in my opinion the evidence given on behalf of the
plaintiff (supporting the will) runs on a different plane from the purely
speculative evidence, unaccompanied by any attempt to test the mental capacity
of the testator which was relied on by the defendant, and that the jury acted
unreasonably in not differentiating between the two classes of evidence.”
2.266
This judgment would appear to hold that where a witness of fact and an
expert witness are presenting conflicting evidence, the testimony of the
witness of fact is to be afforded greater weight. However, it is also evident
from this judgment that the expert witness was criticised for his failure to
make a thorough investigation of the testator.
2.267
In circumstances where the expert has presented a well researched and
thorough argument, particularly where the opinion relates to issues of medical
expertise, it can be argued that the opinion of any expert may in some cases be
of far more benefit than the unlearned opinion of a witness of fact. However,
there are a number of cases in this jurisdiction where lay evidence was
accorded higher weight than expert evidence, which demonstrates that the courts
continue to place a high value on the testimony of lay witnesses.
2.268
For example, the Supreme Court in Hanrahan v Merck, Sharpe &
Dohme Ltd,[373]
agreed with the plaintiff’s contention that “there is greater force and
credibility to be given to the first-hand evidence of witnesses whose
truthfulness was not called into question, as opposed to the largely abstract
ex post facto evidence of scientists who had no direct or personal experience
of the matters complained of.”[374]
2.269
There are also a number of examples of the Court preferring the
evidence of lay witnesses over scientific testimony in criminal cases where
experts are advanced in support of a defence of insanity to a murder charge.
For example in both The People (AG) v Fennell (No. 1) [375] and The People (AG) v Kelly[376] the jury
preferred lay testimony which supported the proposition that the accused was
sane at the time of the fatal attack. On appeal, the Court in both cases
stressed that the jury were perfectly entitled to do so.
2.270
A series of nullity cases also demonstrate that the courts are quick to
prefer their own opinion over that of an expert where they believe this is most
appropriate and so attach little value to the expert’s opinion.[377]
This highlights that the courts are wary prevent a situation of ‘trial by
expert’ and will not attach high or excessive weight to an expert’s opinion if
the opinion of the court, having heard all of the evidence, does not
correspond.
(3)
Factors to be Taken into Account When Determining Weight
2.271
A number of cases have discussed the range of factors to be taken into
account when determining the appropriate weight to attach to any expert
evidence. In this jurisdiction in AG (Ruddy) v Kenny,[378]
Davitt P outlined some of the factors need to be taken into account to
determine the weight to be given to such evidence:
“It will depend upon the nature of the evidence, the
impartiality of the witness and his freedom from bias, the facts on which he
bases his opinion, and all the other relevant circumstances.”
2.272
Similarly, in the English decision Davie v Edinburgh Magistrates[379] Lord President Cooper held that the value and
weight to be attached to expert evidence depends upon:
“…the authority, experience and qualifications of the expert
and above all upon the extent upon which his evidence carries conviction and
not upon the possibility of producing a second person to echo the sentiments of
the first expert witness.”
2.273
However, the main worry is that, despite these guidelines, greater
deference will be given to the opinion of an expert whose testimony is eloquent
and impressive, but not necessarily very relevant or reliable. The danger that
excess weight will be accorded to a particular theory can be heightened when
the task of determining weight is given to a lay jury or tribunal with little
legal training, regardless of warnings given by a judge in summing up to
prevent this.
2.274
In a 1999 survey of Australian judicial perspectives on expert
testimony, approximately 70% of judges surveyed conceded that they had had
occasions where they had felt that they had not understood expert evidence in
the cases before them. 20% of respondent judges said that they “often”
experienced difficulty in evaluating opinions expressed by one expert as
against those expressed by another.[380]
2.275
This survey reveals a potential difficulty created by the situation
where the judge or jury is required to assess the value of evidence that is
being admitted for the sole reason that it is considered outside of the scope
of knowledge of the judge or jury.
(4)
Conflicting Expert Testimony
2.276
The question of weight also encompasses the issue of conflicting expert
evidence. In most litigation, both parties will advance experienced experts to
present their own, often contradictory, arguments. The difficulty for the
finder of fact to decide on which expert to agree with is apparent when one
considers that the reason for adducing the evidence in the first place is the
fact that it is outside the range of knowledge of the court.
2.277
Lord Woolf summarised the inherent contradiction within expert evidence
well in his Final Report on reform of the English civil justice system, Access
to Justice:
“The traditional way of deciding contentious expert issues is
for a judge to decide between two contrary views. This is not necessarily the
best way of achieving a just result. The judge may not be sure that either side
is right, especially if the issues are very technical or fall within an area in
which he himself has no expertise. Nevertheless, he hopes to arrive at the
right answer. Whether consciously or not his decision may be influenced by
factors such as the apparently greater authority of one side's expert, or the
experts' relative fluency and persuasiveness in putting across their
arguments.” [381]
2.278
This effectively means that in the ‘battle of the experts,’ the opinion
given by the witness with the greater oratorical skills may be the one that
sways the opinion of the judge or jury, particularly where complex issues are
in question, regardless of whether the opinion is the more reliable in the
circumstances.
2.279
It was stressed in Best v Wellcome Foundation Ltd.[382]
that the function of the court where there is a conflict of evidence is not to
decide which witness they prefer. Rather, as Finlay CJ stated:
“The function which the court can and must perform is to
apply common sense and a careful understanding of the logic and likelihood of
events to conflicting opinions and conflicting theories concerning a matter of
this kind.[383]
2.280
This is a reasonable statement; however, it is submitted that, in
reality, expert evidence is being advanced more and more frequently on complex
subjects and theories. In such instances, applying common sense and logic may
not make the task any easier. The inherent difficulty was noted over a century
ago by the great American jurist and judge Learned Hand when he explained that:
“But how can the jury judge between two statements each
founded upon an experience confessedly foreign in kind to their own? It is just
because they are incompetent for such a task that the expert is necessary at
all…..If you would get at the truth in such cases, it must be through someone
competent to decide.[384]
2.281
More recently in Ireland, O’Sullivan J, writing extra judicially, gave a
vivid description of the difficulties he faced in trying a medical negligence
case. The task of the judge, he explained, was “to apply the rules of
probability to two eminently distinguished and coherent bodies of evidence
which were in mutual conflict,” a task which left him feeling like “an
intellectual pygmy looking up at two giants: from that vantage point one simply
cannot tell which of them is taller.”[385]
F
Usurpation of the Role of Judge or Jury
2.282
Kenny states that there are three ways in which experts may usurp the
role of others in the legal process. They may usurp the function of the jury by
giving a conclusion on the ultimate issue in the case rather that providing
information to the jury to enable them to reach a more informed conclusion.
They may usurp the role of the judge, by imposing on the jury their own
interpretation of statutory terms such as ‘responsibility.’ Finally, they may
usurp the role of the legislature by giving opinions on general policy in
relation to the convictions. For example, “that people who are sick in a
certain way should not be sent to prison.”[386]
2.283
Therefore, along with the risk that unwarranted weight will be given to
expert evidence, there is also a related and overlapping risk that the opinion
of the expert will be taken on board to decide the case at hand, resulting in
an effective ‘trial by expert.’ This is particularly so now, since the rule
prohibiting the proffering of expert witness opinion on the ultimate issues of
a case has been all but abandoned.
2.284
It stands to reason that there is a real risk that a lay jury, and in
some cases even experienced judges, might place more emphasis on the opinion
given by esteemed experts than on the conclusions that they might draw
themselves. It has been repeatedly stressed in the case law that a finder of
fact cannot abdicate his or her function to an expert no matter how
distinguished.
2.285
For example in R v Turner[387]Lawton
J was quite firm in his comments that the courts would be vigilant to prevent
‘trial by psychiatrist’:
“We do not find that prospect attractive and the law does not
at present provide for it… we are firmly of the opinion that psychiatry has not
yet become a satisfactory substitute for the common sense of juries or
magistrates on matters within their experience of life.”[388]
2.286
In this jurisdiction, O’Flaherty J in The People (DPP) v Kehoe,[389]
pointed out that the questions as to whether the accused was telling the truth
and whether he had an intention to kill were:
“…clearly matters four-square within the jury’s
function and a witness, no more than the trial judge or anyone else, is not
entitled to trespass on what is the jury’s function.”[390]
2.287
In The People (DPP) v Yusuf Ali Abdi[391]
Hardiman J warned:
“The role of the expert witness is not to supplant the
tribunal of fact, be it judge or jury, but to inform the tribunal so that it
may come to its own decision. Where there is a conflict of expert evidence it
is to be resolved by the jury or by the judge, if sitting without a jury,
having regard to the onus of proof and the standard of proof applicable in the
particular circumstances. Expert opinion should not be expressed in a form
which suggests that the expert is trying to subvert the role of the finder of
fact.”
2.288
Similarly, in The People (DPP) v Fox[392]
the Court approved of the comments of Lord President Cooper in the Scottish
case Davie v Edinburgh Magistrates.[393]
This extract has since been cited with approval in a number of cases in this
jurisdiction:[394]
“However skilled or eminent, he can give no more than
evidence. They cannot usurp the functions of the jury or the judge, sitting as
jury, any more than a technical assessor cannot substitute his evidence for the
judgment of a court.”
2.289
Related sentiments have been expressed in a series of nullity cases
where the courts have recognised that on the one hand, the evidence of
psychologists, psychiatrists and social workers is now recognised of being of
great importance in dealing with nullity cases, on the other hand however,
deciding the marital status of the parties remains the ultimate responsibility
of the judge. The function of any expert witness adduced is to help with this
task and not to usurp it. For example, Keane J stated in F(Ors C) v C:[395]
“How was the Court to decide what these phrases mean in the
context of any particular case? Not certainly by reference to the evidence of
psychiatrists; they can, of course, assist the court as to the nature and
extent of any mental illness suffered by a spouse, but it is the responsibility
of the courts alone and not of psychiatrists, however eminent, to determine
whether a decree of nullity should be granted.”
2.290
Similarly, Murphy J stressed in KWT v DAT[396]
that:
“…at the end of the day it seems to me that I cannot abdicate
my function to the experts, however distinguished, and even though they are, in
the present case, in agreement on the point that the parties to marriage did
not have an adequate emotional capacity to sustain the relationship of marriage.”[397]
2.291
This point was cited with approval in MCG(P) v F(A) [398] and F(G) v B(J),[399] highlighting the continuing reluctance of the judiciary to
pass the responsibility of deciding on essential elements of the case to an
expert witness. Budd J stated:
“When it comes to deciding the issues confronting the Court
then the buck firmly lands on the desk of the Court and cannot be shifted to
the inspector, however experienced and respected the medical inspector may be.”[400]
2.292
In practice however, where the judge is being asked to adjudicate on issues
about which he or she is completely inexperienced, and on which he or she is
undecided, it stands to reason that considerable deference will be given to
witnesses who present themselves as expert in the field, and present convincing
and impressive argument, peppered with technical terminology, even if this is
not the most accurate representation of the facts in the case.
2.293
Guidance was given about the role and function of an expert witness in
the English case of Liddell v Middleton[401]
where Stuart-Smith LJ said:
“The function of the expert is to furnish the Judge with the
necessary scientific criteria and assistance based upon his special skill and
experience not possessed by the ordinary layman to enable the Judge to
interpret the factual evidence of the marks on the road, the damage or whatever
it may be. What he is not entitled to do is to say in effect "I considered
the statements and/or evidence of the witnesses in this case and I conclude from
their evidence that the Defendant was going at a certain speed, or that he
could have seen the Plaintiff at a certain point.” As this is essentially a job
for the jury to decide.
2.294
He went on to consider the particular facts of the case and concluded in
this way:
"We do not have trial by expert in this country; we have
trial by Judge. In my judgment, the expert witnesses contributed nothing to the
trial in this case except expense. For the reasons I have indicated, their
evidence was largely if not wholly irrelevant and inadmissible. Counsel on each
side of the trial succumbed to the temptation of cross-examining them on their
opinion, thereby lengthening and complicating a simple case.
G
Junk Science and the Need for a Reliability Test
2.295
Testing the reliability of evidence can be particularly difficult where
scientific or technical evidence is in question. It has long been recognised
that the disciplines of law and science are founded in very different principles
and thus their interrelation can be strained. Heffernan points out that the two
disciplines “are characterised by notable differences in ideology, expectation,
methodology, language and discourse.” [402]
2.296
Applying scientific information to principles of law can prove to be
difficult task. This is because, according to Heffernan:
“Lawyers and scientists are creatures of their respective
cultures; they neither approach litigious issues in the same way nor speak the
same professional language. The search for scientific truth is a markedly
different enterprise from the law’s inquiry into the proof of allegation and
counter-allegation.”[403]
2.297
Problems can arise therefore where a party seeks to present expert
evidence about a recent scientific advance or other novel or emerging area of
expertise which may not have received widespread approval or recognition.
2.298
It can be difficult for a lay judge or jury, entirely unacquainted with
scientific or technical fields of expertise, to assess whether the evidence
coming before them has a reliable and well-established foundation, or whether
it amounts to what has been termed ‘junk science.’ [404] The term ‘junk science,’ refers to the
abuse of science and scientific terminology in the courtroom setting by
importing irrelevant or inaccurate evidence to advance a party’s arguments
2.299
The evidence envisaged under this section is that which relates to new
and emerging areas of expertise; scientific advances and new theories and
techniques that have not been previously tested in the courts. The various
jurisdictions have taken different approaches regarding how best to establish
the reliability of such expert testimony.
(1)
Ireland
2.300
In Ireland, all that is required in order for a party to have expert
evidence adduced is that the party can prove that the expert evidence is relevant
in that it is necessary to resolve the issue at hand, and that the party can
prove that the person in question is a sufficiently qualified expert in the
particular field.
2.301
In contrast with other jurisdictions, there is no admissibility test
which requires the party to demonstrate that the expert evidence they purport
to adduce can be considered as being founded on a sufficiently reliable basis.
(a)
Problems
Generated by Lack of Formal Reliability Test
2.302
It is clear that in certain instances it may not always be clear to the
court whether expertise would be helpful in a particular case, or whether or
not an issue is outside the scope of expertise of the finder of fact.
2.303
Although the majority of this evidence will undoubtedly be trustworthy
and dependable, there have been examples of infamous cases albeit a small
number) where inaccurate, for the most part scientific, evidence has led to
serious miscarriages of justice.
(b)
Judicial
Discretion to Refuse Unreliable Evidence
2.304
It can be argued that the existing admissibility requirements do, to a
certain extent, address the issue of reliability, as deciding on the
appropriateness of a witness’ expertise and the necessity for the evidence to
be based on the facts will inevitably involve a determination of how reliable
the evidence is.
2.305
Notwithstanding the absence of a set test, the court at all times
retains the discretion as to whether to admit expert evidence or not, and the
case law demonstrates that the Irish courts are keenly aware of the potential
for unreliable evidence and will not hesitate to reject evidence that does not
meet the appropriate threshold.
2.306
Although the cases in this jurisdiction that have considered the
trustworthiness of expert evidence, and the related need for a reliability
requirement are rare, on a number of occasions expert evidence has been
rejected on the basis that it is not sufficiently supported by legitimate expertise.
(c)
Case Law
Rejecting Expert Evidence
2.307
A case where expert evidence was rejected as unreliable is The People
(DPP) v Fox.[405] Here, the prosecution sought to rely on the evidence of an
expert on handwriting to prove that it was the accused’s signature on a
document in issue. The Court rejected this evidence, finding that the evidence
in question was not backed by any scientific criteria which would have enabled
the finder of fact to test the accuracy of the expert’s conclusions.
2.308
It was pointed out that it was common practice when giving expert
evidence of handwriting to give the similarities and dissimilarities of the
writing which the expert relies on in evidence and this was not done here.
Similarly, the expert was criticised for his sole reliance on lower case
writing without giving an explanation for doing so.
2.309
Similarly in NC v DPP [406]
the Supreme Court refused to prosecute the accused in circumstances where
hypnosis had been used on the complainant to recover suppressed memory of
sexual offences. It was not that hypnosis was seen as an illegitimate form of
expertise that lead to this result but rather the fact that the therapist was
not present at the trial for questioning about the procedures involved, and
considerable uncertainty surrounded the date and circumstances of the alleged
recovery of memory.
2.310
The Court was thus concerned about the absence of an “effective test or
control of the mechanism of alleged recovered memory.” This would infer that
the Irish courts will require a high level of proof of the reliability of any
novel form of expertise, even if no formal reliability test has been
enunciated.
(d)
Reliability of
DNA Evidence
2.311
The majority of judicial consideration on the appropriate reliability
test for expert testimony has been based on an examination of DNA evidence and
its trustworthiness.
2.312
In its Consultation Paper on the Establishment of a DNA Database
the Commission outlined a number of cases that had considered the reliability
of DNA evidence.[407] It was noted that the reliability of DNA technology has been
accepted in general terms in Ireland in The People (DPP) v Lawlor[408] and in The People (DPP) v Horgan.[409]
2.313
The Commission also outlined, however, a number of cases where the
individual DNA evidence given in the case was criticised or rejected. For
example, in People (DPP) v Howe[410]
an acquittal was directed as the DNA evidence was considered unreliable for two
reasons. First, the forensic scientist had no qualification in statistics
therefore could not determine the probability of the DNA belonging to another
person. Second, the prosecution had not disproved that the accused did not have
a brother, who could have had similar DNA.
2.314
A strong warning was given in the context of DNA testimony in People
(DPP) v Allen[411] where the Court of Criminal Appeal admitted the evidence,
but stated:
“Expert evidence comparing DNA profiles is a comparatively
recent scientific technique, and indeed it would appear that it is still being
perfected. As in many scientific advances, the jury have to rely entirely on
expert evidence. One of the primary dangers involved in such circumstances is
that, the matter being so technical, a jury could jump to the conclusion that
the evidence is infallible. That, of course, is not so in the case of DNA
evidence, at least in the present state of knowledge.”[412]
(e)
Conclusion
2.315
The case law already discussed demonstrates that even though there is no
formal test or yardstick which the court can use to help determine whether or
not the expert evidence which a party wishes to adduce is reliable, in reality
the Irish courts are anxious to ensure that expert evidence is substantially
sound before permitting it to form part of the evidence before the court.
2.316
In contrast with other jurisdictions there has been little judicial
debate or commentary in this jurisdiction on the reform of this area or on the
merits of the introduction of additional admissibility criteria based on the reliability
of the evidence.
2.317
However, there is growing academic literature on the issues of
reliability and junk science, and other jurisdictions have implemented various
reforms in this context. Legal developments in the United States in this area
have been the main catalyst for reform internationally, and notable case law in
the US (for example the Frye and Daubert decisions) has been used
as the basis for discussion on the need to introduce a reliability test
wherever this has been considered.
(2)
United States
2.318
The American courts have imposed more rigorous admissibility
requirements than most other common law jurisdictions in an effort to prevent
unreliable testimony and to ensure against the proliferation of junk science.
(a)
The Frye Test
2.319
The US debate on this issue began with the landmark decision in Frye
v United States.[413]
Here, the defendant sought to adduce expert evidence about the results of a
systolic blood pressure deception test, the precursor to the lie detector test,
to prove his innocence. The court refused to allow the evidence to be admitted.
In the course of the judgment they set down a new test for the reliability of
expert evidence,
“Just when a scientific principle or discovery crosses the
line between the experimental and demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential force of the principle must be
recognized, and while courts will go a long way in admitting expert testimony
deduced from a well-recognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it belongs.”[414]
(emphasis added)
2.320
This test engendered considerable debate and sometimes criticism in the
US but became the dominant test in the US for the next 70 years.[415]
It required parties who wished to adduce expert evidence to prove that the
evidence in question had gained ‘general acceptance’ in the field of expertise
from which it purported to belong, by demonstrating that the principle had
gained consensus amongst a considerable body of experts in the field.
(b)
The Daubert Test
2.321
The decision in Daubert v Merrell Dow Pharmaceuticals, Inc[416]
was the next major case to fuel the growing debate on ‘junk science.’ This was
a civil action where the plaintiffs claimed that a pregnant mother’s use of the
defendant’s anti-nausea drug, Bendectin, could result in her child developing
limb defects and sought to advance significant expert evidence to support this
proposition.
2.322
The US Supreme Court refused to admit the plaintiffs evidence and in
doing so, held that the Frye test had been impliedly overruled by Rule
702 of the Federal Rules of Evidence which deals with the use of ‘scientific,
technical or other specialised knowledge’ by the courts, as nothing in that
test required ‘general acceptance’ as a prerequisite to admissibility.[417]
On the basis of Rule 702, the Court then set down a new test;
“To summarize: ‘general acceptance’ is not a necessary
precondition to the admissibility of scientific evidence under the Federal
Rules of Evidence, but the Rules of Evidence - especially Rule 702 - do assign
to the trial judge the task of ensuring that an expert's testimony both rests
on a reliable foundation and is relevant to the task at hand. Pertinent
evidence based on scientifically valid principles will satisfy those demands.”
2.323
Blackmun J recognised that this new test may cause some difficulties in
its application, therefore a non-exhaustive list of factors that would help
establish if a science or proposition was sufficiently empirically tested were
listed in the course of the judgment.[418]
These are summarised by Imwinkelried as including;
i)
Whether the proposition is testable empirically. For example, if an
astrologer's claim cannot be tested in that fashion, it cannot qualify as
admissible “scientific knowledge” under Rule 702.
ii)
Whether the proposition has been tested. The proposition may be testable
and plausible; however it is a grave mistake to equate the plausible and the
proven. The proposition does not deserve scientific status until it has
literally been put to the test.
iii)
Whether the theory has a “known or potential rate of error”. When the
technique has an ascertainable error rate, the jury can more intelligently
decide how much weight to ascribe to the expert's testimony.
iv)
Whether the proposition has been subjected to peer review and
publication. On the one hand, Justice Blackmun insisted that peer review is
“not a sine qua non of admissibility”. A given proposition may be so
new, or of such limited interest that it is unrealistic to expect it to have
been published. On the other hand, peer review is “a relevant… consideration”.
Peer review can be circumstantial evidence that the proposition rests on proper
scientific procedure. Publication “increases the likelihood that substantive
flaws in methodology will be detected. …”
v)
Whether there are standards for using the methodology. The more
standardised the procedures, the easier it is for other scientists to retest
the proposition in question, and therefore the sounder the underlying
methodology.
vi)
Whether the methodology is generally accepted. Under Frye,
general acceptance is an exclusive test for admissibility. Frye elevated
general acceptance to the status of a test. Although the Daubert Court
rejected Frye, the Court correctly recognised that, like peer review,
general acceptance can be persuasive circumstantial evidence that the
methodology is sound. When a methodology is old enough to have garnered general
acceptance, other scientists have had a chance to retest the proposition. If
the technique still enjoys widespread support, presumably no one has identified
significant deficiencies in the research. [419]
2.324
This decision can be seen as moving the focus from requiring the
evidence to be generally accepted, to requiring the evidence to be empirically
validated. Bernstein argues Daubert requires the court to address two
distinct issues:
“First, are the studies or data upon which the expert is
relying trustworthy? Second, if so, are these studies or data actually
probative of the issues before the court?”[420]
2.325
Blackmun J in Daubert also explained that whereas Frye focused
“on exclusively ‘novel’ scientific techniques,’ Daubert was not so
limited and any expertise sought to be adduced in evidence, not just new
evidence, would have to conform to its requirements.[421]
This greatly expanded the categories of evidence which could be
scrutinised in terms of their reliability, as Frye jurisdictions had
often treated ‘soft-science’ as being exempt from compliance with the general
acceptance test.[422]
(c)
Post-Daubert
Position
2.326
In the aftermath of the Frye and Daubert decisions, different approaches
were taken by the various states. Although a number of states still subscribe
to the Frye test, the majority of states now follow the Daubert standard.[423]
Indeed, the case law following Daubert saw the courts become
increasingly strict about the reliability of expert testimony.
(i)
Expert Opinion can be Unreliable even if Methodologies
are Sound
2.327
For example in General Electric Co. v Joiner[424]
the respondent claimed that his exposure to certain materials used in the
course of his employment “promoted” his development of small cell lung cancer
and advanced expert evidence in the form of rodent studies and other vague
epidemiological data in support of his claim. The petitioners criticised the testimony of the experts in that it was “not
supported by epidemiological studies . . . [and was] based exclusively on
isolated studies of laboratory animals.”
2.328
The Supreme Court approved the decision of the
District Court to find in favour of the respondents, finding that the studies
cited by the expert were not sufficient support for his conclusions. For the
Court, Rehnquist J urged future courts to exclude expert evidence that
relied on misguided reasoning to infer causation from the available evidence,
even if the underlying general methodology used was valid:
“…conclusions and methodology are not entirely distinct from
one another. Trained experts commonly extrapolate from existing data. But
nothing in either Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence which is connected to existing data only by the
ipse dixit of the expert. A court may conclude that there is simply too great
an analytical gap between the data and the opinion proffered.”[425]
(ii)
Expert Opinion can be Unreliable Even Where the Expertise
is Non-Scientific
2.329
Likewise in Kumho Tyre Co v Carmichael[426]
the excluded testimony in question was that of a tyre expert who sought to give
evidence of “tyre technology” to the effect that he could give the reasons for
tyre failure having examined the tyre in question.
2.330
The Supreme Court expanded on Blackmun’s comments in Daubert to
the effect that the range of expert testimony that could be required to prove
its methodologies were sound is no longer confined to scientific fields but can
be applied to all fields of expertise, even those where expertise is being
claimed as a result of technical or practical experience:
“We do not believe that Rule 702 creates a schematism that
segregates expertise by type while mapping certain kinds of questions to
certain kinds of experts. Life and the legal cases that it generates are too
complex to warrant so definitive a match.”[427]
2.331
Breyer J acknowledged that the criteria set down in Daubert which
are to be used to assess the validity of any expert testimony are not
definitive but are meant to act as helpful guidelines. This is a recognition of
the fact that not all types of expert testimony are conducive to scientific
methods of empirical testing.
2.332
However, Breyer J did find that some of the Daubert criteria
could be used to evaluate the validity of non-scientific evidence, even
experience based testimony, and that the individual court in each case should
have a certain degree of leeway in relation to what factors are used to
determine the reliability of expert evidence. He gave the following examples:
“In certain cases, it will be appropriate for the trial judge
to ask, for example, how often an engineering expert’s experience-based
methodology has produced erroneous results, or whether such a method is
generally accepted in the relevant engineering community. Likewise, it will at
times be useful to ask even of a witness whose expertise is based purely on
experience, say, a perfume tester able to distinguish among 140 odors at a
sniff, whether his preparation is of a kind that others in the field would
recognize as acceptable.” [428]
(d)
Conclusion
2.333
The willingness of states to apply increasingly stringent admissibility
requirements came about in the wake of an increased awareness that much of the
expert evidence that was being proffered in litigation at the time was proving
to be erroneous or inaccurate.[429]
2.334
The tests in Frye and Daubert greatly reduced the
possibility for inaccurate evidence or junk science being admitted as expert
testimony, and both tests have been subject of copious commentary in the US,
both academically and in the case law.[430]
(3)
Australia
2.335
In its Issues Paper on Evidence, which formed part of its Review
of the Evidence Act 1995, the Australian Law Reform Commission
gave detailed consideration to what they term ‘the field of expertise rule,’ or
the requirement that “claimed knowledge or expertise should be recognised as
credible by others capable of evaluating its theoretical and experiential
foundations.”[431]
2.336
The Commission explained that the Uniform Evidence Act does not contain
a specific ‘area of expertise’ requirement, and that all the act requires is
that the person purporting to give expert evidence have “specialised
knowledge.”[432]
2.337
They further explain that the ‘field of expertise’ rule has been the
subject of contention at common law and that although different approaches have
been taken within the various Australian jurisdictions and courts, that the
applicable test has not yet been fully resolved.[433]
(i)
High Court of
Australia
2.338
The High Court of Australia originally adopted a ‘general acceptance’
style test. In HG v The Queen.[434]
The court held that in order to qualify as expert evidence, the expert’s
knowledge and experience of a particular area must be:
“….sufficiently organised or recognised to be accepted as a
reliable body of knowledge or experience.”[435]
2.339
The question of reliability was reconsidered more recently in Velveski
v The Queen.[436]
Here, the appellant was convicted of the murder of his wife and three children
and appealed on the grounds that inter alia expert evidence should not
have been admitted from the prosecution which sought to prove that the
appellant’s wife had been murdered rather than committed suicide. The appellant
argued that such evidence should not be admissible as it was not established
that, based on the test in HG v The Queen:[437]
“...there is a reliable body of knowledge and experience,
based on the observation of wounds, which would enable a person to express an
expert opinion whether particular wounds were self-inflicted.”[438]
2.340
This was rejected on appeal where it was held that whether wounds may
have been suicidally self-inflicted is capable of being the subject of expert
evidence if a suitable foundation as to the witnesses' training, study or
experience has been laid. They went on to discuss what would constitute
sufficient ‘training, study or experience:’
“[T]he words used in the section, necessarily include, as
they must in all areas of expertise, observations and knowledge of everyday
affairs and events, and departures from them. It will frequently be impossible
to divorce entirely these observations and that knowledge from the body of
purely specialised knowledge upon which an expert's opinion depends. It is the
added ingredient of specialised knowledge to the expert's body of general
knowledge that equips the expert to give his or her opinion.”[439]
2.341
These comments could be interpreted as a move away from assessing
reliability in terms of how well it has been organised or recognised towards a Daubert-style
assessment of the evidence in terms of the expert’s training, study or
experience.
2.342
These judgments have led commentators to find that the approach of the
Australian High Court is that while recognition may be one basis for a
conclusion of reliability, under the uniform Evidence Acts the ultimate test is
reliability’ of the expert’s knowledge or experience in an area.[440]
(ii)
South Australia
2.343
In the South Australian decision of R v Bonython[441] King CJ set down a test for the admissibility of expert
evidence in that jurisdiction. This test has been cited with approval on
several occasions in various common law jurisdictions.
“Before admitting the opinion of a witness into evidence as
expert testimony, the judge must consider and decide two questions. The first
is whether the subject matter of the opinion falls within the class of subjects
upon which expert testimony is permissible. This first question may be divided
into two parts; a) whether the subject matter of the opinion is such that a
person without instruction or experience in the area of knowledge or human
experience would be able to form a sound judgment on the matter without the
assistance of witnesses possessing special knowledge or experience in the area
and b) whether the subject matter of the opinion forms part of a body of
knowledge or experience which is sufficiently organised or recognised to be
accepted as a reliable body of knowledge or experience, a special acquaintance
with which of the witness would render his opinion of assistance to the court.
The second question is whether the witness has acquired by study or experience
sufficient knowledge of the subject to render his opinion of value in resolving
the issue before the court.”[442]
2.344
Therefore King CJ’s admissibility test can be summarised as requiring:
1.
The evidence comes within the categories of subjects on which expert
evidence is admissible. This can be broken down to two further requirements;
a.
the subject matter of the evidence is one that requires special
knowledge or assistance in order to make a sound judgment on (i.e. it is
outside the scope of knowledge of the ordinary person)
b.
the subject matter has been accepted as forming part of a
sufficiently organised or recognise reliable knowledge or experience to be
considered a reliable body of knowledge or experience
2.
The expert has sufficient qualifications or experience to be
considered an expert in the field.
(iii)
Victoria
2.345
In contrast with South Australia, the Victoria Court of Criminal Appeal
rejected the general acceptance rule in R v Johnson.[443]
Here Brooking J stated the applicable admissibility requirements in that
jurisdiction:
“Provided the judge is satisfied that there is a field of
expert knowledge … it is no objection to the reception of the evidence of an
expert within that field that the views which he puts forward do not command
general acceptance by other experts in the field.” [444]
(iv)
Reform of the
Australian Admissibility Requirements – The Addition of a Reliability Test
2.346
The need to have some sort of reliability test on the types of knowledge
submitted to be the subject matter of expert evidence was recently discussed by
the Australian, the New South Wales, and the Victorian Law Reform Commissions
as part of their combined review of Uniform Evidence Law in 2005. [445]
2.347
The Commissions acknowledged the ongoing debate as to whether an
additional admissibility requirement relating to reliability of the evidence
should be introduced and summarised the different approaches that have been
adopted by the various Australian courts and jurisdictions.[446]
2.348
The Commissions referred to the Frye and Daubert tests and
acknowledged that it has not yet been resolved to what extent these should be
apply in the context of the Uniform Evidence Act. In the Issues paper
the Commission summarised the arguments in this regard:
“One view is that the ‘specialised knowledge’ requirement of
section 79 should be interpreted as imposing a standard of evidentiary
reliability, so that expert opinion evidence must be derived from a reliable
body of knowledge and experience. At the least, aspects of the field of
expertise test, including ‘general acceptance’ and Daubert-style reliability
criteria may be able to be used to help determine the probative value of
evidence in the exercise of the general discretion to exclude evidence. On the
other hand, there may be concern about the restoration of a field of expertise
rule, contrary to legislative intent, through such interpretations of section
79.”[447]
2.349
In the final report, the Commission expressed the view that it was
unnecessary to recommend an amendment to import any of the tests, such as the Frye
test, that have been considered necessary at common law, or to clarify any
aspects of the ‘specialised knowledge’ requirement of s 79. Therefore, the
Commissions appeared satisfied to let determination of reliability to be
decided by the court on a case by case basis without any additional
admissibility barriers such as requiring the evidence to have been generally
accepted (Frye) or requiring the underlying methodology to be
scientifically verifiable (Daubert).
(4)
England & Wales
2.350
As in this jurisdiction, there is no formal or statutory reliability
test for admissibility of expert evidence. Expert evidence will be admitted once
it is relevant and the person seeking to give the evidence is sufficiently
qualified to be considered an expert.
2.351
Relevancy hinges on the ability of the evidence to be of assistance in
helping the court to reach a ‘fully informed decision,’[448]
a question that will in turn hinge on whether the issue is one which an
ordinary person would require instructions on the essentials of the necessary
field of expertise to make this fully informed decision.[449]
(a)
Judicial
Discretion and Flexible Case by Case Approach
2.352
Rather than create set categories of permitted evidence, or a formal
reliability test for admissibility, the English courts have taken a case by
case approach in assessing new scientific developments that come before the
courts.[450]
2.353
This was acknowledged by Gage LJ in R v Harris & Ors[451] where he stated:
“There is no single test which can provide a threshold for
admissibility in all cases. As Clarke demonstrates developments in
scientific thinking and techniques should not be kept from the Court. Further,
in our judgment, developments in scientific thinking should not be kept from
the Court, simply because they remain at the stage of a hypothesis. Obviously,
it is of the first importance that the true status of the expert's evidence is
frankly indicated to the court.”[452]
2.354
In recent years, the English courts have had to decide on the
reliability of certain types of new and novel types of scientific and technical
evidence in a number of cases. However, the court has resisted the formulation of
an additional admissibility test in the form of a reliability test.
(b)
Focus on the
Qualifications of the Expert
2.355
In R v Robb,[453] the prosecution sought to adduce an expert in phonetics to
give expert voice identification evidence after repeatedly listening to
recordings of the defendant’s voice.
2.356
Bingham L.J. laid down a two-pronged test for admissibility of expert evidence;
first, whether study and experience will give a witness’s opinion an authority
which the opinion of one not so qualified will lack, and if so, second, whether
the witness in question is peritus, that is skilled,[454]
and has adequate knowledge. Bingham LJ continued:
“If these conditions are met the evidence of the witness is
in law admissible, although the weight to be attached to his opinion must of
course be assessed by the tribunal of fact.”
2.357
The test propounded here by Bingham LJ arguably failed to take into
account the reliability of the evidence at all, focusing instead on expert
giving the evidence and their qualifications.
2.358
In R v Stockwell[455]
a facial mapping expert was called by the prosecution to help prove that the
defendants’ disguised face appeared on video films taken during a bank robbery
and attempted robbery. On appeal, the Court had to decide if this evidence was
rightly admitted.
2.359
The English Court of Appeal observed that the trial judge had described
facial mapping evidence as ‘breaking new ground’ went on to approve his
view that “one should not set one’s face against fresh developments, provided
that they have a proper foundation,” therefore allowing the evidence to be
admitted.
2.360
In relation to the test for admissibility, the court appeared to affirm
the approach taken in Robb:
“In such circumstances we can see no reason why expert
evidence, if it can provide the jury with information and assistance they would
otherwise lack, should not be given. In each case it must be for the judge to
decide whether the issue is one on which the jury could be assisted by expert
evidence, and whether the expert tendered has the expertise to provide such
evidence.”[456]
(c)
Move towards a
Reliability Test?
2.361
The decision in R v Gilfoyle[457]
came closer to referring to reliability as being requisite for admissibility.
Here, the court refused to admit evidence of a psychologist, submitted by the
defence, to prove that the deceased was in such a frame of mind prior to death
that she was likely to commit suicide. The court held that this ‘psychological
autopsy’ was a new developing brand of science that had not yet been properly
accepted within its field of expertise.
2.362
Rose L.J. observed that expert evidence “based on a developing new brand
of science or medicine” would not be admissible “until it is accepted by the
scientific community as being able to provide accurate and reliable opinion.”[458]
The court cited Strudwick & Merry[459] and Frye[460] in support of this view.[461]
(d)
Return to
Traditional Qualifications-Based Approach
2.363
However, Gilfoyle was criticised in R v Dallagher[462]
where Robb was again reasserted. In this case, the defendant
successfully appealed his murder conviction on the basis that fresh evidence
had emerged in the form of misgivings about the extent to which
ear print evidence alone could safely be used to identify a suspect.
2.364
The court here pointed out that the American approach in Frye[463]
had now been overtaken by the test propounded in Daubert[464]
and cited Cross & Tapper as encapsulating the current test in England:
“The better, and now more widely accepted, view is that so
long as the field is sufficiently well-established to pass the ordinary tests
of relevance and reliability, then no enhanced test of admissibility should be
applied, but the weight of the evidence should be established by the same
adversarial forensic techniques applicable elsewhere.”[465]
2.365
Although the court here mentioned the Daubert test, as well as US
Federal Court Rule 702 on which that decision was based, the Court of Appeal
failed to elaborate whether Daubert criteria should be applied in
England to ensure that the evidence had a sufficiently certain grounding, but
seemed to infer that the decision about the reliability and relevancy of the
evidence should continue to be decided by the judge on a case by case basis.
(e)
Problems with
Lack of Reliability Test
2.366
Although the court in Dallagher[466]
refused to find that the evidence should have been ruled inadmissible on the
basis of the Robb test, at the retrial this evidence was not
re-introduced by the prosecution and ultimately the accused’s conviction was
quashed. This highlights the potential for inaccurate evidence to lead to false
convictions.
2.367
Another example of this is R v Cannings[467]
where the appellant appealed her murder conviction on the basis of new advances
in scientific understanding of sudden infant death syndrome which showed that
multiple cases of the syndrome in one family was not so rare as had been stated
at trial by an expert witness. Again, the appellant had spent time in prison
before these developments came to life, underlining the potential for untested
evidence to have onerous implications for accused persons.
(f)
Confusion in
Recent Case Law
2.368
More recently, in R v Luttrell[468] the appellants sought to argue that a requirement for
admissibility includes proving that the evidence can be seen to be
reliable because the methods used can be sufficiently explained in cross
examination to test veracity or falsehood. This was rejected by the court, Rose
L.J. stating:
“We cannot accept that this is a requirement of
admissibility. In established fields of science, the court may take the view
that expert evidence would fall beyond the recognised limits of the field or
that methods are too unconventional to be regarded as subject to the scientific
discipline. But a skill or expertise can be recognised and respected, and thus
satisfy the conditions for admissible expert evidence, although the discipline
is not susceptible to this sort of scientific discipline.”[469]
2.369
In the course of this judgment Rose LJ acknowledged that two conditions
for admissibility have been recognised; first, that study or experience will
give a witness's opinion an authority which the opinion of one not so qualified
will lack; and secondly the witness must be so qualified to express the
opinion. Confusingly, Rose L.J. found the basis for this two-pronged
requirement not only in Robb but also in the South Australian decision R
v Bonython.[470]
2.370
However, in reality the decision in R v Bonython[471]
imposes more stringent requirements than Robb as it contains the added
requirement, not present in Robb, that “the subject matter of the
opinion forms part of a body of knowledge or experience which is sufficiently
organised or recognised to be accepted as a reliable body of knowledge or
experience.”[472]
2.371
It is apparent from this that Rose L.J. considered reliability relevant
to deciding if the conditions for admissibility are met, but he was of the view
that in itself reliability goes to its weight. Furthermore,
he did not seem to be of the view that the reliability requirement went so far
as the necessitate proof that the methods used can be tested in cross
examination, but merely requiring proof that the evidence had been sufficiently
organised or recognised as being so.
2.372
Similar confusion can be seen in the civil context. For example in Barings
plc v Cooper & Lybrand (No.1)[473]
Evan-Lombe LJ considered in some detail what the appropriate test for admissibility
of expert evidence should be for civil proceedings and found that the test
enunciated in R v Bonython[474]constituted
a good description of what was necessary to qualify.[475]
2.373
Evans Lombe summarised the principles set out in the governing
authorities as requiring the evidence to be based on “recognised expertise
governed by recognised standards and rules of conduct” which could clearly be
interpreted as requiring the evidence to
2.374
Therefore, despite repeated judicial emphasis that no additional
admissibility requirements exist other than those set out in Robb by
Bingham LJ, it can be argued that more recent English cases, both civil and
criminal, have applied a ‘general acceptance’ test without acknowledging that
this test was founded in Frye, which decision was expressly
rejected in R v Dallagher.[476]
(g)
Conclusion
2.375
As can be seen, the flexible approach of the English court has made it
easier to embrace emerging areas of expertise, and, as can be seen, the courts
have shown a willingness to accept many originally unconventional types of
identification evidence such as voice identification evidence,[477]
facial mapping evidence,[478] ear print
evidence,[479] and
genetic printing by DNA analysis.[480]
2.376
Furthermore, the English courts have repeatedly emphasised that the
appropriate test for admissibility is one that asks first, whether study or
experience will give the opinion of a witness an authority lacking in the opinion
of one not so qualified, and second, whether the person is sufficiently
qualified.
2.377
However, the negative consequences that can result from allowing
misleading theories or ‘junk science’ to advance a party’s case are also
evident from the above mentioned cases.
2.378
As a result, the courts should be wary that any desire to embrace new
scientific developments does not lead to the introduction of unreliable and
inaccurate evidence capable of leading to unsafe convictions.
2.379
Hodgkinson and James are critical of the lack of judicial debate about
how best to deal with expert evidence and the lessons that can be learned from
other jurisdictions.[481] They
recommend that the English courts would do well to consider applying the test
in R v Bonython[482]or at the
very least, introducing some a sort of Daubert style judicial guidance
to help the court assess whether the evidence is reliable to go before the
court.
(5)
A Reliability Test for Ireland?
2.380
The question to be asked is whether imposing a Daubert-like test
for admissibility in Ireland would be workable or beneficial? Imwinkelried
argues that in the light of the proliferation in use of expert witnesses in all
types of litigation in Ireland, and the substantial threat to justice posed by
flaws in expert testimony, the Irish courts would do well to take heed of US
developments in this area, and insist that any evidence adduced be empirically
tested and supported.[483]
2.381
This part of the chapter will now summarise the arguments that have been
made for and against the introduction of a reliability test.
(a)
Disadvantages –
Reasons to Retain the Status Quo
·
It has been argued that there would be a certain degree of circularity
in asking a court to decide on the reliability of evidence that is essentially
being introduced due to the fact that it outside of the range of knowledge of
the court.[484]
·
It has also been suggested that the reason for the lack of judicial
scrutiny on the need for a reliability requirement can be explained by the fact
that our system is adversarial in nature and therefore as a result, the process
itself tends to weed out unreliable testimony through cross-examination from
the other party thus negating the need for such a requirement at admissibility
stage.[485]
·
It has often been contended then that reliability is more appropriately
an issue to be taken into account when assessing the weight of the evidence
rather than admissibility.[486] In the context
of jury trials assessing the admissibility of evidence after it has been heard
could prove difficult for lay jurors.
·
Heffernan points out that there are a number of differences in the Irish
and American legal systems that might have a bearing on this issue.[487]
She notes in particular that juries play a much bigger role in American
litigation than in this jurisdiction. The risk of juries being unduly swayed by
effusive and ostentatious expert witnesses has long since been recognised as
being far higher than the risk of influencing a judge well versed in such
routines. Similarly, there are a number of procedural differences between the
Irish and American systems. For example the summary judgment mechanism in the
US aims to resolve proceedings at a pre-trial stage, or at least, reduce the
contentious issues at trial, and it is here that admissibility issues are often
resolved. Ireland has no equivalent procedure, which means that the Irish
system might be far less procedurally conducive to applying and enforcing a Daubert
based test, if introduced.
·
It can also be argued that a ‘general acceptance’ test, or a ‘reputable
body of opinion’ test of reliability, would in reality be too strict and too
conservative, and would cause much useful and reliable evidence to be excluded.
It could result in courts lagging behind advances in science and other
learning.[488]
·
Finally, it can be argued that the introduction of a reliability test is
unnecessary and superfluous. Despite high profile examples of miscarriages of
justice caused by unreliable or inaccurate expert testimony, such cases are
rare and the large majority of expert testimony that comes before the court
will relate to well established and undoubtedly reliable principles of
expertise. Furthermore, as pointed out by Hodgkinson and James:
“….most of the well publicised miscarriages of justice arise
not from the use of novel but flawed science but from the incorrect application
of well established scientific principles and techniques[489]
or from a misunderstanding of sound science[490]
or a failure of the prosecution to disclose material that could undermine its
scientific case[491] and/or,
occasionally, deliberate misrepresentations of the effect of forensic work.[492]”[493]
(b)
Advantages –
Reasons to Introduce a Reliability Test
·
It is equally arguable that Ireland would benefit from introducing a
reliability threshold for the admissibility of expert evidence, similar to that
introduced in other jurisdictions such as the US.
·
For instance, as discussed below, a reliability requirement would go a
long way towards eliminating the presence of junk science from being submitted
as evidence.[494]
·
Hodgkinson & James argue that the failure to encompass a reliability
requirement could have unfortunate consequences for example where
‘pseudo-science’ or new scientific developments are being proffered as evidence
as there is no onus on the expert to show that there is a link between the
issues in the case and the reliability of the expert knowledge.[495]
·
It has already been noted that the degree and range of subject matter of
specialisation has escalated over the years with new and more specialised forms
of ‘expertise’ appearing with more and more regularity. It can be difficult to
expect a court unacquainted with the complex evidence with which they are
presented, to evaluate the merits of this evidence or its reliability.
·
Requiring juries to evaluate the appropriate weight to accord to new and
untested scientific advances has the potential to lead to miscarriages of
justice, and that the better approach would be to prohibit expert evidence in
avant-garde areas of science or technology from being admitted until the area
has been sufficiently accepted or recognised as a reliable body of knowledge.[496]
2.382
Based on the foregoing, the Commission has provisionally come to the
conclusion that the arguments in favour of a reliability test are greater and
that it should be introduced as an additional requirement for admissibility of
all expert testimony.
2.383
The Commission provisionally recommends that a reliability test should
be introduced as an additional requirement for admissibility of all expert
testimony.
(c)
Appropriate Form of Reliability Test
2.384
The introduction of a reliability test has been considered to have
considerable merits. However, the question remains as to what form such a test
should take and how should it be introduced into Irish law.
(i)
Statutory Provision
2.385
One option that could be taken is the formulation of an express formal
and binding test for admissibility the elements of which would have to be
satisfied by all parties seeking to adduce expert evidence.
2.386
However, it is clear that there may be difficulties with creating such a
test in a stand-alone provision for reliability of expert evidence, and it
would be more appropriate to incorporate a reliability test provision into a
larger instrument on expert evidence in general containing all applicable rules
relating to expert evidence, such as part of an Evidence Code or Act.
2.387
Furthermore, the approach taken in other jurisdictions, even those where
an Act of Code of Evidence is provided for, generally appears to be that the
statutory provisions contain general provisions giving the judge in an
individual case the discretion to determine whether or not to admit the
evidence, and the appropriate test to be applied by the judge in coming to this
decision tends to be formulated in the case law.
(ii)
Judicial Guidelines
2.388
A more appropriate
approach, it is submitted, is to create a judicial guidance note on
admissibility which outlines the appropriate test that should be applied by the
trial judge when confronted with novel or other areas of expertise the
reliability of which is not clear.
2.389
This could be applied
as a non-exhaustive and non-binding guide that can be adverted to by the trial
judge in assessing whether or not to admit expert evidence.
2.390
The Commission provisionally
recommends the introduction of a judicial guidance note outlining the factors
that can be taken into account by the trial judge when assessing whether the
expert evidence in question meets the requisite reliability threshold.
(d)
Requisite Contents and Elements of a Test
2.391
Once the appropriate form has been decided on, the appropriate wording
and elements of the test to be introduced must be considered. From the above
discussion, two discernible approaches appear to have been taken in different
jurisdictions.
(i)
General Acceptance Test
2.392
The approach originally taken in the US in Frye, which also
constitutes the test applied in Bonython,[497]
is to require the evidence to have reached a set level of acceptance within the
field of expertise to which it relates which can then be used to vouch for its
validity.
2.393
This requires the party wishing to adduce expert evidence to demonstrate
that the principle has gained consensus, acceptance and recognition among a
considerable body of experts in the field.
(I)
Advantages
·
This test is advantageous as it is clear that the body best placed to
assess the merits and reliability of the evidence is the expert community from
which the principle stems. If the evidence has achieved acceptance within the
expert field itself, its reliability is greatly bolstered. This helps to ensure
that the trial judge will not struggle with the task of understanding and
assessing the reliability of evidence entirely outside of the scope of his or
her knowledge.
·
This argument is strengthened by the fact that a similar approach is taken
in professional negligence cases where the question of negligence is based on
whether or not the action taken is one which no reasonable professional in the
area would have taken.
·
It can be argued that the general acceptance test does not impose too
onerous a criterion where the expertise is sufficiently sound in terms of
reliability. Such evidence is likely to have achieved general acceptance
without difficulty. Evidence that has not been recognised by a large body of
experts within the field is more likely to be considered unreliable even where
other factors are used to determine this.
·
The general acceptance requirement would also ensure that there would be
a considerable body of experts who recognise the theory and would thus form a
considerable body of experts available to give evidence on the issue. It could
thus promote consistency in decision making.[498]
(II)
Disadvantages
·
It can be argued however that permitting the evidence to be adduced
solely on the basis of its acceptance by the expert community from which it
stems removes the decision about its reliability away from the court and into
the hands of the expert community, which may be seen as a usurpation of the
role of the judge and jury.
·
Furthermore, the general acceptance test, which requires acceptance
amongst a considerable body of experts, imposes a much higher burden on
the expert than does the test for professional negligence, which assesses
negligence on the basis of action that no reasonable professional would
have taken.
·
It can be argued that satisfying the general acceptance standard will
not automatically ensure the reliability of evidence. Peer review is a clear
example that a theory has achieved recognition and acceptance within a
particular field of expertise, yet assessment in terms of peer review has been
repeatedly criticised.[499] McMullan
gives the example of the Sokal article incident where an article was published
in an American peer reviewed article and its author later admitted the theory
discussed in the article to be a hoax.[500]
Its acceptance in the journal highlights the potential inadequacy of peer
reviewing as a filtering mechanism for unreliable areas of expertise.
·
The test can also be criticised in that it precludes certain evidence
from the outset, namely evidence that is so novel and new that it has not yet
been assessed by the expert community to which it relates, without assessing
the foundational basis of the evidence at all.
·
It may occur that a case arises where the key point of expertise is so
novel and technical that it has not been considered before. This fact should
not be used to exclude such evidence when in reality it could have an important
bearing on the facts in issue.
·
There may also be difficulties in determining the appropriate level of
‘general acceptance’ and what constitutes a considerable body of expert
recognition for the purpose of the test.
·
It has also been argued that this test tends to prohibit the admission
of new research undertaken specifically for the purposes of litigation which
can lead to novel but reliable evidence being excluded.[501]
·
An automatic prohibition on evidence not meeting the appropriate
standards in terms of reputation, as opposed to substance, is not desirable.
2.394
The Commission provisionally recommends that the general acceptance
test, by focusing on the number of experts in the area that recognise the
theory, rather than assessing the subjective merits of the theory itself,
imposes too onerous a burden in terms of its provenance as opposed to its
content to be considered an appropriate test to determine the reliability of
the evidence.
(ii)
Empirical Validation
2.395
An alternative test which could be imposed is one similar to that
propounded in Daubert, namely a test that focuses on the evidence
itself in terms of its underlying methodologies and results to examine its
reliability. Such a test should take the form of a non-exhaustive range of
factors that would be taken into account by the court when assessing the
evidence, general acceptance being just one of these factors.
2.396
The decision in Daubert provided useful guidance as it gave
examples of those factors that can be used to determine reliability. Based on
this decision, and on other guidelines[502]
that have been suggested in relation to this, the principal factors that should
form the basis of any reliability test based on empirical validation include;
1.
Are the principles behind the theory consistent in that its
proponents are in agreement about its constituent elements which would enable
it to be empirically testable and falsifiable?
2.
Have the principles and procedures behind the theory been empirically
tested in that it can be demonstrated by evidence of actual experiences
rather than hypothetical situation?
3.
Are the conclusions reached by the expert backed up by sufficient
supporting evidence and logical based on the principles underlining the
theory?
4.
Has the theory a known or potential rate of error?
5.
Has the theory been subjected to peer review and publication?
6.
Is the theory methodical in the sense that there is agreement
about the correct standards of procedures for using the methodology which
enable it to be duplicated?
7.
Has the theory been generally accepted?
2.397
The trial judge should proceed on the basis that the evidence is
inherently unreliable and then assess the merits of the evidence in terms of
the above factors.
2.398
The trial judge should also have discretion in terms of what factors
should be applied to particular evidence as it is clear that not all evidence,
particularly non scientific evidence, will be conducive to testing by the full
list of criteria above and thus the above factors should be flexible in their
application.
(I)
Advantages
·
The introduction of such a reform would be easily facilitated in
practice as the discretionary rather than binding nature will give the trial
judge considerable leeway and flexibility in terms of deciding on the best way
of assessing the merits of the evidence. This will ensure that the key role of
the trial judge in determining the admissibility of evidence is firmly
consolidated.
·
The test also provides a useful source of guidance for the trial judge
in relation to the key factors that indicate reliability when assessing
avant-garde theories, the benefit of which is immeasurable considering that
such novel theories will undoubtedly be outside the scope knowledge of the
trial judge.
·
Furthermore, it is often not the evidence itself that proves to be
suspect or unreliable, but the methods and processes used to reach the result which
prove to be negligently followed or to be fundamentally flawed.[503]
Requiring the evidence to be empirically validated would prevent the risks of
contamination or errors in evidence being presented to the court as it would
encompass both the substantive nature of the evidence as well as the procedures
and structures involved in its use.
(II)
Disadvantages
·
It is clear that given the vast and unlimited range of subject matters
on which expert testimony can be given, not all areas of expertise will be
conducive to empirical validation, principally those that do not have a
scientific or technical basis.[504] If all evidence was required to satisfy
a definitive list of factors, this would lead to the undesirable result that
certain evidence would be excluded due to a lack of, for example, sufficient
peer review.
·
However, this problem
is easily overcome by adopting the approach taken in Kumho Tyre Co v
Carmichael[505] and recognising that whilst not all validation criteria
can be used to validate non-scientific testimony some still remain relevant, so
the test should be flexible in its application to ensure that the court has a
certain leeway regarding what factors are used to assess the reliability of
particular evidence taking into account whether it relates to scientific or non
scientific area of expertise.
2.399
Based on the foregoing, the Commission believes there are few arguments
that can be made against the introduction of a reliability test based on
empirical validation. The Commission therefore provisionally recommends the
introduction of a judicial guidance note outlining a non-exhaustive and
non-binding list of factors, based on empirical validation, which can be used
to help the court assess the reliability of tendered expert evidence.
2.400
The Commission provisionally recommends the introduction of a
judicial guidance note outlining a non-exhaustive and non-binding list of
factors, based on empirical validation, which can be used to help the court
assess the reliability of tendered expert evidence.
(e)
Effects of a Finding of Unreliability
2.401
The last issue to be considered is the consequences of a judicial
finding that the evidence has not met the required standard of reliability.
Evidence that does not satisfy any of the factors on the checklist should
clearly be automatically excluded from the outset.
2.402
However, in some instances the trial judge may be uncertain about the
validity of the evidence. It could for example have a well researched logical
seemingly sound basis, but due to its relative infancy, it may be lacking in
general acceptance and peer review. In such cases the court may consider it
appropriate to admit the evidence, based on its probative value, whilst giving
a warning to the jury about its potential unreliability or limitations.
2.403
This issue was considered in R v Luttrell and Ors[506] where the
court held that the reliability of lip reading evidence is a matter relevant to
weight rather than admissibility and thus that the evidence was rightly
admitted.
2.404
However, Rose LJ went on to discuss the range of circumstances under
which a judicial warning is appropriate. Although his comments were limited to
the context of lip-reading evidence, they provide useful guidance for the approach
to be taken in similar situations involving other types of evidence:
“We have no doubt that lip reading evidence requires a
warning from the judge as to its limitations and the concomitant risk of error,
not least because it will usually be introduced through an expert who may not
be completely accurate: as we have indicated above, the material before this
court indicates that lip reading evidence will, on occasion, fall significantly
short of perfection. That imperfection does not render the material inadmissible,
for the reasons we have already explained, but it does necessitate a careful
and detailed direction. As with any "special warning", its precise
terms will be fact-dependent, but in most, if not all cases, the judge should
spell out to the jury the risk of mistakes as to the words that the lip reader
believes were spoken; the reasons why the witness may be mistaken; and the way
in which a convincing, authoritative and truthful witness may yet be a mistaken
witness. Furthermore, the judge should deal with the particular strengths and
weaknesses of the material in the instant case, carefully setting out the
evidence, together with the criticisms that can properly be made of it because
of other evidence. The jury should be reminded that the quality of the evidence
will be affected by such matters as the lighting at the scene, the angle of the
view in relation to those speaking, the distances involved, whether anything
interfered with the observation, familiarity on the part of the lip-reader with
the language spoken, the extent of the use of single syllable words, any
awareness on the part of the expert witness of the context of the speech and
whether the probative value of the evidence depends on isolated words or
phrases or the general impact of long passages of conversation. However, as we
have indicated, the precise terms of the direction will depend on the facts of
the case, and the instruction to the jury in this, as in many other areas,
should never be given mechanistically.”
2.405
The Commission
considers that this approach provides a useful insight in the manner in which
this issue of discretion should be approached.
2.406
The Commission provisionally recommends that the court should have the
discretion to determine whether or not evidence that fails to satisfy the
reliability test should be excluded. The Commission also provisionally
recommends that where the extent of the reliability is uncertain, or where the trial
judge feels it appropriate or necessary, he or she can argue that the evidence
be admitted subject to a warning to the jury about its uncertain
reliability.
(6)
Conclusion
2.407
As well as requiring
the evidence to be relevant, reliable and within the scope of matters on which
expert evidence is permitted, a party is also required to demonstrate that the
person seeking to give the evidence is sufficiently qualified to be considered
an expert witness. The way in which the courts assess the status of an expert
is considered in the next chapter.
3
CHAPTER 3 THE
QUALIFIED & IMPARTIAL EXPERT: DUTIES and FUNCTIONS OF EXPERT WITNESSES
A
Introduction
3.01
In Chapter 2 the Commission discussed the circumstances under which the
court will allow a party to adduce expert evidence. In this chapter the
Commission considers the factors that determine who is entitled to give expert
evidence. Part B discusses the factors the court will take into account to
determine whether an individual adduced by a party to act as an expert witness
has sufficient qualifications and experience to enable him to be considered an
expert for the purposes of giving expert testimony.
3.02
Part C examines the principal duties and functions of an expert witness
and also discusses some of the problems that have been identified in the
context of the experts themselves.
B
What is an ‘Expert Witness’?
3.03
As outlined in Chapter 2, the two principal requirements that a party
must satisfy in order to adduce expert evidence are first, that expert evidence
is necessary in the circumstances and second, that the person purporting to
give such evidence is sufficiently skilled in the subject matter in question.
This chapter examines the second of these two requirements.
3.04
However, once it has been held that the subject matter is one on which
expert testimony can be given, it does not necessarily follow that the
individual put forward by the party to give such evidence will be an expert in
the particular subject matter. Equally, although the person may be considered
an expert in the particular field of study, they may in reality have little or
no expertise on the specific issue which is sought to be demonstrated.
(1)
Definition
3.05
Because expert evidence can be given on an unlimited range of subject
matters, the law has struggled to set out a concrete definition of an expert
for the purposes of court proceedings. Different definitions have been
suggested in various jurisdictions, all of which are concerned with a
discernible field of expertise, and sufficient knowledge or experience in this
field, which enable the person to give evidence in court.
(a)
Ireland
3.06
In Ireland, to date no set definition of an expert, statutory or
otherwise, has been adopted, and it can be seen that the courts have adopted a
very broad and flexible approach to what constitutes an ‘expert’ for the
purposes of giving expert evidence. The courts have continuously attempted to
explain the parameters of what constitutes an expert witness, but have resisted
setting out a formal definition.
(i)
Judicial Commentary on Definition of an Expert
3.07
Despite resisting a formal definition, over the centuries there have
been many judicial pronunciations about the exact role and function of the
expert witness in the common law adversarial context in this jurisdiction.
3.08
In a 19th century decision, McFadden v Murdock,[507] Pigot CB confirmed
the general rule permitting expert opinion evidence to be given where this will
assist to explain matters helpful to the jury. In the course of the judgment he
referred to expert witnesses in this context as being:
“…persons of peculiar skills and knowledge on the particular
subject, the testimony of such, as to their opinion and judgment upon the facts
is admissible evidence to enable the jury to come to a correct conclusion.”
3.09
The broad definition given to what constitutes an ‘expert’ was also
alluded to by Pigot CB where he explained that an expert cannot be confined to
someone proficient in a set range of subject matters:
“The subjects to which this kind of evidence is applicable
are not confined to classes and specified professions. It is applicable
wherever peculiar skill and judgment, applied to a particular subject, are
required to explain results, or trace them to their causes.”[508]
3.10
Almost a century later, in AG (Ruddy) v Kenny,[509]
Davitt J expressly mentioned some of the subject matters which the court will
consider to be within the realm of an expert:
“…matters which require special study and experience in order
that a just opinion may be formed, as, for instance, matters of art, science,
medicine, engineering and so forth.”[510]
3.11
However, nowadays the range of subject matters on which expert evidence
can be given has expanded beyond the boundaries of traditional areas of
expertise and an expert can now be found on a subject matter specifically
generated for litigation, for example accident support services.
3.12
More recently, in The People (DPP) v Fox,[511]
in the course of a finding that a Garda Commissioner was entitled to be
considered an expert in drug trafficking, the court defined what it would
consider to be an expert:
“…a person who is well qualified to express a credible
opinion or belief on the subject so much so that the Court is entitled to
regard such opinion and belief as admissible evidence for the purpose of
supplying the Court with information which is outside of the range and
knowledge of the Court”
3.13
In Galvin v Murray,[512]
Murphy J gave careful consideration to this question. He considered that, in
order to give an expert opinion, the witness must be, in the opinion of the
judge, qualified in the subject calling for his specialist knowledge. Thus:
“An expert may be defined as a person whose qualifications or
expertise give an added authority to opinions or statements given or made by
him within his area of expertise.”[513]
(ii)
Legislative Guidance on Definition of an Expert
3.14
As mentioned above, there is no legislative definition of ‘expert’ for
the purpose of giving expert testimony. However, some guidance can be found in
the Rules of the Superior Courts (No. 6) (Disclosure of Reports and
Statements) 1998 (S.I. No. 391 of 1998). The 1998 Rules state that they
apply to expert reports including:
“…report or reports or statement from accountants,
actuaries, architects, dentists, doctors, engineers, occupational therapists,
psychologists, psychiatrists, scientists, or any other expert whatsoever
intended to be called to give evidence in relation to an issue in an action.”
3.15
This highlights that not only may the categories of professionals listed
be considered as experts (if they have the appropriate qualifications or
experience) the court may also accept “any other expert whatsoever” as an
expert witness. This emphasises that the categories are not closed.
(b)
Australia
3.16
In a recent Australian survey of judicial attitudes to expert witnesses,
Freckleton described expert witnesses as “suppliers of informed opinions on
matter beyond the ken of lay finders of fact…Their role is to shed light on
areas that would otherwise not be adequately appreciated or understood.”[514]
3.17
The legislatures in the various Australian jurisdictions have all
adopted their own definition of an ‘expert’ and an ‘expert witness. These
definitions differ but most are just minor variations of the one main
definition; an expert witness is someone who is competent and qualified, based
on their specialist knowledge, to give an opinion to the court.
(i)
The Federal
Court
3.18
The Federal Court Rules of the Federal Court of Australia define an expert
witness as; “a person who is called, or is to be called, by a party to give
opinion evidence, based on the person’s specialised knowledge, based on the
person’s training, study or experience.”[515]
(ii)
The Family Court
3.19
The Family Court definition of an expert and an expert witness set out
in the Family Law Rules 2004 (which were enacted as a result of the
recommendations of a 1999 report by the Australian Law Reform Commission on
Case Management in Family Law Cases) is interesting as it includes
‘independence’ as a characteristic of an expert. An expert is defined as; “an
independent person who has relevant specialised knowledge, based on the
person’s training, study or experience.” An expert witness is defined as “an
expert who has been instructed to give or prepare independent evidence for the
purpose of a case.”[516]
(iii)
New South Wales
3.20
The Uniform Civil Procedure Rules adopted in New South Wales in
2005 also set out a definition of an expert for the purpose of giving expert
testimony.[517] An expert
is defined as “person who has such knowledge or experience of, or in connection
with, that issue, or issues of the character of that issue, that his or her
opinion on that issue would be admissible in evidence.”
3.21
An expert witness is defined separately as “an expert engaged or
appointed for the purpose of: (a) providing an expert’s report for use as
evidence in proceedings or proposed proceedings, or (b) giving opinion evidence
in proceedings or proposed proceedings.”[518]
(iv)
Queensland
3.22
In Queensland, the Uniform Civil Procedure Rules (Qld) adopted in
1999 define an expert as; “a person who would, if called as a witness at the
trial of a proceeding, be qualified to give opinion evidence as an expert
witness in relation to an issue arising in the proceeding.”[519]
(v)
Australian
Capital Territory
3.23
In the Australian Capital Territory the newly introduced Court
Procedure Rules 2006 sets out the rules governing the use of expert
witnesses in court. Rule 1201 sets out what is meant by an expert and an expert
witness for the purposes of the proceedings under these rules.
3.24
An expert is defined extensively as “a person who (a) has specialised
knowledge about matters relevant to an issue arising in the proceeding based on
the person’s training, study or experience; and (b) would, if called as a
witness at the trial of the proceeding, be qualified to give opinion evidence
as an expert witness in relation to the issue.”[520]
3.25
An expert witness is defined under Rule 1201 as “an expert appointed or
engaged to do either or both of the following: (a) to provide a report about
the expert’s opinion for use as evidence in the proceeding; (b) to give opinion
evidence in the proceeding.”[521]
(c)
England
(i)
Judicial Commentary on Definition of an Expert
3.26
As in Ireland, the English courts have resisted a formal definition of
what constitutes an expert for the purposes of giving expert evidence and
deciding on the competency of an individual to be considered an expert remains
at the discretion of the trial judge.
3.27
The main considerations that will be taken into account are the
possession of knowledge of the expertise in question, and an ability to use
that knowledge as a result of training or education in that specialism. During
argument in R v Silverlock[522] Vaughan-Williams J stated that;
“No one should be allowed to give evidence as an expert
unless his profession or course of study gives him more opportunity of judging
than other people.” [523]
(ii)
Legislative Guidance on Definition of an Expert
3.28
Also similarly to Ireland, in England there is no legislative definition
of what constitutes an expert. Existing legislation that does make reference to
experts does so in the most general terms, reflecting the broad indefinable
nature of the concept of an expert for the purpose of court proceedings.
3.29
In civil proceedings, although most of the rules governing expert
evidence have been put on a statutory footing since the introduction of the
Civil Procedure Rules, these rules also refrain from giving a formal definition
of an expert witness. CPR r. 35.2 states that an expert is “an expert who has
been instructed to give or prepare evidence for the purpose of court
proceedings.”[524]
3.30
Likewise in criminal proceedings, Rule 33.1 states that any reference to
an expert for the purpose of the rules “is a reference to a person who is
required to give or prepare expert evidence for the purpose of criminal
proceedings, including evidence required to determine fitness to plead or for
the purpose of sentencing.”[525]
(2)
Necessary Experience and Qualifications
(a)
Broad Definition
Given
3.31
The broad definition given in this jurisdiction to what amounts to an
expert indicate that it is not compulsory for a person to hold formal
qualifications to be an expert, and expert knowledge acquired through
experience, independent study or a hobby will be considered by the courts as
equally valid as academic qualifications once this is sufficient.[526]
3.32
For example in The People (DPP) v Gilligan[527]
the court considered that a Garda commissioner was suitably qualified to be
considered an expert in the practice of drug trafficking as he was;
“…a person with considerable experience in the field…and, in
light of that experience, was in the view of the court a person with a wealth
of knowledge on all aspects of [that field.]
3.33
In The People (DPP) v Fox[528]
it was explained that the value of expert evidence will depend on “the
authority, experience and qualifications of the expert” which would appear to
place emphasis on the necessity for some sort of express manifestation of
expertise, however, it is not expressly stated that formal qualifications are
required.
(b)
No Formal
Qualification Needed
3.34
It has long been recognised that the court is ultimately concerned with
the extent of the expertise, rather than the way in which this expertise was
acquired. In R v Silverlock[529] a
solicitor was allowed give his opinion on a handwriting comparison because,
although he had no formal qualification, he had studied handwriting as a hobby
for 10 years, and this, in the view of the trial judge, sufficiently qualified
him to be an expert in the area. On appeal, Lord Russell stated:
“It is true that the witness who is called upon to give
evidence founded on a comparison of handwritings must be peritus; he
must be skilled in doing so; but we cannot say that he must have become peritus
in the way of his business or in any definite way. The question is, is he
peritus? Is he skilled? Has he adequate knowledge?”[530]
3.35
Therefore whether the expertise stems entirely from practical experience
or from formal study or a mixture of the two is irrelevant once the person can
prove that they have acquired knowledge that gives them an expertise not
possessed by the ordinary person.
3.36
Similarly, whether a person is an expert or not will also largely depend
on whether or not the particular area on which they are an authority is one
which is considered by the courts to be outside of the scope of the finder of
fact.[531] As Smith J
stated in Carter v Boehm:[532]
“…the opinion of witnesses possessing peculiar skill is
admissible whenever the subject-matter of inquiry is such that inexperienced
persons are unlikely to prove capable of forming a correct judgment upon it
without such assistance, in other words, when it so far partakes of the nature
of a science as to require a course of previous habit, or study, in order to
the attainment of a knowledge of it.”
(c)
Ad-Hoc Experts
3.37
However, expertise acquired through practical experience qualifies an
individual to express an opinion only on the specific issue which is sought to
be proved, and proving this is more difficult than where formal qualifications
are available to overtly demonstrate the area of expertise. In Clark v Ryan,[533]
the leading Australian case on this issue, the plaintiff sought to introduce an
expert witness to testify about the reasons for the defendant’s articulated
vehicle ‘jack-knifing’ across the road.
3.38
The expert did not have any formal qualifications on this subject matter
but he argued he was qualified to give expert evidence as he had 50 years
experience of engineering problems in Australia, and over a great number of
years had been engaged in investigating road accidents for insurance companies
and others and in assessing losses.[534]
3.39
The majority of the court held the evidence to be inadmissible. Dixon J
reasoned that the knowledge gained by the witness through his experience did
not qualify him to express an expert opinion on the behaviour of articulated
vehicles under certain circumstances. He stated:
“If it had been desired to prove how in fact semi-trailers of
the kind driven by the defendant Clark do in practice behave, perhaps a witness
or witnesses experienced in their actual use might have given admissible
evidence, not of opinion, but of the fact. But Mr. Foster Joy did not possess
that experience. If it had been desired to give technical evidence of the
physics involved and of any relevant opinions deduced therefrom, possibly that
might have been done by a qualified witness although one may doubt how
intelligible to the jury the evidence would have been and what useful purpose
it would have served. But it certainly does not appear that Mr. Foster Joy was
qualified to give such testimony and in fact he did not essay to do so. What in
truth occurred was to use the witness to argue the plaintiff's case and present
it more vividly and cogently before the jury.”[535]
3.40
The decision in Clark highlights the fact that in order for a
person to be considered an expert witness, the opinion expressed must form a
direct part of the subject matter of the special knowledge gained by the
person’s qualifications or experience.
3.41
Furthermore, a person who has only practical experience must abstain
from attempting to give a scientific or technical explanation and is confined
to giving an opinion on the extent of their experience. Therefore in the
Australian decision R v Bjordal[536] the court held the evidence of a police officer on the
likely speed of the defendant’s vehicle to be inadmissible as the officer had
based his calculations about the likely speed on a scientific formula that he
had adjusted. The court held that the officer lacked the expertise to adjust
the formula and was therefore giving an opinion outside of the range of his
area of expertise.
3.42
However, where a witness of fact, such as a police officer called to the
scene of accident, was shown to have several years of experience in the police
traffic division, had attended numerous fatal road accidents, and had attended
courses in accident investigation, he may be entitled to give expert evidence
about the issues in the case as well as being a witness of fact.[537]
3.43
Although rarely challenged in this jurisdiction, the case law from other
jurisdictions would indicate that experts who have gained their specialist
knowledge through practical experience, called ‘ad-hoc experts’[538] or ‘connoisseur experts’[539]
would be allowed to give expert evidence here once the issue is within their
range of experience and is directly related to the issues in the case.
3.44
In Ireland, the Safety, Health and Welfare at Work Act 2005 provides
that a ‘competent’ person must be appointed to fulfil the roles set out under
the statutory provisions with the aim of promoting health and safety in the
workplace. Section 2(2) of the 2005 Act states:
“(a) For the purposes of the relevant statutory provisions, a
person is deemed to be a competent person where, having regard to the task he
or she is required to perform and taking account of the size or hazards (or
both of them) of the undertaking or establishment in which he or she undertakes
work, the person possesses sufficient training, experience and knowledge
appropriate to the nature of the work to be undertaken.
(b) Account shall be taken, as appropriate, for the purposes
of paragraph (a) of the framework of qualifications referred to in the
Qualifications (Education and Training) Act 1999.”
3.45
This section places a considerable emphasis on both skills and
knowledge, and the reference in section 2(2)(a) to “sufficient training,
experience and knowledge” [emphasis added] would appear to place a
higher onus on an individual under this Act than is placed on a person
purporting to act as an expert witness.
3.46
It could be argued that imposing a requirement on each expert to
demonstrate formal academic qualifications along with substantial practical
experience would be unworkable in practice, taking into account the unlimited
range of subject matters on which an expert may be asked to testify, and the
strong possibility that academic qualifications on such issues may not exist.
In reality, it is submitted, most if not all experts who are hired by parties
to give expert testimony will possess some formal qualifications in their field
of expertise.
3.47
Imposing a requirement for formal qualifications, therefore, may not
prove a significant barrier to entry. However, it must be admitted that many
experts giving expert testimony, particularly on technical or mathematical
issues, are academics. Thus, imposing a requirement for academic qualifications
and practical experience may significantly limit those available to
testify. Indeed, if the academic qualifications are extensive, imposing an
additional requirement for practical experience, in some areas at least may be
unnecessary.
(d)
Expertise in the
actual issue involved in the case
3.48
Nevertheless, it can be seen nowadays that professional qualifications
and accreditations frequently have a significant impact on the weight and
admissibility of expert testimony. Indeed, in the wake of the development of an
expert witness ‘industry,’ with professionals in every field imaginable willing
to tender their services to the court, it is unlikely that knowledge merely
acquired through a hobby will be considered as sufficient to render a person
competent to be an expert.
3.49
Proving or acquiring expert status is in reality made much easier by the
presence of academic or other qualifications, or professional or other
experience, which gives the individual knowledge or experience beyond that
which the ordinary lay person would possess.[540]
Furthermore, as pointed out by Heald LJ:
“However, even though a person may possess significant
academic qualifications, or have lengthy experience in a particular profession
that would indicate expert status on the face of it, this does not necessarily
mean that the person is automatically an expert on the particular issue which he
seeks to prove.”
[541]
3.50
An example of the difference between professional or academic expertise
and actual expertise in the issue in question is amply demonstrable by the
English case Hawkes v London Borough of Southwark.[542]
Here, Aldous LJ rejected the evidence of the plaintiff’s expert witness
because, although he undoubtedly had extensive academic qualifications that
went beyond that of the lay person, the actual issue in question was one which
would not have been proven by this expertise and in this case the issue was in
fact within the knowledge and experience of the ordinary person. He explained:
“Mr Dawson was cross-examined as to his qualifications to
give evidence as an expert. He held a BSc degree in Mechanical Engineering and
was a chartered member of the Institute of Mechanical Engineers. He had, over a
period of about 3½ years, investigated what he described as numerous manual
handling accidents and prepared expert's reports and given evidence on those
accidents. He had not attempted to carry a door up the stairs and gave no
evidence that he had taken part in any manual handling operations of the type
under consideration in this case. That being so it must have been apparent, or
should have been, to everyone at the trial that it was questionable as to
whether Mr Dawson had the relevant expertise to give expert evidence relevant
to any issue in the case. Further, it was questionable as to whether any expert
evidence was necessary or admissible.”[543]
Further on he concluded:
“I do not believe that Mr Dawson had established that he was
qualified to give expert evidence of the type he did. He had a degree in Mechanical
Engineering and over 3½ years investigated and given evidence on manual
handling accidents. Whether those cases had any similarity to the one involved
in this case is not clear. A person who investigates accidents does not
necessarily acquire expertise in the reasons why accidents occur. Policemen
investigate large numbers of road accidents. That would not necessarily give
them sufficient knowledge to act as experts in road accident cases. No doubt
experience built up over many years can provide sufficient expertise to qualify
a person to give evidence as an expert, but that is not this case as Mr Dawson
has only been investigating accidents for about 3½ years. The fact that a
person has expertise in aspects of manual handling cannot qualify him as an
expert in all forms of manual handling. Manoeuvring a door upstairs is very
different from lifting a sack. In my view Mr Dawson established some expertise
as a mechanical engineer. His evidence did not establish that he was qualified
to give expert evidence on the difficulties and risks of manoeuvring a door
upstairs. He gave no evidence as to what was the usual practice. I believe
therefore that his opinion evidence was inadmissible. Mr Dawson's evidence
appears to have prolonged the trial. It provoked Counsel for the Defendants to
cross-examine him on his opinion, thereby lengthening and complicating what was
a simple case.”[544]
3.51
Therefore, an expert will have to be able to demonstrate to the court that
he is not only an expert in the particular field, but that he also has expert
knowledge and or considerable experience on the particular issue which is the
subject matter of the case. This makes expert status a highly subjective
concept and one which will undoubtedly depend on the specific facts and issues
of each case. A keen understanding that having a lengthy curriculum vitae will
not grant automatic expert status was succinctly summarised by Heald LJ:
“Personal and professional qualification and experience are
useful benchmarks provided that long service does not mask an ignorance of and
unwillingness to face and absorb new ideas and analytical methods. Length of
experience needs to be qualified by the professional and geographical areas in
which it has been gained.”
(e)
Contemporary
Expertise
3.52
A final point to note is that it is self evident that continued
participation or research in the expert’s profession or field is essential to
maintain an awareness of changes and developments in the subject matter. An
expert who becomes a full time expert may therefore be liable to become out of
touch with the industry.
3.53
One way of preventing this from occurring is to introduce a requirement
that only persons who are involved either academically or professionally with
the subject matter at the time they are being put forward as an expert witness
should be allowed to be considered as such.
3.54
Such a requirement would help to ensure that the opinion given is coming
from someone who is up to date with the industry and therefore can give a well
researched contemporary opinion.
3.55
On the other hand, such a requirement could be considered excessively
onerous and could have the affect of disproportionately excluding a large
number of experts, who would otherwise be more than qualified, from giving
expert evidence.
3.56
For example, it is often the case that retired professionals will offer
their services as expert witnesses in their area of expertise as a way of
having an extra income on retirement. The length of experience such individuals
have gained could mean they have very valuable expert opinion evidence to offer
the court but they would be prevented from doing so by the introduction of such
a requirement.
3.57
The Commission can now turn to set out the provisional recommendations
it has reached on this area, and in respect of which it seeks submissions and
views.
(f)
Provisional recommendations and views
3.58
The Commission
provisionally recommends the adoption of a definition of the term “expert” for
the purposes of giving expert testimony and invites submissions on the form of
wording that would be appropriate for such a definition.
3.59
The Commission invites submissions as to whether experience-only based
knowledge should suffice for a witness to be entitled to give expert evidence
or whether formal, professional qualifications, study or training is necessary.
3.60
The Commission provisionally recommends that a person seeking to act
as an expert witness need not be actively involved in the field of expertise at
the time of the giving of expert evidence.
3.61
The Commission provisionally recommends that, when assessing
the competency of an individual to be considered an expert, considerable
account be taken of the length of time they have spent studying or practising
in the particular area, as well as, in the case of retired people and others no
longer practising, the length of time they have spent away from the field.
(3)
Court Procedure for Proving Expertise
(a)
Judicial
Decision
3.62
Deciding if a person is competent to be considered an expert is a matter
for the presiding judge, who will have to be satisfied that the expert witness
possesses special knowledge and experience going beyond that of the trier of
fact.[545]
3.63
The party calling the expert bears the burden of proving the expert’s
qualifications and credentials as an expert in the field in question. This is
normally done by way of preliminary questions during the examination-in-chief
stage of the proceedings after the witness has taken an oath.[546]
3.64
If there is a challenge to the witness’s expertise, this can be proved
by the expert by testifying about his qualifications and/or experience. In the
absence of a rebuttal of expertise, the judge will accept the witness’s
testimony of his qualifications or experience as prima facie evidence of his
expertise and primary evidence of this will not be required.[547]
3.65
It is submitted that it may prove confusing for a jury to hear the
expert evidence of a witness and for the evidence then to be ruled inadmissible
at a later stage in the trial. The merits of introducing a preliminary hearing
(voir dire) for assessing the expert witness’s qualifications and experience
should be considered. This is discussed in greater detail in Chapter 5, below.
(b)
Cross
Examination
3.66
In general terms, it can be said that the actual expertise of an expert
witness is not likely to be challenged for the simple reason that the expert is
well known to legal counsel and to the court. In a minority of cases, expertise
may be robustly challenged as a matter of the admissibility of the evidence,
but this is not common. It is more common that the actual substance of the
evidence given is challenged in terms of the weight to be attached to it, as
opposed to its admissibility.[548]
In this respect, the main way in which a witness’s expertise is determined in
our adversarial system is through examination and (sometimes robust) cross
examination in court. A witness may be subject to extensive questioning by the
opposing party (and, on occasion, by the judge) about the extent of their expertise
and their professional ability to express a valid expert opinion on the issue
sought to be given in evidence.
3.67
For example in the infamous 1931 English case R v Rouse,[549]
the first question put to the defence’s expert engineer by the prosecuting
counsel was “What is the coefficient for the expansion of brass?” The exchange
between the two continued:
“Q. I asked you: What is the coefficient of the expansion of
brass? Do you know what it means? A. Put that way, probably I do not. Q. You
are an engineer? A. I dare say I am. Q. Let me understand what you are. You are
not a doctor? A. No. Q. Not a crime investigator? A. No. Q. Nor an amateur
detective? A. No. Q. But an engineer? A. Yes. Q. What is the coefficient of the
expansion of brass? You do not know? A. No, not put that way.”[550]
3.68
In this case, the witness’s professional experience more than enabled
him to testify on the technical issue for which he had been hired, but this
method of cross-examination had the effect of seriously undermining his
credibility. Although the question was later criticised as unfair, in that it
was unrealistic to ask an expert to know the exact technical answer to this question
off the top of his head, the expert witness should have been prepared to
respond to such a question by revealing that he understood the question and
explaining why it is impossible to give a straightforward answer and then going
on to reveal how the answer should be determined.
3.69
It can be seen from the above exchange that one of the consequences of
having such a broad definition of the term ‘expert’ is that many professionals
who offer their services in court do not fully appreciate the extent of the
role of the expert witness. As explained by a leading consultant in this area
in Ireland:
“They don’t understand that the first thing a good
cross-examining barrister is going to do is to attack their credibility. They
take things personally. They often don’t realise that once they put themselves
out there as an expert they stand to have their expertise and credibility
challenged – that’s how the system is supposed to work.”[551]
(c)
Requirement of
Oratorical Ability
3.70
An expert witness is therefore someone not only who has the necessary
knowledge and expertise in the subject matter in question to give a valid
opinion, but also who has the necessary explanatory skills to demonstrate and
explain this expertise before a judge and jury, and the ability to withstand
robust cross examination. As elucidated by Jacob L.J. in Rockwater v Technip
France SA & Ors:[552]
“Their function is to educate the court in the technology –
they come as teachers, as makers of the mantle for the court to don. For that
purpose it does not matter whether they do or do not approximate to the skilled
man. What matters is how good they are at explaining things.”
3.71
The Guidance Protocol designed to supplement the Civil Procedure Rules
(CPR) in England shows an understanding of the extent of the requisite elements
to be an expert witness.[553] This Protocol significantly develops the CPR r. 35
definition of an expert, and provides useful guidance about the full extent of
the role and function of an expert. It sets out that prior to appointment of an
expert in civil litigation the following must be established:
·
That they have the appropriate expertise and experience
·
That they are familiar with the general duties of an expert
·
That they produce a report, deal with questions and have discussions
with other experts within a reasonable time and at a cost proportionate to the
matters in issue;
·
A description of the work required
·
Whether they are available to attend the trial, if attendance is
required; and
·
There is no potential conflict of interest.[554]
3.72
Our adversarial system assumes that if there is any shortfall in the
witness’ expertise, it will be exposed at examination in chief or cross
examination stages and the witness may be prohibited from giving expert
evidence or at least their opinion will be considerably undermined and limited
weight will attach to such opinion.
3.73
However, although examination in chief and cross examination will be
effective in weeding out potential charlatans in the majority of cases, it may
prove difficult on occasion to determine or quantify the extent of the witness’
purported expertise, particularly where specialist knowledge is be required in
relation to an area which is not governed by some form of professional
accreditation, study or training.
3.74
The potential difficulties with assessing expertise are clear when one
considers that the judge is ultimately given the task of evaluating the skill
and ability of the witness to give evidence on a subject, where the reason such
evidence is being admitted is because the subject is outside the range of
knowledge of the judge.
(4)
Relationship between an Expert Witness & Instructing
Party
3.75
The Irish courts have held that a person is not entitled to give expert
evidence where he or she is one of the parties to the case.[555]
However, it has been held on a number of occasions that a person can be called
as an expert witness if they have a pre-existing relationship with one of the
parties, for example if they are in their employment.
3.76
The Supreme Court in Galvin v Murray[556] reversed the decision of Johnston J in the High Court where
he had held that where a County Council sought to rely on engineers engaged by
it for the purposes of litigation, they should not be considered to be expert
witnesses. At issue was O.39, rules 45 and 46 of the Rules of the
Superior Courts 1986 as inserted by the Rules of the Superior Courts (No
6) (Disclosure of Reports and Statements) 1998 which provide that all
documents prepared by (inter alia) an expert for the purpose of giving expert
evidence may be made the subject of a discovery order. In this case, the County
Council argued that the evidence given by an engineering firm who were employed
by the Council was not covered by the discovery rules as the report of the
engineers was submitted in their capacity as employees of the Council and not
as experts. Murphy J in the Supreme Court accepted that the report of an expert
who is also an employee or agent of a party may contain observations beyond
that which an independent expert might have made which may act to the detriment
of that party, but reasoned that it remained open to that party to engage
another expert witness instead of calling its employees or agents.
3.77
Murphy J went on to hold that while the fact that the witness was employed
or engaged by one of the parties may affect his independence, this should be
taken into account when assessing the weight to be attached to his expert
evidence, and should not affect his status as an expert. In support of this
view, he approved the English decision Shell & Pensions v Fell
Frischmann[557]
where it had been pointed out that the English rules pertaining to expert
evidence, like the Irish rules, “refer to “expert evidence” and not to
“evidence given by independent experts.”
3.78
In Shell it was held that the rules relating to expert
evidence “apply generally to independent experts, to so called ‘in-house’
experts and to parties themselves,”[558] which Murphy J considered was the correct approach to adopt.[559]
3.79
In England, the same approach was taken in Field v Leeds City Council[560] where it
was held that the mere fact of employment did not disqualify the employee from
acting as an expert witness for his employer, as long as the employee was able
to prove that he had the relevant expertise in an area in issue and that he was
aware of his overriding duty to the court, not to his employer.[561]
However, it was also stressed by May LJ that the fact that the expert was in
the employment of one of the parties may affect the weight to be afforded to
his opinion.[562]
3.80
The opposite view appears to have been taken in the later English case Liverpool
Roman Catholic Archdiocesan Trust v Goldberg.[563]
Here, Evans-Lombe J held inadmissible the evidence of an expert tendered on
behalf of the defendant, due to the fact that the defendant had had a close
personal and professional relationship with the expert for several years. He
held that the expert should not be entitled to give evidence on public policy
grounds in that that justice should not only be done but should be seen to be
done:[564]
“…where it is demonstrated that there exists a relationship
between the proposed expert and the party calling him which a reasonable
observer might think was capable of affecting the views of the expert so as to
make them unduly favourable to that party, his evidence should not be admitted,
however unbiased the conclusions of the expert might probably be. The question
is one of fact, namely, the extent and nature of the relationship between the
proposed witness and the party.”[565]
3.81
However, this approach was held to be incorrect by the Court of Appeal
in R (Factortame & Ors) v Secretary of State for Transport.[566]
Lord Phillips MR reasoned that such an approach would have the result of
automatically excluding any employee from giving evidence on behalf of an
employer.[567]
3.82
He held that while it is desirable that an expert witness have no actual
or apparent interest in the outcome of the proceedings, such an interest is not
an automatic reason for exclusion from giving expert evidence,[568]
thus re-establishing the earlier, and it is submitted, more desirable, approach
to admitting experts who have a pre-existing relationship with one of the
parties.
3.83
Factortame was also approved in Armchair Passenger Transport
Ltd v Helical Bar PLC[569]
and Nelson J outlined the reasons for this approach:
“It is always desirable, as the Court of Appeal said in Factortame
that an expert should have no actual or apparent interest in the outcome of the
proceedings. Expert witnesses should be chosen accordingly so that the
difficulties which have arisen in this case can be avoided. I recognise however
that there are fields in which only a limited number of experts are available
and that those who are pre-eminent may have direct work experience in the field
or with competitors which might at first sight be thought to threaten their
independence. Such cases should be rare but when they arise should be dealt
with in accordance with the principles in Factortame and Field.”[570]
3.84
This highlights that acquiring ‘expert witness’ status does not require
the witness to be independent from the parties. The difficulties posed by an
absolute exclusion on experts who have a pre-existing relationship with one of
the parties become clear when applied in the criminal context, as many of the
forensic experts that may be called to give evidence will have been employed by
the state.[571]
3.85
However, as will be discussed below, there is nevertheless a duty on the
expert to give evidence in an independent and impartial manner. As Head LJ
stated:
“The expert witness should never be a party’s advocate but a
person who, having understood the parties’ relevant allegations, can see
whether they correctly define the issues to which his expertise is to be
directed and – pinpointing any discrepancies – can put his expertise
impartially at the disposition of the judge to assist him to perform his task
of rightly deciding an issue before him.”[572]
(5)
Conclusion
3.86
The above discussion highlights that it can be occasionally difficult to
determine if a person is an ‘expert’ based on their experience or
qualifications, or whether the issue they purport to be an expert on is
considered a reliable body of specialist knowledge outside of the range of
knowledge of the finder of fact. The judge is given the task of assessing
whether or not a person is an expert, but cross examination is also
instrumental in revealing potential failings in an expert’s knowledge and
expertise.
C
Principal Recognised Duties of Expert Witnesses
(1)
No
Definitive List of Duties in Ireland
3.87
In Ireland, in The People (DPP) v Fox[573]
the Special Criminal Court approved Lord President Cooper’s definition of the overriding
function of an expert witness, as set down in Davie v Edinburgh Corporation
Magistrate:[574]
“Their duty is to furnish the judge or jury with the
necessary scientific criteria for testing the accuracy of their conclusions so
as to enable the judge or jury to form their own independent judgment by the
application of these criteria to the facts proven in evidence.”[575]
3.88
In this jurisdiction however there has been little judicial or
legislative direction to date for expert witnesses about the extent of their
role, function and duties. In preparing this Consultation Paper, it has been
indicated to the Commission that many expert witnesses have learned about their
role and duties through ad hoc advice from previous experts, lawyers, and from
the general trial process. This may not lead to a full understanding of what
the role of the expert witness entails.
3.89
It has been suggested to the Commission that some experts experienced
difficulty in obtaining full and accurate instructions. It may, for
example, be understandably difficult for an instructing lawyer to give
appropriate instructions where a complex area of expertise is at issue. It has
been suggested to the Commission that some experts may see their role as being
an advocate to the instructing party, rather than as owing a duty to the court.
3.90
Similar sentiments have been expressed by several judges who have
experience in receiving expert evidence. According to Barr J:
“They [expert witnesses] are rarely dishonest or deliberately
unfair, but they seem to lack a true understanding of their function, i.e., to
assist the court in arriving at the truth by providing a skilled expert assessment,
which is objective and fair, of matters requiring a specialised appreciation of
the particular problem at issue.”[576]
(2)
The
Ikerian Reefer case
3.91
In England, prior to the introduction of the Civil Procedure Rules
1998, made under the Civil Procedure Act 1997 (which followed Lord
Woolf’s Access to Justice Reports), the authoritative judgment on the
conduct and duties of experts was National Justice Compania Naviera SA v
Prudential Assurance Co Ltd (The Ikerian Reefer),[577]
in which Cresswell J assembled the duties and responsibilities applicable to
expert witnesses that had been recognised over the years:[578]
“The duties and responsibilities
of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be,
the independent product of the expert uninfluenced as to form or content by the
exigencies of litigation (Per Lord Wilberforce Whitehouse v Jordan [1981] 1 W.L.R.
246 at p. 256).
2. An expert witness should provide independent assistance to the Court by way
of objective unbiased opinion in relation to matters within his expertise (see Polivitte
Ltd v Commercial Union Assurance Co. Plc [1987] 1 Lloyd's Rep. 379 at p. 386 per Mr.
Justice Garland and Re J, [1990] F.C.R. 193
per Mr. Justice Cazalet). An expert witness in the High Court should never
assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his
opinion is based. He should not omit to consider material facts which could
detract from his concluded opinion (Re J sup.).
4. An expert witness should make it clear when a particular question or issue
falls outside his expertise.
5. If an expert's opinion is not properly researched because he considers that
insufficient data is available, then this must be stated with an indication
that the opinion is no more than a provisional one (Re J sup.). In cases
where an expert witness who has prepared a report could not assert that the
report contained the truth, the whole truth and nothing but the truth without
some qualification, that qualification should be stated in the report (Derby
& Co Ltd and Others v Weldon and Others, The Times, Nov. 9, 1990 per Lord Justice Staughton).
6. If, after exchange of reports, an expert witness changes his view on a
material matter having read the other side's expert's report or for any other
reason, such change of view should be communicated (through legal
representatives) to the other side without delay and when appropriate to the
Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses,
measurements, survey reports or other similar documents, these must be provided
to the opposite party at the same time as the exchange of reports (see 15.5 of
the Guide to Commercial Court Practice).”
3.92
Although this summary has not been expressly cited with approval in
Ireland, the judgment remains the seminal decision on the duties of expert
witnesses in many common law jurisdictions. It has been cited and endorsed in
numerous cases and academic works on the topic of expert witnesses in several
common law jurisdictions, and has formed the basis for practice directions for expert
witnesses in England and Australia.
3.93
As already mentioned, in this jurisdiction there has been little
legislative or judicial guidance about the applicable duties owed by expert
witnesses in this jurisdiction. In contrast, other jurisdictions have taken a
number of different approaches when it comes to outlining the extent of the
duties of an expert witness.
(3)
Summary
of Main Recognised Duties
3.94
Prior to summarising the approaches taken by the various bodies and the
different jurisdictions, it may be worthwhile to summarise some of the
principle duties and obligations that have repeatedly been identified as
forming an inseparable part of the expert witness’s role, in an effort to
determine what the minimum contents should be of any code of conduct or
practice direction for expert witnesses in this jurisdiction.
3.95
There is a strong argument to be made that these duties, or at least a
large number of them, should be set down in some sort of normative framework in
this jurisdiction. Even if this does not have the weight of a statute or
Statutory Instrument, it may be useful to create some sort of Practice
Direction or even Guidance Leaflet that would provide guidance for expert
witnesses about the extent of their role and obligations.
3.96
The principal duties which should form part of any such Code of Guidance
will now be set out, along with a discussion about how they might fit into the
current Irish legal framework.
(a)
Role and
Function of Expert Witness
3.97
The main role and function of the expert is “to furnish the judge or
jury with the necessary scientific criteria for testing the accuracy of their
conclusions, so as to enable the judge or jury to form their own independent
judgment by the application of these criteria to facts provided in evidence.”[579]
3.98
This description of the role and function of the expert provides a
useful starting point on which to discuss the necessary duties which an expert
must obey in order to correctly and effectively carry out this function.
(b)
Overriding Duty
to the Court
3.99
The expert owes a paramount duty to assist the court by providing
independent and unbiased opinion on matters within his own expertise which will
enable them to reach their decision, and an accompanying duty to bear this
overriding obligation in mind when giving evidence.[580]
3.100
Indeed, it has been recognised as far back as the mid 19th
century in this jurisdiction that while an expert is retained and remunerated
by a party to an action, in the words of Crampton J in R v O'Connell[581] “he has a
prior and perpetual retainer on behalf of truth and justice.”[582]
Therefore, the demands of Justice must be placed above any particular personal
or party interest that the expert may have.[583]
3.101
Setting out an express overriding duty to the court seems to have
occurred across the board in all jurisdictions in any code of guidance that has
been created for experts. The aim of such an express requirement is to firmly
implant it into the expert’s mind that their function is the provision of
unbiased information to the court, and not to provide a one-sided opinion
preferred by the instructing party. In this way the ‘overriding duty’ can be
interpreted as meaning that the duty owed to the party can never supersede the
duty owed to the court.
3.102
However, Edmond discusses the potential impact of the imposition of an
explicit duty and argues that such a reform is unlikely to make much difference
to the practice and culture of expert witnessing.[584]
He argues that experts are already under a duty to tell the truth in court as a
result of swearing the oath, so “it does not follow that clarifying the duty
will produce more objective evidence….[and] expecting the imposition of
an additional obligation to have manifest effects on expert practice
might seem a little optimistic.”[585]
3.103
Furthermore, the legal attribution of duties may come into conflict with
contractual duties that may be owed to the instructing party in relation to
priority of obligations, particularly where the potential expert is in a
pre-existing, pre-litigation, contractual arrangement with one of the parties.
3.104
However, it is submitted that the potential significance of the
introduction of an overriding duty far outweighs the arguments for
non-inclusion. Edmond does admit that such a duty may have such effects as
encouraging experts to divulge more information or structure their reports
differently.[586]
3.105
Therefore it is submitted that the introduction of an express, legally
binding paramount duty to the court is very worthy of consideration, even if it
goes no further than to clarify in the expert’s mind the focus of their role to
give independent, objective information to the court.
(c)
Duty to Give
Well-Balanced, Well-Reasoned & Honestly Held Opinion
3.106
When experts are giving their expert opinion, they are under a duty to
ascertain all relevant facts and all essential information of the case,
including those facts which may detract from their opinion. They must then
ensure that the opinion given is clear, accurate, unbiased, and contains all
essential information such as the expert’s opinion, the material he based this
opinion on,[587] whether or
not this information supports the proposition he is being asked to put forward
or not, and his thought processes in coming to this opinion.
3.107
This duty also involves a requirement to ensure that any opinion given
is genuinely held and, where practicable, is reasonable. The expert is also
expected to disclose whether or not any assumptions have been made in the
opinion, and any data limitations or shortcomings which may affect the result
of the opinion, and to inform the court about a change of opinion or when
unable to give a definitive opinion on a matter.[588]
3.108
A number of cases in this jurisdiction, which are discussed below, have
examined the calibre of expert evidence and what standard of expertise will be
required. It is argued therein that it is pointless in recruiting a
professional witness if their evidence does not demonstrate expertise once
critically examined.
3.109
Therefore there is a duty on expert witnesses to ensure their opinion is
thoroughly researched, taking into account all relevant theories and
developments in the area, so that all expert knowledge possible is brought
before the court.
3.110
In MS v DPP[589]
McCracken J. made reference to the duty of an expert witness to take all
efforts to create full and informed expert report, containing all relevant
facts, even those which do not support the opinion of the expert, when he
stated emphatically;
“It is my strongly held view that where a witness purports to
give evidence in a professional capacity as an expert witness, he owes a duty
to ascertain all the surrounding facts and give that evidence in the context of
those facts, whether they support the proposition he is being asked to put
forward or not.”
3.111
The necessity to place all relevant information before the court, and
the consequences of a failure to do so, were also emphasised in this
jurisdiction in The People (DPP) v Allen.[590] Here, the appellant argued that the expert witness, a
forensic scientist, had not presented a full and complete summary of the
statistical chances of the DNA evidence in question being that of the
appellant.
3.112
The Court of Criminal Appeal emphasised that as DNA evidence is a
relatively recent technique, and is an issue in which the jury are likely to be
entirely reliant on expert evidence, it was likely that the jury could come to
the conclusion that the evidence is infallible, thus placing a high onus on the
expert to explain that this is not the case.[591]
3.113
The court proceeded to allow the appeal on the grounds that the expert
had failed to elicit complete statistics concerning DNA comparisons between
brothers, a failure which had the potential to mislead or confuse the jury. It
was reiterated that “the real problem in this case is not the evidence which
[the expert] gave, but rather the evidence which she did not,” [592] which serves to clearly stress again
the importance of the expert disclosing all relevant and surrounding facts
involved in the particular case.
3.114
The necessity to give a well informed opinion backed up by scientific
reasoning was also stressed in The People (DPP) v Fox.[593]
Here, the prosecution sought to rely on the evidence of an expert on
handwriting to prove that it was the accused’s signature on a document in
issue. The Court rejected this evidence by finding that the evidence in
question was not backed by any scientific criteria which would have enabled the
finder of fact to test the accuracy of the expert’s conclusions.
3.115
It was pointed out that it was common practice when giving expert
evidence of handwriting to give the similarities and dissimilarities of the
writing which the expert relies on in evidence and this was not done here.
Similarly, the expert was criticised for his sole reliance on lower case
writing without giving an explanation for doing so. The Court approved an
extract from the Scottish case Davie v Edinburgh Corporation Magistrate:[594]
“In particular the bare ipso dixit of a scientist, however
eminent, upon the issue in controversy will normally carry little weight for it
cannot be tested by cross-examination or independently appraised and the
parties have invoked the decision of a judicial tribunal and not an oracular
pronouncement by an expert.”
3.116
Similar emphasis has been placed on the need for the opinion to be
sufficiently backed up with supporting evidence in England. As stated by Jacob
LJ in Routestone v Minories Finance:[595]
“What really matters in most cases are the reasons given for
the opinion. As a practical matter a well constructed expert's report
containing opinion evidence sets out the opinion and the reasons for it. If the
reasons stand up, the opinion does, if not, not.”
3.117
The English case R v Clark (Sally) [596] is also a good example of the potential onerous
consequences of a failure to disclosure of all relevant information. Here, Mrs.
Clark was convicted of the murder of her two sons largely as a result of the
testimony of an expert witness, Dr. Williams, who had conducted the post-mortem
on the two babies. After the first post mortem Dr. Williams concluded that the
baby had died from sudden infant death syndrome, yet after the second
post-mortem, reconsidered the case and concluded that both babies had probably
died as a result of shaking.
3.118
However, following the first (unsuccessful) appeal against the conviction
in 2000,[597] records of
microbiological tests that had been taken by Dr. Williams during the
post-mortem of the second baby were discovered which showed the presence of a
particular bacterium making the death consistent with staphylococcal infection,
and thus not from unnatural causes.[598]
The case was referred back to the Court of Appeal on the grounds of newly
discovered evidence and as a result of this, along with inaccurate evidence
from another expert witness, Mrs. Clark was ultimately acquitted, not however,
until she had been wrongly convicted for the murder of her two babies and
served more than three years of her sentence.
(d)
Requirements of
Truth, Independence and Impartiality
3.119
It is the basic duty of every expert to act in such a way so as not to
bring into disrepute the standard of experts. More specifically, the expert
must resist becoming a partisan advocate for the instructing party and always
act justly and independently. In England, the Civil Justice Council’s Protocol
for experts states that a useful test of independence is that the expert would
give the same opinion even if acting for the other side.[599]
Similarly, a willingness to consider and accept the alternative view put
forward by another is vital in an expert; “unqualified loyalty to one’s own
opinion is not acceptable.”[600]
3.120
The duty to remain independent and impartial is given further weight due
to the incorporation of the European Convention on Human Rights (ECHR) in this
jurisdiction by the European Convention on Human Rights Act 2003.[601]
Article 6 of the ECHR provides:
“In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law.”
3.121
Clearly, if the tribunal by which an individual is to be tried is to
remain ‘independent and impartial’ as required by Article 6, those individuals
brought in to assist the court by providing expert evidence must act
independently and impartially at all times. However, the comments of Potter J
in the English case Toth v Jarman[602]
are relevant in this regard: “The requirement in [Article 6 ECHR] for an
“independent and impartial tribunal” relates to the integrity of the tribunal.
It does not mean that an expert witness called by the parties must satisfy the
same test of independence as a judge is required to satisfy.”
3.122
In Payne v Shovlin,[603] Kearns J referred to the introduction in 1999 of the Civil
Procedure Rules in England and Wales and that Lord Woolf’s motivation for their
introduction (as expressed in his Access to Justice reports) was so that
expert witnesses would not be “partisan advocates” but “mutual fact finders or
opinion givers.”
3.123
In JF v DPP[604] Hardiman J referred to the function of experts and the
requirement for independence, and explained that the independence of an expert
is not affected by the adversarial system where both sides introduce their own
experts to advance their own arguments. He sought to explain that the expert
should, and does, retain his independence, when the other side advances their
own expert, and the presence of an expert on the other side does not detract
from the independence of an expert.
“In the ordinary personal injuries case, where the plaintiff
is deploying expert opinion, it will usually be the opinion of a reputable
medical, engineering or actuarial practitioner whose integrity and independence
is rarely if ever in doubt. The employment of an expert on the other side is
not posited on any doubts as to the competence or integrity of the plaintiff’s
expert. It is done to ensure that everything is taken into account, to counter
any unconscious sympathy with one’s own patient or client, to ensure that the
latest techniques and interpretations are brought to bear, to detect any
unwarranted assumptions or conclusions and to test and challenge the other side’s
expert opinion insofar as that can properly be done. Moreover, the mere
presence, actual or anticipated, of an expert on the other side provides a
wholesome discipline. I would entirely reject the view, implicit in certain of
the prosecutor’s submissions, that it is only where there is some reason to
doubt the independence or objectivity of one side’s expert witness that the
other has a right to deploy expertise of its own.”[605]
3.124
Lord Wilberforce’s oft-cited warning about the duty to act with
independence is that “expert evidence presented to the Court should be, and
should be seen to be, the independent product of the expert uninfluenced as to
form or content by the exigencies of litigation.”[606]
However it must be recognised that this provision should not be taken in its
literal sense; it implies that an expert should act in an impartial,
independent and unbiased manner at all times and they should never amend their
report in order to comply with their instructing party’s argument.
3.125
It does not mean that the report should be completely untouched by the
court requirements as in reality an expert’s report will have to be created
with litigation in mind and thus will have to conform to an expected standard
and format. Therefore the content, and not the form, must be uninfluenced by
the exigencies of litigation, and the expert will be expected in their report
to keep the issues in the case in mind and not give more general principles.
3.126
The requirement to be truly independent can raise problems in cases
where the expert is in a pre-existing relationship with one of the parties,
such as an employee. This was referred to by Murphy J in Galvin v Murray[607]
where he acknowledged that the fact that a witness is an employee of one of the
parties may affect his independence, and this is a matter which may affect the
weight to be afforded to his testimony.
3.127
However, Murphy J also pointed out in the course of the judgment that it
remains open to each party to hire an independent expert, and not an employee,
and in any event, any expert coming before the court will have to convince the
finder of fact that their evidence carries considerable weight, an issue that
will depend on the facts and circumstances of each case. Therefore imposing a
legally binding requirement of independence would not appear to be too onerous.
(e)
Duty to Limit
Contentious Issues
3.128
This duty was referred to in England by Tomlin J in Graigola Merthyr
Co Ltd v Swansea Corporation[608]
where he stated:
“…long cases produce evils ... In every case of this kind
there are generally many “irreducible and stubborn facts” upon which agreement
between experts should be possible and in my judgment the expert advisers of
the parties, whether legal or scientific, are under a special duty to the court
in the preparation of such a case to limit in every possible way the
contentious matters of fact to be dealt with at the hearing. That is a duty
which exists notwithstanding that it may not always be easy to discharge.”
3.129
The reasoning behind the imposition of a duty of an expert to narrow
contentious issues was explained by Chadwick J in Stanton v Callaghan:[609]
“It is of importance to the administration of justice, and to
those members of the public who seek access to justice, that trials should take
no longer than is necessary to do justice in the particular case; and that, to
that end, time in court should not be taken up with a consideration of matters
which are not truly in issue. It is in that context that experts are encouraged
to identify, in advance of the trial, those parts of their evidence on which
they are, and those on which they are not, in agreement.”
3.130
The introduction in England of the Civil Procedure Rules 1998 have
consolidated this duty to a certain extent as Rule 35.12 provides that the
court may direct a ‘without prejudice’ discussion between the experts for the
purposes of requiring the experts to reach an agreement on those expert issues
on which they are in agreement, and those issues on which they are not in
agreement.
3.131
It is clearly desirable in the interests of reducing costs and delays in
litigation that the testimony of an expert be limited to that which is
necessary. Where expert witnesses from both sides are not in conflict over a
particular issue on which expertise is needed, it makes sense that both parties
should agree that one expert present the evidence, or that both experts come
together to prepare a joint report on areas of common agreement, so that the
court is not required to hear the same evidence twice. The possible structure
of such a procedure is discussed below in Chapter 5.
(f)
Conflict of
Interest
3.132
A related duty to the requirement to act independently and objectively
at all times is the duty to avoid a conflict of interest. This incorporates an
obligation on the expert to notify the parties and the court where there is any
potential conflict of interest, or where the expert feels that he or she is not
totally independent or does not appear independent, based on the principle that
justice should be both done and seen to be done.
3.133
Part 5 of the Expert Witness Directory of Ireland’s Code of Conduct
outlines the requirement of independence, professional objectivity and
impartiality, and the duty to disclose any circumstances which might influence
the work of the expert. In this part, examples of such circumstances are
expressly mentioned as including;
(a) any directorship or controlling interest in any business
in competition with the client;
(b) any financial or other interest in goods or services
(including software) under dispute;
(c) any personal relationship with any individual involved in
the matter
(d) the existence but not the name of any other client of the
expert with competing interests.[610]
3.134
As mentioned above, as a result of Galvin v Murray,[611]
a person is not prevented from acting as an expert witness simply due to the
fact that they have a pre-existing relationship with one of the parties to the
action. However, nowhere in that judgment is it expressly stated that where an
expert is called who is an employee of one of the parties, or who has some
other pre-existing relationship with one of the parties, they are under a duty
to disclose this pre-existing relationship.
3.135
As it is recognised in Galvin that such a relationship may have
an effect on the appropriate weight to be accorded to such an expert’s
testimony,[612] it is
clearly desirable that such a disclosure be compulsory. Therefore it may be
worthwhile introducing a mandatory requirement that all relevant pre-existing
relationships between potential experts and the parties to an action, or other
relevant individuals or associations bearing relevance on the case, be
disclosed.
3.136
The effect of a conflict of interest on the admissibility of expert
evidence was considered in England in Toth v Jarman.[613] Here, the appellant argued that the medical expert’s
involvement in the ‘Medical Defence Union’ raised a conflict of interest
between his duty of objectivity as an expert and his interest in helping to
defend a member of that organisation that would have caused the judge to accord
lesser weight to or reject his evidence.[614]
3.137
The court held that the presence of a conflict of interest does not
automatically disqualify an expert; the key question, which is to be found in The
Ikerian Reefer,[615] is whether
or not the evidence is independent. The paramount duty owed by the expert to
the court was also reiterated. Potter J however, went on to state:
“However, while the expression of an independent opinion is a
necessary quality of expert evidence, it does not always follow that it is sufficient
condition in itself. Where an expert has a material or significant conflict of
interest, the court is likely to decline to act on his evidence, or indeed to
give permission for his evidence to be adduced. This means it is important that
a party who wishes to call an expert with a potential conflict of interest
should disclose details of that conflict at as early a stage in proceedings as
possible.”[616]
3.138
The court rejected the contention that as no information about a
conflict of interest had been requested at trial, there was no obligation to
disclose it, finding that any material conflict of interest must be disclosed.[617]
Regarding the appropriate time for disclosure of the existence of a possible
conflict of interest, the court found that the appropriate time is when the
report of the expert is first served on the other parties.[618]
3.139
Potter J acknowledged that in the absence of court guidance, it is
understandable that at the time of exchange of reports, a party may realise a
potential conflict of interest but be of the view that it is an immaterial one,
and therefore fail to disclose. However, he went on to hold that in all future
cases where this occurs the party should not take the course of non-disclosure,
as it is for the court, and not the parties to decide whether a conflict of
interest is material or not.[619] This judgment
gives clear guidance to experts regarding the extent of their duties to
disclose any potential conflict of interest. The Irish court would do well to
adopt a similar approach.
(g)
Duty to Keep the
Opinion within the Permitted Scope
3.140
There are four main elements to this duty:
(a) The expert witness is required to
confine his or her opinion to matters outside the scope of the expertise of the
finder of fact.
(b) The expert is required to keep his
or her opinion within the parameters of the area of his or her expertise.
(c) The expert must give an opinion
only on the issues involved in the case in question.
(d) The expert must not take the place
of the finder of fact by reaching conclusions or decisions based on his or her
knowledge, but merely to impart this knowledge to enable the finder of fact to
reach their own conclusions.
3.141
This denotes that in giving evidence on their area of expertise experts
should not profess to give opinions about their entire profession but should
stay within the defined scope of their competence, a requirement which
corresponds with the reason for their appointment.[620]
This requirement also reveals the corollary duty of an expert to state clearly
when an issue falls outside their scope of expertise. It may be appropriate to
require that where necessary, and with the consent of the judge, the expert
must take the advice of another competent expert in order to answer the
question beyond his competence.
3.142
One of most important duties for an expert is to stay within the
permitted scope by not straying into issues that are within the scope of
knowledge of the finder of fact, or that are outside the parameters of his area
of expertise.
3.143
Indeed, rules relating to admissibility of expert evidence, such as the
Ultimate Issue rule, are largely drafted with a view to preventing an expert
from giving any additional evidence than that necessary. The dangers that can
arise where an expert witness purports to opine on an area in which they are
not proficient has been well demonstrated by a number of high profile cases
involving miscarriages of justice.
3.144
For example, in the above-mentioned R v Clark (Sally)[621]
one of the expert witnesses was paediatrician Professor Roy Meadow, who was
adduced by the prosecution to testify about the two sudden and unexpected
deaths of infants from natural causes. Professor Meadow submitted in evidence a
report of a government research team on Sudden Infant Death (SID), which
contained statistics about the chances of SID occurring based on the presence
of certain relevant factors, and concluded that the chance of two SID deaths
occurring in the Clark family was highly remote.
3.145
On appeal this evidence was criticised as misleading and that it
“grossly overstates the chances of two sudden deaths within the same family.”[622]
It was also pointed out that Professor Meadow may have made errors in his
statistical equations.[623] Although
Professor Meadow was a well respected paediatrician, and would no doubt be
considered an expert in that field, the evidence he gave here strayed into the
field of statistics, in which he was unqualified, and which led to his
miscalculation which ultimately resulted in the miscarriage of justice.
Clarke MR commented:
“Professor Meadow is not a statistician and had no relevant
expertise which entitled him to use the statistics in the way he did. I
entirely accept the point that he made a mistake which other non-statisticians
have made but that does not seem to me to exonerate him. He gave the evidence
as part of his expert evidence and, moreover, did so in a colourful way which
might well have been attractive to a jury without expressly disclaiming any
expertise in the field on an issue the only possible relevance of which can
have been (as stated above) to support the prosecution's case that the children
had both died from unnatural causes. He knew that he had no such experience and
should have expressly disclaimed any.”[624]
(h)
Duty to
Instructing Party
3.146
Besides the overriding duty that is owed to the court, the expert also
owes a duty to act with reasonable care towards the instructing party. The
expert is required to clearly consult with the instructing party prior to
appointment to ensure all conditions of appointment are agreed, and that the
area of expertise and the opinion sought are clarified by both parties.
3.147
A question for consideration is the possible inclusion under this
section of a legally binding duty to ensure that, for the protection of his client,
the expert maintains proper insurance for an adequate indemnity, as suggested
in the Code published by Euroexpert.[625]
The extent of the liability owed by an expert towards their instructing party
will be discussed below.
3.148
Furthermore, once an expert has undertaken to act as an expert witness,
they have a duty to carry out the necessary tasks to see out the role, this
includes being available, as far as is reasonably possible, to testify in court
about the contents of an expert report.
3.149
The extent of the duty owed by the expert to the instructing party to
give evidence in court was examined in England in Re N.[626] Here the defendant, a forensic medical examiner, was hired
as an expert witness on behalf of the prosecution to testify about injuries
suffered by the plaintiff in an alleged rape case. The defendant examined the
plaintiff and recorded her findings in a witness statement; however, at the
time of the trial she was unavailable for questioning as she had gone on
holiday and the defendant was held to be in contempt of court and a fine was
imposed.
3.150
However, the plaintiff then brought a further civil action against the
defendant claiming that the failure of the defendant to appear in court led to
the case collapsing, which the plaintiff further alleged had the effect of
exacerbating the post traumatic stress disorder she had developed as a result of
the attack. The plaintiff argued that on tort principles
“…the Defendant owed the Plaintiff a duty of care to take all
reasonable steps to provide evidence of that examination in furtherance of the
contemplated prosecution and, in particular, to attend the trial of Mr [G] as a
prosecution witness when required.”[627]
3.151
In this case, the defendant appealed against the previous refusal of the
court to strike out the plaintiff’s claim as disclosing no reasonable cause of
action. The Court allowed the defendant’s appeal finding that as a result of
the witness’ immunity from suit the plaintiff had no cause of action, and held
that the argument that the defendant owed a duty of care to the plaintiff to
take all reasonable steps to attend court and to give evidence was ‘wholly
misconceived.’
3.152
The court also made the point here that the immunity from suit of an
expert is motivated by the fact that the expert’s duty to the court in giving
evidence may be entirely in conflict with a party’s interests,[628]
thus reiterating that while a duty of reasonable care is owed to the party, the
duty to the court remains paramount.
3.153
However, Clarke LJ did point out that where duty to attend court was
established, for example by contract between an expert and a party to
proceedings, this decision should not represent a bar to recovery of damages in
such a case.
3.154
It is also interesting to note that since this decision the Rule 35 of
the Civil Procedure Rules has been interpreted as imposing an obligation on an
expert in civil cases to attend court if called upon to do so and therefore to
ensure that those instructing them are aware dates to be avoided and to take
all reasonable steps to be available.[629]
(i)
Duty to Take
Reasonable Care in Creating Expert Report
3.155
When giving an expert opinion, the expert will be required to set out
the opinion in a written report prior to the trial. There is a duty on the
expert to exercise reasonable care and skill in the creation of this report.
This duty requires the expert to comply with the formalities involved in the
creation of the report, including a written declaration of veracity in relation
to the contents of the report.
3.156
As can be seen below, the New South Wales Law Reform Commission
recommended that provisions relating to the exact contents necessary to be
included in the expert’s reports should not be set out in a code of conduct for
experts, as it would be better to set out a separate guidance note outlining
procedural issues that must be taken on board by experts.[630]
3.157
This recommendation has its merits, in that having the duties listed
separately to the procedural requirements would help to explain clearly to the
expert witnesses the exact extent of their role.
(j)
Duty to Sign
Expert’s Declaration
3.158
Having a statement inserted into any code of guidance requiring experts
to sign a declaration stating they have read and are aware of their duties, and
requiring them to swear an intention to conform with their duties, will it is
submitted, go a long way towards ensuring that expert witnesses are aware of
the scope and parameters of their role and function.
3.159
Great emphasis is placed in other jurisdictions on the importance of the
Code of Conduct, to the effect that only experts who proceed in accordance with
the norms of conduct found in the code should be relied upon and may be
admitted into evidence.
3.160
For example, in New South Wales, in the decision of Commonwealth
Development Bank of Australia Pty Ltd v Cassegrain[631]
Einstein J refused to allow an expert to testify where he had not been given a
copy of the Expert Witness Code of Conduct by the instructing party, which
meant as a result that he had failed to be bound by the Code in the giving of
his statement, as required by Part 36 Rule 13C of the NSW Supreme Court Rules.[632]
Einstein J added:
“To my mind, considerable significance attaches to enforcing strict
compliance in the expert witness provisions now found in part 36 rule 13C.
Questions of the significance of the opinions of experts have been mooted over
a much extended period of time and the…Expert Witness Code Of Conduct was
promulgated with the clear intent that only reports by experts who have
proceeded in accordance with the stated norms of conduct, should be relied upon
and may be admitted into evidence. The significance of the Code Of Conduct
emerges clearly from the whole of the Code as well as from the ‘general duty to
the court’ section of schedule K as well as from the stipulations as to the
form of expert’s reports.”[633]
3.161
The expert’s declaration was also considered in some detail by the English
Court of Appeal in Toth v Jarman.[634]
The Court recommended that the Civil Procedure Rules Committee ought to
consider extending the requirements in the declaration to ensure that any
conflict of interest is avoided by requiring a declaration that all matters
capable of affecting the expert’s opinion have been disclosed as part of the
expert’s declaration:
“In our judgment, the Civil Procedure Rules Committee should
consider extending the requirement for an expert's declaration at the end of
his report. Its present form is directed to ensuring that the contents of the
report represent the independent and unvarnished opinion of the expert making
the report. But, as we have explained above, there is another side to
independence. The expert should not leave undisclosed any conflict of interest
which might bring into question the suitability of his evidence as the basis
for the court's decision. The conflict of interest could be of any kind,
including a financial interest, a personal connection, or an obligation, for
example, as a member or officer of some other body. But ultimately, the
question of what conflicts of interest fall within this description is a
question for the court, taking into account all the circumstances of the case.”[635]
3.162
It is at least arguable that if any similar Code is promulgated in this
jurisdiction, in the interests of furthering its objectives and increasing the
standard and quality of experts and expert testimony, a similarly strict
approach should be taken to enforcement.
3.163
Furthermore, it could be argued that, apart from any fear of sanctions,
requiring an expert to make an express declaration of intent to abide by their
duties may have a significant psychological impact on the content of their
evidence, and may make them act in a more independent manner.
3.164
One could argue that this function is already served by the requirement
of all witnesses to swear an oath when testifying. The expert report, however,
will have been created far in advance of the giving of testimony in court.
Thus, a requirement to sign a declaration at the end of an expert report should
ensure that the expert’s duty is at the forefront of their mind from the
outset.
3.165
The Commission now turns to examine the way in which the duties of
experts have been treated in other jurisdictions.
D
Duties
of Expert Witnesses Recognised in Other Jurisdictions
3.166
Although the decision
in the Ikerian Reefer remains the principal source of reference for
identification of the duties owed by expert witnesses, other jurisdictions have
expanded on this by formulating their own list of duties that are owed by
expert witnesses and which are binding on experts to varying degrees.
(1)
England
3.167
Extensive consideration has and continues to be given throughout the
years in the English courts on the precise and evolving role and duties of an
expert witness.
(i)
Civil Cases
3.168
In civil cases, the Ikerian Reefer decision has been replaced by
the radical reforms which came about arising from Lord Woolf’s Access to
Justice reports in 1995 and 1996,[636]
which sought to address growing criticisms of certain aspects of the civil
justice system in England. In his Interim Report Lord Woolfidentified the
system of expert evidence as being one of the two largest generators of
unnecessary cost and delays in civil litigation, the other one being the system
of discovery.[637]
(I)
The Civil Procedure Rules
3.169
The recommendations in the Final Report led to a complete overhaul of
the Civil Justice System through the introduction of the Civil Procedure Rules
(CPR), which radically changed the procedures for admission of expert evidence
in civil cases.
3.170
The Rules replace and reform the Rules of the Supreme Court and the
County Court Rules, however, CPR 1.1(1) states that the Rules are a “new
procedural code” and the courts have taken the view that references to their
predecessors and the line of authority built up by these should not be
encouraged,[638] except in
limited circumstances where the previous rules have not been amended by the
CPR, and thus retain a persuasive force.[639]
(II)
Part 35 Civil Procedure Rules
3.171
Part 35 of the CPR is entitled ‘Experts and Assessors’ and aims to set
out the protocol for the use of experts in civil litigation. The CPR must also
be read in the light of its supplementing practice directions, and the Practice
Direction to Part 35 (PD35) significantly expands the provisions of Part 35 to
explain more clearly the extent of the duties that are imposed by the CPR rules
on experts in civil claims.
3.172
In keeping with the overriding objective behind the introduction of the
rules, namely enabling the court to deal with cases justly by reducing costs
and delays,[640] CPR r.35.1
states that expert evidence adduced in court is to be limited to that which is
reasonably necessary to resolve the proceedings, and under CPR r. 35.4 the
court has the power to restrict expert evidence where it so wishes.[641]
3.173
In his Final Report, Lord Woolf stated that the overall objective of the
CPR in the context of experts should be to foster an approach which emphasises
the expert’s paramount duty to the court, not to the party who retains him,[642]
an objective that was duly adopted in CPR r.35.3. According to PD35, this
imposes a duty on an expert to help the court on matters within his or her own
expertise.[643]
3.174
PD 35 also explains that the duty imposed by CPR r. 35.3 requires the
expert’s evidence to be independent, and requires the expert to provide an
unbiased, impartial opinion to assist the court, and not to assume the role of
the advocate.[644] The
overriding duty to the court was further explained in Mutch v Allen:[645]
“This new regime is designed to ensure that experts no longer
serve the exclusive interest of those who retain them, but rather contribute to
a just disposal of disputes by making their expertise available to all. The
overriding objective requires that the court be provided with all relevant
matter in the most cost effective and expeditious way. This policy is
exemplified by provisions such as rule 35.11 which allows one party to use an
expert's report disclosed by the other party even if that other party has
decided not to rely on it himself.”
3.175
In order to fulfil their duty under this section, the expert is also
required to consider all relevant facts, “including those which might detract
from his opinion,”[646] as well as
being required to make it clear when an issue falls outside his or her area or
expertise or when he or she is unable to reach a definitive opinion due, for
example, to insufficient evidence.[647]
The expert is also expected to communicate without delay any material change of
opinion to both parties and, where necessary, to the court.[648]
3.176
Part 35 continues by outlining some of the other duties or tasks that
are required to be carried out by expert witnesses in civil litigation. CPR r.
35.5 sets out that have experts are required to give their expert evidence in a
written report unless the court directs otherwise.[649]
CPR r. 35.10, supplemented by part 2 of PD35, outlines the necessary
requirements for the contents of this written report, amongst these a
requirement that an expert sign a statement that he understands and has
complied with his duty to the court,[650]
along with signing a ‘statement of truth’, the form of which is set out in
PD35.[651] CPR r.
35.6 states that experts may have questions put to them about their report by
the other party or a single joint expert (in accordance CPR r. 35.7), [652] and outlines the extent of the duty of
the expert in this regard and the consequences of failure to answer a question.[653]
(III)
Civil Justice Council’s Guidance Protocol
3.177
The Civil Justice Council of the Department of Constitutional Affairs
also published a Guidance Protocol for experts in civil cases which aimed to
reflect, but not replace, CPR r.35 and its PD35, and to provide further
guidance for experts in relation to compliance and interpretation of the CPR
rules.[654]
3.178
This Protocol contains a section dedicated to the Duties of Experts.[655]
The section reiterates the overriding duty owed by experts to the court, but
also states that experts “owe a duty to exercise reasonable skill and care to those
instructing them, and to comply with any relevant professional code of ethics.”[656]
The protocol goes on to state that experts are also obliged to ensure that they
assist the court to enable them to promote the overriding objective of the CPR,
namely, to deal with cases justly.[657]
3.179
The protocol also reiterates the duty of experts, as recognised in PD35,
to provide independent opinions, unaffected by the pressures of litigation, and
to refrain from becoming the instructing party’s advocate.[658]
Furthermore, Part 4.4 of the protocol is significant as it develops the scope
of the evidence that can be given by an expert by underlining the duties to
take into account all material facts,[659]
and to confine the opinion “to matters which are material to the dispute
between the parties and…matters which lie within their expertise,” to make it
clear where an issue falls outside their area of expertise,[660]
and inform the court of any change in their opinions on a material matter.[661]
3.180
Interestingly, the Protocol has a section specifically dedicated to the
conduct and duties of Single Joint Experts appointed by the court under CPR r.
35.7.[662] It is
explained that single joint experts are obliged to keep all instructing parties
informed of any material steps taken. It is once again reiterated that they
have an overriding duty to the court, but as they are all parties’ appointed
experts they owe an equal duty to all parties to maintain independent,
impartiality and transparency,[663]
and to serve their reports simultaneously on all parties.[664]
(IV)
Judicial Reformulation of Ikerian Reefer Principles
3.181
Most recently, Toulmin J in Anglo Group Plc v Winther Brown & Co
Ltd and BML (Office Computers) Ltd[665] stated
that the guidelines set out by Cresswell J in The Ikerian Reefer in 1990
need to be considered and reformulated in light of the introduction of CPR r
35. He restated and extended the rules in following terms;
“1. An expert witness should at all stages in the procedure,
on the basis of the evidence as he understands it, provide independent
assistance to the court and the parties by way of objective unbiased opinion in
relation to matters within his expertise. This applies as much to the initial
meetings of experts as to evidence at trial. An expert witness should never
assume the role of an advocate.
2. The expert's evidence should normally be confined to
technical matters on which the court will be assisted by receiving an
explanation, or to evidence of common professional practice. The expert witness
should not give evidence or opinions as to what the expert himself would have
done in similar circumstances or otherwise seek to usurp the role of the judge.
3. He should co-operate with the expert of the other party or
parties in attempting to narrow the technical issues in dispute at the earliest
possible stage of the procedure and to eliminate or place in context any
peripheral issues. He should co-operate with the other expert(s) in attending
without prejudice meetings as necessary and in seeking to find areas of
agreement and to define precisely arrears of disagreement to be set out in the
joint statement of experts ordered by the court.
4. The expert evidence presented to the court should be, and
be seen to be, the independent product of the expert uninfluenced as to form or
content by the exigencies of the litigation.
5. An expert witness should state the facts or assumptions
upon which his opinion is based. He should not omit to consider material facts
which could detract from his concluded opinion.
6. An expert witness should make it clear when a particular
question or issue falls outside his expertise.
7. Where an expert is of the opinion that his conclusions are
based on inadequate factual information he should say so explicitly.
8. An expert should be ready to
reconsider his opinion, and if appropriate, to change his mind when he has
received new information or has considered the opinion of the other expert. He
should do so at the earliest opportunity.”
(ii)
Criminal Cases
(I)
Judicial Commentary
3.182
In criminal cases, the duties of expert witnesses in England are still
governed by principles laid down at common law, most notably in the Ikerian
Reefer, and the duties enumerated in that decision have been approved in
many later decisions, both civil and criminal, for example Stanton v
Callaghan[666], Franks
& Faith (t/a Ground Rent Securities) v Towse,[667] R v Puaca[668]
and McTear v Imperial Tobacco.[669]
(II)
Criminal Procedure Rules
3.183
Furthermore, in addition to these common law guidelines, the Criminal
Procedure Rules, which came into force in April 2005, also contain provisions relating
to expert testimony. These Rules sought to consolidate the existing rules
governing the practice and procedure of the criminal courts, which up until
that point had been scattered amongst almost 50 sets of rules.[670]
The rules are the first step towards to creation of a comprehensive code of
criminal procedure as recommended by Auld J in 2001 in the Review of the
Criminal Courts.[671]
3.184
The Criminal Procedure Rules largely mirror the contents and objectives
of the Civil Procedure Rules, in that they seek to ensure that cases are heard
fairly, justly and efficiently. Rule 24 of the Rules deal with expert evidence.
The provisions in Rule 24 largely mirror those contained in Rule 35 of the
Civil Procedure Rules, and provisions relating the overriding duty owed by
experts to the court, the requisite contents of an expert’s report, pre-trial
discussions between experts and the power of the court to direct that evidence
be given by a single joint expert are similar or the same as their counterparts
in CPR r. 35.[672]
(iii)
Professional Bodies
3.185
Many of the professional bodies that train and educate expert witnesses
(discussed below) have also created their own Codes of Guidance for experts.
For example, the Academy of Experts[673]
and the Expert Witness Institute[674]
have set out a joint Code of Guidance for Experts which was approved by Master
of the Rolls & Chairman of the Civil Justice Committee and which applies to
members of both associations.[675]
Other bodies governing the conduct of specific professions have also set out
their own codes of conducts for professionals within the discipline seeking to
act as expert witnesses.[676]
3.186
Much of the provisions in the Codes set out by these professional bodies
reflect the contents of the guidance set out in the Ikerian Reefer
decision or in the relevant provisions of the civil or criminal procedure
rules, all placing great emphasis on the overriding duty owed by the expert to
the court and the necessity for honesty, integrity, objectivity and
impartiality at all times.
(2)
Australia
3.187
In Australia, Section 79 of the Uniform Evidence Act 1995 (Cth),
which has been followed by parallel statutes in several jurisdictions,[677]
contains the main provision allowing for the admissibility of expert evidence.[678]
However, this provision merely states that the opinion of a person with
specialist knowledge is an accepted exception to the rule against opinion
evidence, and the Act does not elaborate on how this exception is to operate in
practice, and is silent on the duties required of experts.
(a)
The Federal
Court
3.188
The Federal Court of Australia also adopted a Practice Direction for
expert witnesses, which largely emulates the guidelines set out in the CPR
Rules and the Ikerian Reefer, and in fact, it expressly cites these as
authorities for the Practice Direction.[679]
The explanatory memorandum to this Practice Direction states that it aims to
assist expert witnesses in understanding what is expected of them in court, and
to ensure that experts avoid being perceived as lacking objectivity, or of
having coloured their evidence in favour of the party calling them.
3.189
Like the CPR rules, part one of the Practice Direction commences by
stating that experts have a general duty to the court which is paramount to the
duty owed to the person retaining the expert. In 1.2 it is stated that an
expert does not become a party’s advocate “even when giving testimony that is
necessarily rather than inferential.”
3.190
Furthermore, many of the individual states within Australia have set out
their own codes of conduct governing the duties of experts within those states.
(b)
New South Wales
3.191
For example, in New South Wales in 2005, the Uniform Civil Procedure
Rules, made under section 9 of the Civil Procedure Act 2005, were
enacted, Schedule 7 of which consists of a code of conduct for expert
witnesses.[680] This code
was greatly influenced by common law principles, and imports many of the
guidelines set out in the Ikerian Reefer and the Civil Procedure Rules
in England, including the general principle that the expert witness must not
become a party’s advocate and that their evidence must be independent and
impartial.
3.192
Like the Civil and Criminal Procedure Rules, the Code also contains a
section on the requisite contents of the expert’s report, however,
interestingly, the New South Wales Law Reform Commission has recommended that
this part of the code be amended to delete the provisions dealing with matters
of form rather than experts’ duties as, in the view of the Commission, “the
force of the code of conduct should not be diluted with provisions which are
purely procedural in nature.”[681]
The New South Wales Commission is of the opinion that it would be preferable to
include such procedural provisions in a rule or practice note specifically
dealing with procedural matters concerning expert witnesses.[682]
(c)
Queensland
3.193
Similarly in Queensland, the use of experts is governed by the Uniform
Civil Procedure Rules 1999 (UCPR) rule 212(2) and rules 423 to 429, as amended.
These Rules, unlike the NSW Rules, do not have a code of conduct for experts,
and the rules are largely procedural in nature, however, they do make reference
to the paramount duty owed to the court, and the procedural requirements are
designed to reflect the obligations to which an expert is expected to adhere.
For example, UCPR r 426 requires the expert report to be addressed to court and
signed by the expert, a requirement that is designed to highlight and reflect
the expert’s overarching duty to the court.[683]
(d)
Australian
Capital Territory
3.194
In the Australian Capital Territory a major overhaul of the court’s
system took place with the introduction of the Court Procedure Rules 2006.
These were introduced to modernise and consolidate the procedural rules
governing the ACT Supreme Court and Magistrates Court.[684]
3.195
Part 2.12 of the Rules governs the giving of expert evidence. Rule 1202
provides that any individual wishing to act as an expert witness must give
written agreement to be bound by the Code of Conduct set out in Schedule 1 of
the Rules.
3.196
This Code of Conduct incorporates the expert witness code of conduct
that was previously in a practice direction, with some additional provisions
from Queensland and New South Wales. It begins by referring to the overriding
duty owed to the court before setting out the required format for the expert
reports. The fourth and final part of the Code refers to the capacity of the
court to convene a conference between expert witnesses and sets out the
provisions relating to such conferences.
3.197
It can be argued that this Code of Conduct is not really a Code of
Conduct at all as it does not set out guidelines for experts on how to act
while giving evidence but instead focuses on the procedural requirements and
rules applicable to experts.
(e)
Professional
Bodies
3.198
Furthermore, as in England, many professional bodies in Australia whose
members may be called upon to act as expert witnesses have also set out Codes
to give guidelines to experts. For example, the Australian Council of
Professions, a national organisation which aims to promote professionalism and
ethical practices within its member professions, adopted a guidance paper on
the role and duties of an expert witness in litigation to which its members are
required to conform when giving expert evidence.[685]
(3)
Euroexpert
3.199
Euroexpert is a European-wide organisation set up by a number of expert
witness professional bodies including The Academy of Experts in England and The
Fédération (now Conseil) Nationale des Compagnies d'Experts Judiciaires (FNCEJ)
in France. The organisation aims to promote common professional standards and
cross-frontier cooperation amongst experts across Europe, and to provide a
forum for experts and a point of contact between experts and the European
Union.[686]
3.200
Euroexpert has also set out its own Code of Practice for its members,
which contains the minimum standards that must be maintained.[687]
This Code is phrased in a more general format than the other Codes from
Australia and England. This is probably due to the fact that Euroexpert is
composed of members from both common and civil law jurisdictions, so some
duties may not translate across well between different systems of law, and
different systems may place emphasis or require additional duties than others.[688]However,
most of the Euroexpert member countries are signatories of the European
Convention on Human Rights, and therefore the Euroexpert code has been drafted
within the context of conforming with Article 6 of the ECHR and the Right to a
Fair Trial.
3.201
The code is short, composed of just five provisions, which are largely
focused on ensuring a high standard of expert witness and the protection of the
client. Considerable emphasis is placed in these guidelines on full disclosure
of potential conflicts of interest, impartiality, independence,
confidentiality, and maintaining a high quality of work. Interestingly, the
code also requires the expert, for the protection of his client, to ensure that
proper insurance with a reputable insurer is maintained for an adequate
indemnity.
3.202
In a comprehensive AGIS report created in 2007, where Euroexpert
surveyed expert practice in 12 European Union Members states, the common
denominator of all contributing member states was an acknowledgment of the need
to impose a Code of Practice, based on conditions of objectivity, independence,
impartiality and competence, on expert witnesses.[689]
(4)
France
3.203
In France, a civil law system applies and experts are appointed not by
the parties, but by the court from a set list, which means that he role, and
therefore the duties, of the expert are somewhat different. However the duties
that have been identified by the principal representative body in France, the
National Council of Experts in Justice[690]
remain worthy of note.
3.204
The Euroexpert Code of Conduct referred to above was largely modelled on
the Code of Conduct of the French National Council[691]
but the Council’s Code is significantly more detailed. Membership of the
Council implies an undertaking to respect the Code, which is a considerably
detailed document, with a far greater number of duties listed than those in the
Ikerian Reefer, the Civil or Criminal Procedures, or in any of the other
Codes of Conduct discussed above.
3.205
The French National Council code is interestingly as it is structured
under separate headings for the personal duties of the expert (Part I), the
duties of the expert towards judges (Part II), the duties of the expert towards
the parties (Part III), the duties of the expert towards his colleagues (Part
IV) and the duties owed by experts engaged in private consultation with the
parties (Part V).
3.206
As already mentioned, in France, the experts are appointed not by the
parties, but by the court from a set list, therefore many of the duties set out
in this code, particularly those owed to the judge and the parties, may not be
relevant to this jurisdiction. Furthermore, many of the duties in this code
reflect those that can be seen as standard in many of the other guidance
provisions discussed above.
3.207
However, some of the duties listed in this code that have not be listed
in other guidance codes are worthy of note. For example, Part I (2) goes some
way towards defining an expert, and stresses the point that experts do not
practice as a profession, “but within the defined limits of their competence,
an activity corresponding to the mission for which they are appointed.” Also
interesting is Part I (5), which requires the expert “to maintain the technical
and procedural understanding necessary for the satisfactory accomplishment of
his activities as an expert.”
(5)
Ireland
3.208
As mentioned earlier, in sharp contrast with the developments in other
common law jurisdictions, there is lack of legislative guidance in this
jurisdiction regarding the extent of the duties owed by expert witnesses coming
before the Irish courts in both civil and criminal cases. However, many of
those duties discussed above will evidently apply, and although the Ikerian
Reefer has not been expressly endorsed in the Irish courts, it can be
argued that this decision represents a good summary of the principal duties and
responsibilities that apply to expert witnesses in this jurisdiction.
(a)
Judicial Commentary on Expert’s Duties
3.209
In a number of judicial review proceedings where delay was raised as a
bar to prosecutions for alleged of sexual abuse, the courts have discussed and
developed the requisite standard and nature of the evidence expected from
expert witnesses. In these cases, it has been repeatedly held that there is an
obligation on all professional witnesses to make thorough investigations of all
surrounding facts in order to give a completely objective and unbiased opinion.
3.210
In Fitzpatrick v DPP[692] an expert witness was put forward by the DPP in order to
explain, from a psychologist’s point of view, the reasons for the delay between
the alleged abuse and the complainants filing a complaint. McCracken J. ruled
that he would place little weight on this evidence, based on the “quite
astonishing” fact that the witness had failed to mention the abuse of the
complainants by family members and the potential psychological effects of this.
He stated:
“It is my strongly held view that where a witness purports to
give evidence in a professional capacity as an expert witness, he owes a duty
to ascertain all the surrounding facts and give that evidence in the context of
those facts, whether they support the proposition he is being asked to put
forward or not.”
[693]
3.211
Similarly, in AW v DPP,[694] which involved the same expert that had been criticised
in Fitzpatrick, Kearns J pointed out that nothing in the expert’s report
provided any explanation or reliable evidence as to why one of the two
complainants could not have come forward at an earlier stage to make her
complaint while in the case of a second complainant she married a member of the
Garda Síochána.
3.212
Kearns J concluded that the expert “fell down to a significant degree”
and “indeed to such an extent that matters put to him in cross-examination
overshadow his entire report.”[695]
He criticised the expert’s report in that;
“Where and when requested to carry out a psychological
assessment, it is in my view incumbent upon a psychologist to discharge such a
function, in detail and depth, even if his brief is mainly to inquire into
factors explaining delay. It is not sufficient, in my view, to set out a list
of general principles relating to complaints of this nature and then to attach
these to a particular complainant without some understanding of the psychological
make-up of the individual in question which would suggest whether these general
principles, or some of them, were particularly apt or appropriate, or even
perhaps irrelevant to the particular complainant.”[696]
3.213
Similar criticisms were also expressed by the Supreme Court in JOC v
DPP.[697] Here Keane CJ held that the opinion of the expert
witness psychologist which gave reasons for the delay in complaining about the
alleged sexual abuse “was a gravely inadequate one.” In the report she
attributed the ‘cluster of behaviours’ demonstrated by the complainant to
sexual abuse but failed to suggest other reasons for these behaviours. However,
in cross-examination, she acknowledged that there were other possibilities and
other factors involved which she had not listed in the report, and which she
had not made the effort to inform herself about in detail.
3.214
Furthermore, the expert had failed to interview the complainant’s
parents or other siblings, which, in the view of the court, would have been
relevant “to see if the ‘clusters of behaviours’ on which she placed emphasis
were replicated in other relevant people.”[698]
Keane CJ also criticised the fact that:
“she has little specific to say about nondisclosure in
adulthood by this complainant and indeed had failed to elicit basic facts about
it.”
For all these reasons, he held that
not much weight could be placed in the psychologist’s report and the reasons
for the delay and, as a result, the Court allowed the applicant’s appeal.
3.215
In RB v DPP[699] Macken J elucidated more clearly the standard of
evidence that would be expected from experts in such cases:
“While it is true that in certain reported cases the expert
has stated that in his/her opinion it was quite “reasonable” for the
complainant not to complain, it seems to me that this is not really the correct
approach. It may be that such experts are asked by legal advisers to give an
opinion as to whether it is or is not reasonable not to complain having regard
to the effects of abuse. I believe, however, it is preferable for the expert to
set out for the Court in as clear language as possible those factors concerning
the complainant which will allow the Court to decide whether it was explicable
and excusable by reference to the applicant's abuse, for the complainant to
refrain from complaining at an earlier point in time.”[700]
3.216
These cases show the courts in such cases to place a heavy duty on
experts to be thorough in their investigations and ensure they take all
relevant factors into account, and where necessary, actively interview
individuals whose information may have a considerable bearing on the opinion,
in order to give a clear and detailed opinion about the relevant issues in
question.
3.217
The large quantity of cases in this vein where expert evidence has been
criticised, and in some cases, rejected, highlights that the court requires a
high standard of care from professional witnesses.[701]
The potential consequences for complainants in these cases in having the
prosecution dismissed are also considerably onerous, a factor that should also
be used to encourage expert’s to conduct a thorough investigation from the
outset.[702]
3.218
O’Flaherty J in a 1996 Conference of Advances in Forensic Science
suggested a checklist or a number of ‘commandments’ by which any expert seeking
to give effect expert testimony should abide.[703]
First, he should be properly qualified in the field in which he purports to be
an expert, and as can be seen from the above, this involves an ability to
demonstrate this knowledge in court.
3.219
Second, the expert should be “a servant of justice rather than act as
the hireling of one side or the other.”[704]
Third, where possible he should enter into discussions with the other side
prior to the trial with the view of narrowing contentious issues and thus of
possibly speeding up the trial process. Fourth, he should have the ability to
communicate his conclusions in a way that will be understandable to way people.
3.220
Fifth, he should be meticulous in his record keeping, ensuring that
exhibits are well preserved, which will help reduce mistakes that could lead to
appeals or acquittals. Sixth, he should not pretend to have expertise that he
does not possess. Finally, he must remain patient at all times and not lose his
temper during questioning.
(b)
Professional Bodies
3.221
As with England and Australia, certain professional bodies in Ireland
who regulate and govern certain professions have set out guidelines for their
members to help explain their role and duties when called to act as an expert
witness.
3.222
For example, the Expert Witness Directory of Ireland consists of a
reference-checked list of expert witnesses in over 1,000 areas of expertise. In
order to be permitted to use the ‘Expert Witness Directory of Ireland Irish
Checked’ logo, an expert witness will have to prove that they have met with the
requirements of the Expert Witness Directory of Ireland Code of Conduct.[705]
3.223
This is a Code of Guidance which aims to assist experts to effectively
provide reliable expert testimony. It is split into twelve sections and begins
by stating in the introduction that its provisions are of general application
and therefore there may be additional requirements relating to specialised
areas. The Code is extremely detailed and does not merely outline the duties
and ethical obligations owed by experts but also goes into great detail about
the procedural requirements and obligations where a person has agreed to act as
an expert witness.
3.224
The second part sets out the procedure for acceptance of instructions
from a solicitor or barrister and stresses that clear instructions are
required. Interestingly, this clearly explains the admissibility requirements
for expert evidence by emphasising that instructions can only be accepted where
the expert has the “knowledge, experience, expertise, academic qualifications,
professional training and resources appropriate for the assignment,” and an
expert may not misrepresent himself in terms of his or her qualifications or
experience. It is also underlined here that an expert should not take
instructions if they are not able to create a report and carry out other
necessary tasks within the agreed timeframe or to the necessary standard.
3.225
Part 3 is procedural in nature and explains that the terms of business,
such as timeframe, charges, expenses, rates for court attendance etc, should be
agreed prior to the acceptance of instructions. Part 4 simply states that the
expert must comply with the Code of Conduct of any professional body of which
he or she is a member. Part 5 underlines the obligation on the expert to act in
confidence unless under a duty to disclose.
3.226
Part 6 sets out clearly the duty on the expert to act independently and
with professional objectivity and impartiality at all times. In doing so, this
part requires the expert to disclose any potential conflict of interest and
gives examples of the forms such potential conflicts can take.
3.227
The seventh part of the Code sets out detailed requirements relating to
the expected standard of investigation (where this is necessary) that must be
carried out by an expert in order to give a fully informed report. Particular
provisions are set out relating to investigations for the purposes of medical
reports.
3.228
The next part sets out in great detail the requisite elements of the
expert report. This sets out both form and substantive contents requirements
and explains the permitted scope of the evidence by emphasising that an expert
must stay within his area of expertise and where possible should distinguish
between matters of fact and matters of opinion.
3.229
Part 9 of the Code of Practice provides for the convening of meetings
between experts and gives some practical guidelines relating to how such
discussions should take place.
3.230
Part 10 places a duty on experts to take all reasonable steps to ensure
that he or she is available to give evidence in court, and this part also
strongly emphasises that when giving evidence in court, the role of the expert
is to assist the court independently of the parties. As the overriding duty
owed to the court is such a central tenet in the expert witness system it is
submitted that it should take a more centre stage place in the Code of
Practice.
3.231
Placing this in a provision which deals solely with the duty to attend
court may lead one to believe that the overriding duty to the court is owed
only while giving evidence in court, and therefore no such duty is owed when
creating the expert report. This is clearly an erroneous belief.
3.232
The last two provisions are very significant in that they refer to the
accountability of experts. Part 11 states that expert should provide a
procedure for the resolution of complaints of solicitors or barristers. Part 12
requires an expert to maintain appropriate professional indemnity cover for the
giving of expert testimony.
3.233
The Irish National Teachers Organisation (INTO) has also created a
guidance direction for teachers acting as expert witnesses in cases involving
such issues as family law, custody, child protection or negligence.[706]
While this guidance note does not refer to an overriding duty to the court, or
that the expert should always be impartial, independent and unbiased, it does
place considerable emphasis on ensuring that teachers realise the extent of
their area of expertise;
“The teacher is there in his/her professional capacity as a
teacher and should generally be expected only to comment in relation to the
teaching/learning situation, for example in relation to the child's attendance,
progress or other school related matters. Teachers should note that they are
not psychologists or social workers and that their professional expertise
relates to the teaching/learning situation.”[707]
3.234
Similarly, the Society of Actuaries in Ireland also provides a Standard
of Practice guidance note for actuaries acting as experts.[708]
This is an extremely detailed document which has a very clear and
comprehensible structure. It is well organised into different sections entitled
‘background’, ‘background preparation,’ ‘preparation of evidence,’ and
‘communication and disclosure.’
3.235
In the ‘Background’ section, the guidelines explain the burgeoning use
of experts in court proceedings, and also the fact that competing and
conflicting expert opinions can lower public confidence in them. The guidelines
stated aim, therefore, is to focus on the preparation and delivery of sound
expert evidence by actuaries.[709]
Examples of the different types of issues for which actuaries are invited to
give expert evidence are outlined.
3.236
In the ‘Background Preparation’ section, experts are obliged to be
familiar with all relevant actuarial standards of practice, and to have
sufficient expertise as is necessary for the issues involved in the case.[710]
This part also requires an expert to avoid potential conflicts of interest and
notify the court and the parties about potential conflicts.[711]
This section is very detailed and for the benefit of those professionals who
may be unaware of what may amount to a conflict of interest, the guidelines
give examples of what format this may take.[712]
3.237
The ‘Preparation of Evidence’ section interestingly requires the actuary
to be satisfied of the reasonableness of the data provided, and to disclose any
data limitations which may affect the result. This requirement would go a long
way towards ensuring that the expert genuinely held the opinion given. This
part is also important as it gives very clear guidance about the type of
evidence that can be given by actuaries, explaining that they can give
valuations based on assumptions once it is made clear to the court and the
parties which assumptions are reasonable.
3.238
It is also strongly emphasised in the ‘Preparation of Evidence’ section
that the fundamental obligation of the expert is to provide impartial evidence
to the court and that the opinion must be confined to matters within the
expert’s own experience and expertise. This part is reminiscent of the Ikerian
Reefer going so far as to point out that expert evidence must “not be
modified to suit the exigencies of litigation.”[713]
3.239
Guideline 4.4.4 is also noteworthy as it demonstrates an understanding
of the possibility that a party’s legal advisers may wish to direct the opinion
to suit their needs. This part highlights the supremacy of the duty owed to the
court by emphasising if this is the case the expert should consider advising
that another expert be instructed rather than depart from these guidelines:
“If legal advisers propose that the actuary should avoid
reference to particular information or, in some other way, depart from the
general tenor of these guidelines, the actuary should comply only if entirely
at ease with the adviser’s proposal, having fully considered the implications.
It may be appropriate in exceptional circumstances for the actuary to seek
independent advice or to suggest that, if the tenor or method of presentation
of the evidence is not acceptable to the client, another expert should be
instructed.”[714]
3.240
The ‘Communications and Disclosures’ section explains the necessity for
the expert’s opinion to be expressed in clear, understandable language and in
terms that can be comprehended by those unacquainted with the jargon of the
profession. This section also explains the duties owed by the experts to
produce a report, and explains potential pre-trial procedures such as meetings
between experts, as well as referring to legal terminology that might apply
such as a meeting ‘without prejudice.’ It also clearly outlines potential traps
for experts during cross examination and the need to ensure consistency in
answers. This part reveals that the writers of the guidance note understand
clearly that professionals depending on it will be unaccustomed to many aspects
of the legal system and to the role of an expert witness.
3.241
Finally, the expert is encouraged to refrain from becoming a party’s
advocate, and interestingly, not to be afraid to characterise an opinion as
nothing more than speculation, again stressing that the fundamental duty is to
provide independent evidence and not to defend the instructing party.
3.242
Overall, these guidelines explain the principal role and duties of an
expert while at the same time not forgetting that those relying on the
guidelines are likely to be inexperienced in relation to aspects of the legal
system. These guidelines could therefore provide a good model on which to base
any legally binding code or practice direction for experts.
E
Conclusion
3.243
As demonstrated by the foregoing discussion, most other common law
jurisdictions have made some attempts at introducing a formal list of duties
owed by persons seeking to act as expert witnesses that reflect the duties set
out in the seminal English decision National Justice Compania Naviera SA v
Prudential Assurance Co Ltd (The Ikerian Reefer).[715]
3.244
Although specific duties have been mentioned in Irish case law as being
owed by experts, and although several professional bodies in Ireland have set
down their own list of expert’s duties, as of yet there has been little
judicial or legislative guidance for experts on the complete list of duties
which are owed by them in their role as expert witnesses.
3.245
The Commission considers that more complete judicial or legislative
guidance would greatly improve the standard of expert evidence and of expert
witnesses by clearly elucidating the parameters of the role of an expert
witness. The Commission therefore provisionally recommends that a formal
guidance code for expert witnesses, based on the principles set down in National
Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikerian Reefer)[716]
should be developed which would outline the duties owed by expert witnesses and
which would be made available to all persons seeking to act as expert
witnesses. The Commission invites submissions on the form, statutory or
non-statutory, this guidance should take and whether all the specific duties
identified in The Ikerian Reefer should be adopted.
3.246
The Commission provisionally recommends that a formal guidance code for
expert witnesses, based on the principles set down in National Justice Compania
Naviera SA v Prudential Assurance Co Ltd (The Ikerian Reefer)[717]
should be developed which would outline the duties owed by expert witnesses and
which would be made available to all persons seeking to act as expert
witnesses. The Commission invites submissions on the form, statutory or
non-statutory, this guidance should take and whether all the specific duties
identified in The Ikerian Reefer should be adopted.
4
CHAPTER 4
Adversarial
Bias, Partisanship & Conflicts of Interest
A
Introduction
4.01
The corollary of the identification a number of fundamental duties owed
by experts is the acknowledgment that at times these duties are not always
fulfilled, or in some cases, even recognised. Although the role and function of
the expert as an impartial aid to the court has been repeated time and time
again, in reality, where an expert has been retained by a party to judicial
proceedings, this has not been done in the overriding quest for truth, but in
order to enhance the arguments that the particular party seeks to advance and
offset the evidence of experts for the other side.
4.02
Bias or partisanship, which goes completely against the duty owed by the
expert to be impartial and independent, can take place in a number of ways in
the giving of expert testimony and a number of different sources of adversarial
bias have been identified. ‘Conscious bias,’ ‘unconscious bias’ or ‘selection
bias’ may all occur in the giving of expert testimony. [718]
4.03
This chapter will examine the various sources of adversarial bias that
have been identified in an effort to determine how best to reduce the
prevalence of bias in expert testimony.
B
Conscious Bias
4.04
Conscious or deliberate bias refers to the problem of the partisan
expert, or the ‘hired gun.’ Here, the expert does appreciate the extent of the
role and the overriding duty owed to the court, but is biased in favour of the
instructing party due to the fact that the party is paying them, or in some
cases, due to the expert’s personal feelings on issues involved in the case.
4.05
Although it is clear that there is an equal potential for conscious bias
in the context of lay witnesses, the likelihood of this occurring is stronger
with professional expert witnesses for a number of reasons. Dwyer explains that
the causes of expert bias, conscious or unconscious, can be separated into
three categories; personal interest, financial interest and intellectual
interest; all of which may exist both externally and in direct relation to the
litigation in question.[719]
(1)
Personal Interest
4.06
A person giving expert testimony may be, or may be perceived to be,
predisposed to giving a particular type of opinion due to their own beliefs or
moral viewpoints on certain issues.[720]
They may also have formed preconceived opinions due to personal relationships,
or due to an affiliation with or membership of the same organisation as one of
the parties to the proceedings, [721] all of which may have a negative effect
on their personal trustworthiness as an independent expert witness.
4.07
In Liverpool Roman Catholic Archdiocesan Trust v. Goldberg[722] the court refused to admit an expert adduced by the
defence because the defendant had had a close personal and professional
relationship with the expert for several years. Evans-Lombe J explained that
the refusal was based on the fact that a reasonable observer might think that
this relationship was capable of affecting the views of the expert so as to
make them unduly favourable to that party.
4.08
Expert witnesses might also find themselves becoming emotionally
involved with the instructing party, or identifying and sympathising with their
arguments, in circumstances where they have spent considerable time analysing
the issues, or where they have been repeatedly instructed by the same party and
thus have become almost akin to that party’s adviser.
4.09
Particularly where emotive or sensitive issues are in question, this may
lead the expert to become attached to their instructing party, thus
exacerbating the possibility that they will, either consciously or
unconsciously, sway the opinion in their favour.
4.10
This danger that an expert witness who has a well established
relationship with a party might develop sympathy for or identification with
that party which jeopardises objectivity was referred to in Vernon v Bosley.[723]
Here, the plaintiff claimed damages for nervous shock or psychiatric injury
sustained by him when he witnessed unsuccessful attempts to rescue his two
daughters from a motor car which had been driven into a river by the defendant.
4.11
Thorpe J found the claimant’s expert witness’s evidence to be
“thoroughly partisan reports.” He explained that:
“…their loss of objectivity might be ascribed to their daily
attendance at the trial which had tempted them into sharing attitudes,
assumptions, and goals with the defendant's litigation team.”
4.12
It is also worth noting that where emotive issues such as this are
involved, it is human nature to become sympathetic to the person involved and
seek to further his or her case. This is particularly so in situations where,
as occurred in this case, the experts were “sucked into” the litigation as a
result of spending considerable time in court, particularly when only a small
proportion of this time was necessary for their testimony. One way of reducing
this danger is to limit the expert’s attendance at trial, only permitting them
to attend court when they are due to be examined.
4.13
Another possible cause of bias generated by the personal interest of
experts is where they develop a belief that they owe an allegiance to their
particular profession, making them reluctant to fuel an attack against a fellow
practitioner. As Healy puts it, “members of professions tend to be
institutionally and socially collegial.”[724]
4.14
This possibility has an added effect in the context of medical
negligence cases as a result of the ultimate importance attached to the opinion
of medical experts in determining whether a professional has acted negligently.
The test for medical negligence in this jurisdiction was set down by Finlay CJ
in Dunne v National Maternity Hospital.[725]
A medical practitioner will be considered as having acting negligently if he
has been proved to be “guilty of such failure as no medical practitioner of
equal specialist or general status and skill would be guilty of if acting with
ordinary care.”
4.15
Therefore, a plaintiff will fail to establish negligence once a
defendant can adduce a credible expert witness to condone the course of action
taken in the circumstances. Without wilfully meaning to be partisan, there is
the possibility that a medical expert may express a willingness to testify on
behalf of the defendant practitioner that is more motivated by a desire to
support one of their own, than an actual support of the medical action taken in
the case.
4.16
Furthermore, it has often been pointed out that in such medical
negligence cases, defence expert witnesses can dominate proceedings as there is
reluctance on the part of the expert to help in what is seen as an attack on a
fellow practitioner.[726] Carter J
referred to this trend in the Californian decision Huffman v Lindquist:[727]
“…physicians who are members of medical societies flock to
the defense of their fellow member charged with malpractice and the plaintiff is
relegated, for his expert testimony, to the occasional lone wolf or heroic
soul, who for the sake of truth and justice has the courage to run the risk of
ostracism by his fellow practitioners and the cancellation of his public
liability insurance policy.”[728]
(2)
Financial Interest
4.17
An expert may be revealed to have a financial interest, either
pre-existing or developed during the trial process, in the outcome of the case
or in one of the parties in a number of ways that may not be obvious at first
glance.
(a)
Pecuniary
Interest in One of the Parties
4.18
The expert witness could be revealed to have invested in or have shares
in one of the instructing parties’ businesses, or in an enterprise related to
one of the parties. Depending on the context of the litigation, this fact may
influence their opinion, as they would be reluctant to give an expert opinion
that would be likely to have a negative financial effect on the party’s
business, as this might in turn harm the expert’s pecuniary interest.
(b)
Desire to
Develop a Professional Expert Witness Career
4.19
Similarly, a person who wishes to develop a career as a professional
expert witness has an obvious interest in promoting a reputation that he or she
presents the party’s case in the best possible light. The more successful cases
an expert is associated with, the better for his or her career as an expert,
which highlights a natural underlying interest in the instructing party’s
success.[729]
(c)
Expert Employed
by One of the Parties
4.20
Furthermore, an expert, who is, prior to and after the proceedings, an
employee of the instructing party, or of another interested party, could also
evidently be considered as having their independence compromised due to the
financial element of their employment. It is possible that the employee may
feel pressured into expressing a particular opinion to avoid potential
dismissal or other professional repercussions.
4.21
For example in Mohammed v Financial Services Authority[730]
the applicant argued that the respondent’s expert witness should not be
admitted due to the fact that a senior staff member of the company the expert
was employed by was a member of the respondent organisation’s regulatory
committee, and thus was involved in the decision to bring proceedings against
the applicant.
4.22
It was argued that the fact of employment brought the expert’s
independence into question as it was contended the expert would be reluctant to
depart from the views of a senior member of his own company on the issues in
question. The court here emphasised that they were not criticising the expert,
but did hold that the expert could not be considered truly independent and that
“insofar as he has been tendered as an independent expert giving an opinion as
to the views of a regular user of the market, we have been unable to give his
evidence much weight.” [731]
4.23
The correct approach to be taken in the context of experts who are also
employees of a party to proceedings was discussed in Chapter 3,[732]
where it was explained that the preferred approach taken in the case law from
this jurisdiction, for example Galvin v Murray,[733] and in England is not to treat the fact of employment of an
expert as demonstrating apparent bias, but rather to take this fact into
account when assessing the weight to be accorded to the evidence of the expert. [734]
4.24
It has also been argued that problems may arise where a therapist is
treating an individual and at the same time is asked to act as an expert
witness in a case involving the individual.[735]
This assumption of a dual role could lead to a very real conflict of interest
and have negative impact on the therapist-patient relationship, or may
adversely affect the way in which the evidence is presented to the court.
4.25
For example, in the infamous American case in the 1990s of Erik and Lyle
Menendez, who were charged with the murder of their parents, a forensic
psychiatrist who treated Erik and also gave evidence in his capacity as
forensic psychiatrist later admitted to have altering notes of his sessions as
he thought this would harm the defence. As explained by fellow psychiatrist Dr.
Schetky:
“Amid pressures to protect his patient and appease his
attorney client and his belief that his testimony was critical to the case, he
lost sight of the need for the psychiatrist at all times to testify truthfully.
When we allow our integrity to be compromised by competing pressures, we do a
disservice to our patients, the profession, and the legal system.”[736]
4.26
However, it is also clear that in determining issues such as sanity of
an accused such therapists are arguably best placed to testify accurately about
the patient, having had first-hand experience with them at the relevant time,
rather than a practitioner who makes an opinion based on a therapist’s notes of
examinations.
4.27
Based on the added value that first-hand experience will give to an
opinion, any prohibition on treating therapists acting as expert witnesses is
clearly undesirable. It is submitted that the correct approach to take in such
cases is once again take into account this fact at weight, rather than
admissibility stage. The Commission therefore provisionally recommends that
there should not be a prohibition on treating therapists acting as expert
witnesses.
4.28
The Commission provisionally recommends that there should not be a
prohibition on treating therapists acting as expert witnesses.
(d)
Expert Paid by
the Instructing Party
4.29
The most obvious source of the financial interest that an expert has in
court proceedings lies in the fact that experts are being paid by the
instructing party for their service in giving evidence. This is in contrast
with the situation of ordinary witnesses, who are not paid for their testimony,
and who can be compelled to give evidence, so do not do it as a ‘service.’[737]
As pointed out by Jessell LJ in Abinger v Ashton:[738]
“Expert evidence of this kind is evidence of persons who
sometimes live by their business, but in all cases are remunerated for their
evidence. An expert is not like an ordinary witness, who hopes to get his
expenses, but he is employed and paid in the sense of gain, being employed by
the person who calls him. Now it is natural that his mind, however honest he
may be, should be biassed [sic] in favour of the person employing him, and
accordingly we do find such bias.”[739]
4.30
It will also be more difficult for the other party to reveal an expert
to be a partisan hired hand than it will be to discredit an ordinary witness
whose personal affiliations with a party are detectable, due to the fact that
the other party is likely to be funding their own expert, which would prevent
them raising pecuniary reasons for the alleged bias.
4.31
In the context of payment of experts, the existence of a contingency fee
basis for payment is potentially indicative of a pecuniary bias on the part of
the expert during the trial process. In England, the appropriateness of
contingency fees was considered in R (Factortame) v Secretary of State for
Transport[740] where the
court held that such arrangements would not automatically preclude evidence,
but such an interest should be disclosed and may affect the weight of the
evidence.[741]
(3)
Intellectual Interest
4.32
Intellectual interest is another factor that may generate bias in cases
where there is general scope for differing opinions between experts; an
interest which may be motivated by a desire on the part of the witness to
promote a particular theory in their field of expertise through the medium of
court proceedings.[742]
4.33
The desire to increase one’s expert status in a particular subject may
lead a person to be biased in favour of their own theories, either consciously
or subconsciously. This could have significant effects on the way in which they
present expert evidence in court. The development of novel scientific theories
can significantly improve a scientist’s standing in their field. The witness
may use the courtroom setting as a vehicle for promoting their career without
fully considering other possibilities with regard to the specific issues
involved in the case, if such alternatives would detract from their personal
theories.
4.34
This possibility is aggravated by the distinction which exists between
ordinary and expert witnesses. Since lay witnesses must restrict their evidence
to matters personally perceived by them the available choice, if any, of such
witnesses is limited. Both parties, however, are free to survey a wide range of
expert witnesses to find one sympathetic to the party’s own arguments.
4.35
Although it is inevitable that a person who is considered to be an
expert will submit their own experience as representing best knowledge and
practice in the subject area, an expert witness should be willing to consider
alternative theories rather than uncompromisingly sticking to their own
viewpoint. All theories should be judged in the light of the facts of the case.
4.36
An English example where an expert was held to have been giving biased
evidence appearing to have been motivated by his professional viewpoint is Petursson
& Ors v Hitchison 3G UK Ltd.[743]
In this case the claimants claimed that the defendant’s telecommunications mast
had had substantial adverse effects on their physical health and well-being and
on their enjoyment of their property, an issue that in recent years is
attracting increasingly zealous and fervent views.[744]
4.37
Here, the claimant’s expert claimed that a number of expert reports and
studies on this issue that were submitted in evidence “lacked honesty,
independence and were economical with the truth.”[745]
In considering this evidence, Kirkham J considered that the expert’s criticisms
must be viewed in the light of his own partiality in giving evidence. She
criticised the expert for his lack of balance and partiality in giving evidence
and held that he lacked the objective approach the court expects from an expert
witness.
4.38
This case demonstrates the range of negative consequences of an expert
adopting a biased approach. Here, the expert had for many years been concerned
with the potential health hazards associated with the radiation used in such
masts and so had considerable expertise on this issue and clearly his opinion
could have been of important evidential value. However, as a result of his “bold
and startling contention” about the expert reports, Kirkham J appeared very
reluctant to consider the rest of his evidence and ultimately rejected the
claimant’s argument. Considerably more weight may have been attributed to the
claimant’s theories had he outlined them in an objective, balanced manner.
4.39
It has also been argued that jurors are more likely to perceive a
professional expert witness to be an unbiased contributor to the case than an
ordinary witness.[746] This may
lead the judge or jury to be more wary of potential bias in the case of
ordinary witnesses, as the causes of this potential bias, such as a
relationship with the party, are more visible. Jurors may thus lower their
guard where expert witnesses, particularly scientific experts, are testifying,
in the (potentially erroneous) belief that such experts will give neutral
evidence.
(4)
Bias or Genuine Disagreement
4.40
It is clear that difficulties can occasionally arise in distinguishing
conscious bias from an honestly held dissenting opinion or genuine
disagreement. Determining whether or not a person genuinely holds a particular
opinion is clearly impossible, so where the opinion is not so extreme as to
amount to an obvious manifestation of bias, but instead comes within the range
of opinion which could be applied to a particular subject, it can be impossible
to discover the true intent of the expert; i.e. if they are merely adopting
that viewpoint to coincide with the party’s arguments.
4.41
The difficulty in distinguishing disagreement from bias is aggravated in
certain subject matters that can be considered ‘theory-rich disciplines.’[747]
The Commission has already discussed in Chapter 2 how new and emerging
disciplines or ‘sciences’ are emerging all the time, and determining what
amounts to a ‘junk science’ has proved problematic.
4.42
Even experts within a particular subject area may disagree on certain
theoretical aspects of their subject area, or on the appropriate way in which a
subject is to be analysed, and in some instances there may be more than one
possible reason for or interpretation of a particular result, all of which
makes it even harder to detect if the expression of a contradictory view by an
expert is legitimate or motivated by bias.
C
Unconscious Bias
4.43
Unconscious bias occurs where the expert sways their opinion in favour
of the instructing party without realising they are doing so, often
subconsciously feeling they owe a duty to do the best for the party they are
acting for. It is evident that frequently the line separating conscious and
unconscious bias will be blurred as both are rooted in the same causes.
4.44
In this jurisdiction Hardiman J expressly acknowledged the possibility
of an expert being unconsciously prejudiced in favour of their instructing
party where he explained that one of the functions of the system whereby each
party appoints their own expert is “to counter any unconscious sympathy with
one’s own patient or client.”[748]
4.45
Similarly, over a century ago Jessel LJ showed an understanding of the
potential for such bias in Abinger v Ashton[749]
where he pointed out that:
“…undoubtedly there is a natural bias to do something
serviceable for those who employ you and adequately remunerate you. It is very
natural, and it is so effectual that we constantly see persons, instead of
considering themselves witnesses, rather consider themselves as the paid agents
of the person who employs them.”[750]
(1)
Forensic Experts
4.46
Bernstein points out that testimony from forensic scientists is
particularly prone to the allegation of being unconsciously biased due to the
fact that most forensic scientists work for government crime labs and will
testify on behalf of the prosecutor, so they “naturally identify with the
prosecutors’ goal of convicting a particular defendant,” a fact that may affect
their conclusions.[751]
4.47
Glidewell J in R v Ward[752]
made reference to this fact;
“For lawyers and judges a forensic scientist
conjures up the image of a man in a white coat working in a laboratory,
approaching his task with cold neutrality, dedicated only to the pursuit of
scientific truth. It is a sombre thought that the reality is sometimes
different. Forensic scientists may become partisan. The very fact that the
police seek their assistance may create a relationship between the police and
the forensic scientists. And the adversarial character of the proceedings tends
to promote this process. Forensic scientists employed by the government may
come to see their function as helping the police. They may lose their
objectivity.”[753]
4.48
One of the clearest examples of outright bias on the part of experts
arose in the case R v Ward[754]
Here, a number of forensic experts in a bombing investigation and trial were
found to have been acting in a partisan manner as they concealed certain
results and data, misrepresented other results and placed a misleading picture
of the evidence before the jury. According to Glidewell J;
“In Miss Ward’s case the disclosure of scientific evidence
was woefully deficient. Three senior RARDE scientists took the law into their
own hands, and concealed from the prosecution, the defence and the court,
matters which might have changed the course of the trial.”[755]
4.49
More specifically, the presence of traces the chemical nitro-glycerine,
which was used in the manufacture of bombs, on the accused’s clothes was a
major factor leading to her conviction. However, the prosecution experts failed
to disclose the fact that traces of this substance could be present in such
innocuous substances as shoe polish. Furthermore, it was held that they grossly
exaggerated the significance of certain test results, lied to a defence expert
witness about these test results, and suppressed evidence in order to further
the prosecution case.[756]
4.50
As a result, the court concluded that the forensic evidence could not be
relied on and ultimately found the conviction to be unsafe and the accused had
her conviction quashed. Prior to the acquittal however, Judith Ward had served
18 years of a custodial sentence, highlighting the serious miscarriages of
justice that can result from bias on the part of expert witnesses.
4.51
Many commentators have expressed dissatisfaction with a situation
whereby the system of forensic science remains under state control, as this
could lead government scientists to become prejudiced, or at the very least
lead to the perception of partisanship.
4.52
Furthermore, even if they do not become prejudiced, their services are
only available to the prosecution, who therefore retain a monopoly on forensic
scientists, which leads to a very small pool of scientists available to the
defence.[757]
4.53
The recognition of the heightened potential for unconscious bias in the
context of forensic science has led many jurisdictions to reform the structure
of forensic evidence so that all forensic laboratories and scientists are made
independent of law enforcement and government agencies.
4.54
For example, in England, the Royal Commission on Criminal Justice
produced a report entitled “The Role of Forensic Science Evidence in Criminal
Proceedings” in 1993.[758] In this
report, the Royal Commission recommended that the government Forensic Science
Service be changed into
“…an agency whose expertise is available equally to the
Prosecution and Defence, and whose independence and efficiency are generally
recognized and respected by all.”
4.55
Pursuant to the recommendations in the Royal Commission report, in 1991
the Forensic Science Service (FSS)[759]
and the Metropolitan Police Forensic Science Laboratory, both of which had
previously been attached to the police, were given executive agency status,
making them independent from the police and competent to accept cases from both
the defence and the prosecution. [760]
4.56
In contrast, in Ireland the Forensic Science Laboratory (FSL) remains
under the auspices of the Department of Justice, Equality and Law Reform, thus
works solely for the Gardaí or other law enforcement agency, and for the
Director of Public Prosecution. The Laboratory is not available to carry out
examinations for private citizens; therefore it will not be available to the
defence in court proceedings. Its mission, as set out in its Strategy
Statement, is to;
“Assist in the investigation of crime and to service the
administration of Justice in an effective manner by a highly trained and
dedicated staff providing scientific analysis and objective expert evidence to
international standards.”[761]
4.57
In its Report on the Establishment of a DNA Database, the
Commission discussed the range of available options for custodianship of the
proposed DNA database.[762] The
Commission commended the FSL for its integrity, competence and efficiency, and
acknowledged that in practice it is independent from and not subject to
direction from the Gardaí.
4.58
However, at the same time the Commission expressed concern that the FSL
may be not be publicly perceived as being distinct from and independent of An
Garda Síochána, which may have a negative impact on the way in which profiles
are perceived as being generated.[763]
4.59
As a result, the Commission recommended the creation of an independent
statutory body which would incorporate the existing FSL and also a department
responsible for the custodianship of the DNA database, and which would be known
as the Forensic Science Agency. This body would be thus independent from law
enforcement and government agencies both in form and in structure.
4.60
It is submitted that the creation of such a body would also go a long
way towards improving public perception of forensic expert witnesses. Making
the body independent would lessen the possibility of ‘government forensic
scientists’ becoming, or being perceived as, partisan hired guns. Allowing the
body to operate independently, and thus to accept work from anyone, not just
law enforcement agencies, would also enable a wider range of clients to have
increased access to forensic services, and thus improve defence access to
forensic science evidence.
4.61
In the Consultation Paper the Commission provisionally recommended that
the new statutory body should require all clients to pay for services,
including Gardaí. However, after receiving submissions on this issue, in the
Report the Commission was of the view that a commercial model for the proposed
agency would be undesirable;
“The Commission is of the opinion that any such model would
require focused and detailed debate regarding the advantages and disadvantages
of what would be a far-reaching transformation of the forensic science service
in Ireland.”
4.62
It can be argued that this commercial element is very important in both
promoting transparency and improving public perception of the new agency as
being an independent body. This would also reduce the possibility of the
forensic scientists unconsciously viewing themselves as aligned with government
law enforcement agencies.
4.63
Furthermore, requiring all clients to pay for forensic services would
ensure equal access for both prosecution and defence to forensic services and
reduce the disparity of resources between prosecution and defence that could
affect the ability of defendants to challenge forensic expert evidence. It
could also be argued that making the service independent and profit-run would
have the effect of increased efforts to ensure high standards of objective
productivity as any loss of credibility or a public perception of bias would
have a detrimental effect on the business.
(2)
Misunderstanding of the Role of the Expert Witness
4.64
At other times, professionals purporting to offer their services as
expert witnesses may be unaware of their overriding duty to be an objective
aide to the court, and actually believe that they owe a paramount duty to the
instructing party to present the case in a light favourable to them.
4.65
Barr J gives a good example of where the expert witness confused his
role with that of an advocate.[764]
He cites a personal injuries case he was involved in where the expert witness
for the plaintiff was a medical examiner who testified that the permanent
shortening of the plaintiff’s leg as a result of the accident was likely to
lead to arthritic pain and long term pain and disablement. Barr J relates that
the cross-examination proceeded as follows:
“Mr. X, I have to put it to you that a number of times in
these courts, in answer to me, you have positively stated that anything less
than three-quarters of an inch shortening of a leg is of no practical
significance.”
The immortal reply was:
Mr. Fitzgerald, if I said that I was wrong!”[765]
4.66
Barr J goes on to explain the apparent anomaly in the expert’s view as
the result of a “fundamental failure…to appreciate that it was no part of his
function to don the mantel of advocate on his client’s behalf.”[766]
He goes on to explain:
“It appears that [the expert’s] approach to expert testimony
was that in circumstances where a divergence in established professional opinion
regarding possible sequelae of particular injuries existed, he was entitled to
look at the spectrum of opinion and advance the view most favourable to his
side of the particular case.”[767]
4.67
Another oft-cited example of an expert witness who was clearly mistaken
about the role of an expert witness is the following extract from Ladner v
Higgins,[768]
a decision of the Louisiana Court of Appeals:
“Is that your conclusion that this man is a malingerer?”
The expert responded,
“I wouldn’t be testifying if I didn’t think so, unless I was
on the other side, then it would be a posttraumatic condition.””[769]
4.68
More recently, the criticisms by Lady Clark of Calton in the Scottish
case Smith v Lothian University Hospitals NHS Trust[770]
are also demonstrative of the possibility of the expert being confused about
the extent of his role. This case also demonstrates that the courts have shown
themselves to be vigilant in the detection of inconsistencies in the theories
put forward by experts, which may be indicative of a lack of conviction by the
experts themselves in the theory.
4.69
Here, the defendant’s medical expert was criticised for displaying
evidence of partisanship where he attempted to give reasons for the plaintiff’s
paraplegia as being based on a defective dura and not the negligence of the
doctor by failing to halt the procedure when he felt resistance. Lady Clark
stated:
“Professor Miles appeared to search about towards the end of
evidence for hypotheses which even he said were untenable and incredible. I am
of the opinion that the reason he did this was because, in the course of
evidence, it became clear that the explanation which had been relied upon by
the defenders since 1977, and supported by him, was ill-founded.
4.70
Later in her judgment Lady Clark continued:
“For an expert witness to start speculating about new
theories in his own evidence without even communicating these theories to
counsel, is unusual and not helpful. It demonstrates in my opinion a failure to
fully understand his own role as an expert. In addition, when Professor Miles
made comments about the circumstances in which negligence might occur, he
appeared to be influenced by the number of times damage was caused rather than
the issue of care and skill in a particular case. I was also concerned by a
passage in his evidence which I interpret as indicating a partisan rather than
independent attitude. I refer in particular to his evidence summarised in
paragraph 65 where he appears to accept that contact with the spinal cord is
another opportunity to feel resistance. But when faced with the implication of
that answer he appears to alter his position. I was left with serious
reservations about his evidence…..In my opinion Professor Miles had a closed
mind about this and that is why he apparently sought out various theories,
which I reject.”
D
Selection Bias
4.71
A third form of bias is selection, or structural, bias. As a result of
the ability of any party to ‘shop’ for a suitable expert, the judge or jury are
not presented with a balanced overview of mainstream expert opinion on the
issue, but are given a specific slant of opinion from an expert that has
specifically been recruited due to his willingness to present the viewpoint
sought by that party.
4.72
The existing system of expert testimony enables a party to court
proceedings to consult as many potential experts as they wish until they find
the person who will support their case, or an expert who has a particular
reputation which indicates they will be sympathetic to their views. It is
possible therefore that prior to the selection of the party’s expert, several
other possible experts will have been consulted but rejected for not agreeing
with the arguments sought to be proven.
4.73
While this chosen expert may not be consciously prejudiced, there is an
inherent bias operating against the party’s argument in circumstances where it
has been previously rejected by a large number of experts in the field, and
accepted by only one, a fact that remains hidden from the judge or jury. This
results in a situation whereby, according the Bernstein “the jury will receive
a false sense that the issue is a very close one, when expert opinion actually
overwhelmingly favours one side.”[771]
4.74
The courts have realised the potential problem of selection bias since
the 19th century. Jessel LJ in Abinger v Ashton pointed out;[772]
“There is also this to be said against them, namely, that
their evidence is not the evidence of fair professional opinion. The men are
selected according as their opinion is known to incline….The consequence is you
do not get fair professional opinion, but an exceptional opinion by evidence selected
in this way.”
4.75
In the later case, Thorn v Worthing Skating Rink Co.[773]
Jessel LJ stated:
“A man may go, and does sometimes, to half-a-dozen experts. I
have known it in cases of valuation within my own experience at the Bar. He
takes their honest opinions, he finds three in his favour and three against
him; he says to the three in his favour, will you be kind enough to give evidence?
And he pays the three against him their fees and leaves them alone; the other
side does the same. It may not be three out of six, it may be three out of
fifty. I was told in one case, where a person wanted a certain thing done, that
they went to sixty-eight people before they found one.”
4.76
Selection bias is a direct result of the current system of appointment
of experts by the parties to a case. In the adversarial system, the judge’s
role is the neutral overseer of the dispute between the parties. Both sides are
given the right to advance their arguments as best they can, which necessarily
involves retaining experts whose views are congenial to each party’s version of
events. However, the desire to retain the advantages of the adversarial system
can lead to difficulties within the context of expert testimony.
E
Conflicts of Interest
4.77
It has already been explained that one of the main causes of deliberate
bias, or the perception of this, is the existence of a relationship or
connection between one of the parties to proceedings and the expert. This can
be a personal relationship, as can be seen in Liverpool Roman Catholic
Archdiocese v Goldberg,[774] or an affiliation with an organisation connected to one
of the parties, as in Toth v Jarman,[775]
and Mohammed v Financial Services Authority[776]
or a financial relationship, such as those cases where the expert was an
employee of one of the parties for example Galvin v Murray.[777]
4.78
As discussed above, the courts are reluctant to hold that evidence of a
connection between a party and an expert leads to an automatic exclusion of
bias as it has been repeatedly explained that such a finding would
significantly reduce the pool of potential experts available in a given case,
and lead to considerably more delays and expense.
4.79
Galvin v Murray[778]
in this jurisdiction reiterated that a person is not automatically excluded
from being an expert by reason of employment by one of the parties. Here it was
held that the existence of such a potential conflict of interest should be a
matter going to the weight to be accorded to the expert evidence, and not a
matter going to the admissibility. However, as already mentioned, this case
failed to deal with the extent of the obligation, if any, on a party or a
potential expert to disclose such a potential conflict of interest.
4.80
In England, the case of Toth v Jarman[779] dealt with the issue of whether or not an expert witness
needed to disclose a potential conflict of interest. In the course of this
judgment the court recognised such conflict could take many forms, including a
financial interest, a personal connection or an obligation such as a member or
officer of some interested body.
4.81
Potter LJ found that a conflict of interest should not automatically
disqualify an expert, as the key question is not the existence of a conflict of
interest but whether the expert’s opinion is independent. [780] However, the court went on to state
that a party who wishes to call an expert with a potential conflict of interest
should disclose details of that conflict at as early a stage in the proceedings
as possible. [781] Potter LJ explained the reasons for
this disclosure obligation:
“The obligation to disclose the existence of a conflict of
interest in our judgment stems from the overriding duty of an expert, to which
we have already referred and which is clearly laid down in CPR 35.3, and also
from the duty of the parties to help the court to further the overriding
objective of dealing with cases justly (CPR 1.3). The court needs to be
assisted by information as to any potential conflict of interest so that it can
decide for itself whether it should act in reliance on the evidence of that
expert.” [782]
4.82
Having examined the extensive literature in this area, it is clear
that a major issue is whether there should be a mandatory requirement imposed
on any expert witness to disclose any potential conflict of interest. It can
plausibly be argued that this would go a long way towards reducing potential
bias, or the perception of such bias, and ensure that the court is given an
informed opportunity to evaluate the exact weight to accord to the evidence of
a particular expert. It can also be argued that such an obligation is not
excessively onerous given the wide discretion a party is given in the choice of
expert from the outset. The Commission now turns to consider whether such an
approach should be adopted and the consequential recommendations for reform
that would flow from this.
F
Judicial Commentary on Bias and Partisanship
4.83
The courts well appreciate the potential for bias and deception on
behalf of experts and concern about the possible partiality or bias of expert
witnesses has formed the basis for many decisions and rules relating to the
admissibility of expert evidence. In many jurisdictions, there has been copious
judicial complaint about the effects that bias, prejudice, and mistaken belief
that an expert must act as the advocate of the instructing party, have had on
the giving of expert testimony.
(1)
Ireland
4.84
Although there are few Irish cases where expert bias has been expressly
dealt with, the courts in this jurisdiction do take a strict approach where
such bias is detected.
4.85
In McG (P) v F(A),[783]
Budd J cited with approval the approach taken by the English Court of Appeal in
Thompson v Thompson.[784] In that
case, the expert was a court appointed medical inspector appointed to examine
the parties’ arguments to help the court decide on the husband’s petition for
an annulment of marriage. The report of the medical examiner did not conflict
with the wife’s argument. At the hearing, however, the expert gave evidence
which supported the husband’s argument. It later emerged that the husband’s
solicitors had had considerable contact with the medical inspector. As a result
the Court of Appeal rescinded the annulment as there had been communication
other than through the court which, as Budd J noted in the Irish case McG
(P) v F(A), “gave the impression that something untoward had happened.”
4.86
Similarly, in News Datacom v Lyons[785]
Flood J refused the plaintiff’s application for an interlocutory injunction
stating that their case was based on the evidence of a ‘partisan expert’
without any scientific basis.
(2)
Australia
4.87
A survey conducted in 1999 on Australian Judicial Perspectives on Expert
Evidence[786] revealed
significant numbers of the judges surveyed said they had experienced some form
of bias or partisanship on the part of experts coming before them in the
Australian courts. The results amounted to approximately 1 in 4 judges - 27% -
saying they encountered bias ‘often,’ and 67% considering that experts are
‘occasionally biased.’[787]
4.88
Some of the individual comments of the judges were very critical of
expert witnesses. Sperling J commented:
“In the ordinary run of personal injury work and to a lesser
extent in other work, the expert witnesses are so partisan that their evidence
in useless. Cases then have to be decided on probabilities as best one can.”[788]
4.89
Similarly, Windeyer J in Clark v Ryan[789]
had the following view on potential bias in expert testimony:
4.90
“The acrid remarks in Taylor on Evidence concerning expert witnesses do
not lose significance when the expertise is spurious: “These witnesses are
usually required to speak, not to facts, but to opinions; and when this is the
case, it is often quite surprising to see with what facility, and to what an extent,
their views can be made to correspond with the wishes or the interests of the
parties who call them.””[790]
(3)
England & Wales
4.91
The majority of the above mentioned cases demonstrating the major causes
and manifestations of bias in the context of expert testimony are cases that
come from the courts of England and Wales. This highlights a keen understanding
by the English courts about the strong possibility for bias, and they have on
numerous occasions expressly acknowledged this possibility. In Abbey
National Mortgages Plc v Key Surveyors Nationwide Ltd & Ors[791]
the Court of Appeal remarked:
4.92
“For whatever reason, whether consciously or unconsciously, the fact is
that expert witnesses instructed on behalf of parties to litigation often tend
to espouse the cause of those instructing them to a greater or lesser extent,
on occasion, becoming more partisan that the parties.”[792]
4.93
This widespread concern that experts were acting in a partisan
fashion and were failing to maintain their independence from the instructing
party was one of the major instigators of the Woolf reforms. In his 1995
Interim Report Access to Justice Lord Woolf summarised the inherent
difficulty:
“Most of the problems with expert evidence arise because the
expert is initially recruited as part of the team which investigates and
advances a party's contentions and then has to change roles and seek to provide
the independent expert evidence which the court is entitled to expect….
In many cases the expert…has become, in the words of the
submission of the London Solicitors' Litigation Association to the Inquiry, “a
very effective weapon in the parties' arsenal of tactics.”[793]
4.94
The above mentioned cases also demonstrate that the courts in England
and Wales are vigilant in their detection and desire to eradicate bias. This
rigorousness is well demonstrated in Cala Homes (South) Ltd & Ors v
Alfred McAlpine Homes East Ltd.[794]
Here expert evidence was refused where bias was found to exist, even though it
was located in a source exterior to the issues involved in the case. Laddie J
castigated the evidence of the defence expert witness, a Mr. Goodall, which he
deemed to be nothing but a “partisan tract.”
4.95
It is interesting that the basis for the criticisms for the expert in
this case was not that his actual evidence displayed partisanship, but rather
an article written by the expert prior to the case in the Journal of the
Chartered Institute of Arbitrators in 1990 entitled “The Expert Witness:
Partisan with a Conscience.”[795] In this
article, which was revealed in Cala Homes during cross-examination, the
expert had outlined what he perceived to be a legitimate approach for an expert
witness to take when creating an expert report.
4.96
Goodall argued that just as the person operating the Three Card
Trick is not cheating, as those who opt to challenge him are ‘fair game,’ an
expert witness who, through “pragmatic flexibility” plays down or omits some
material consideration in order to present the data more favourable to the
instructing side does nothing wrong, as it is “only a suggestion about the
data, not an outright misrepresentation of them.” He was thus of the view that
the expert’s work required him to be a “candid friend” and a “hired gun” to the
instructing party.[796]
4.97
In Cala Homes Laddie J strongly criticised this approach as being
completely wrong and put forward a weighty counter-argument based on an
alternative interpretation of the role and duty of an expert witness. He argued
that the “function of a court of law is to discover the truth relating to the
issues before it.” Therefore the judge is not someone who has opted to play a
game of Three Card Trick. “He is not fair game. Nor is the truth.” He
acknowledged that a party is likely to choose an expert whose view reflects
that of the party, but at the same time that “the court is likely to assume
that the expert witness is more interested in being honest and right than in
ensuring that one side or another wins.
4.98
He rejected Goodall’s view of the expert as a hired gun, concluded that
evidence he sought to give in the case at hand could not be the independent
unbiased product it purported to be and was in fact drafted with the objective
of furthering the defence case by ignoring anything that harmed that objective.
He continued:
“Most witnesses would not be prepared to admit at the
beginning of cross examination, as Mr. Goodall effectively did that he was
approaching the drafting of his report as a partisan hired gun. The result is
that the expert's report and then his oral evidence will be contaminated by
this attempted sleight of mind. This deprives the evidence of much of its
value. I would like to think that in most cases cross-examination exposes the
bias. Where there is no cross-examination, the court is clearly at much greater
risk of being mislead.”[797]
4.99
Laddie J also acknowledged in this case that it is rare that an expert
will express an outright intention to give evidence that was biased in favour
of the instructing party, but the extracts from the article are disconcerting
if one is to assume that many experts, even those well-acquainted with the
giving of expert testimony, view their role in such terms.[798]
In this respect, this judgment is to be commended as it enabled the court to
firmly endorse that evidence of partisanship will not be tolerated and to
reiterate clearly that the overriding duty of the expert is the provision of
independent evidence to the court to enable it in its fact-finding role.
4.100
The consequences of a finding of bias on the part of an expert were
discussed to some extent by Jacob LJ in Pearce v Ove Arup Partnership Ltd
& Ors.[799]
In this case the court rejected as “preposterous fantasy” the claimant’s
allegation that the defendant – a world famous architect – had plagiarised a
design used in one of his works from the claimant’s final year project.
4.101
In the course of the judgment Jacob LJ gave a scathing criticism of the
claimant’s expert witness, finding that his “expert” evidence fell far beyond
the standards of objectivity required of an expert witness.[800]
He outlined in great detail the “blunder after blunder” made by the expert
witness and continued;
“So biased and irrational do I find his “expert” evidence
that I conclude he failed in his duty to the court….. He came to argue a case.
Any point which might support that case, however flimsy, he took. Nowhere did
he stand back and take an objective view as an architect as to how the alleged
copying could have been done. Mr Wilkey bears a heavy responsibility for this
case ever coming to trial - with its attendant cost, expense and waste of time,
including Mr Koolhaas’ loss of professional time.”[801]
4.102
Jacob LJ then went on to consider the consequences of a finding that an
expert had breached his duty. He acknowledged that there is no rule providing
for specific sanctions in such cases, nor does a specific accrediting body
exist to whom an expert could be referred. However, he found that there is “no
reason no reason why a judge who has formed the opinion that an expert had
seriously broken his Part 35 duty should not, in an appropriate case, refer the
matter to the expert's professional body if he or she has one.”
4.103
Jacob LJ therefore appeared quite ready to take proactive measures to
sanction an expert for displaying evidence of partisanship in the giving of his
expert testimony. It is submitted that the threat of such sanctions could help
to reduce the prevalence of such bias. Other ways in which this might be
accomplished will now be outlined.
G
Ways to Reduce Possibility of Bias
4.104
There are two discernible lines of thought on the presence of bias in
the current system of expert testimony. The first is that although prevalent,
the current adversarial structure is competent to detect the presence of bias
and partiality, and therefore no changes are necessary.
4.105
The alternative view is that the current structure is not only
inadequate in detecting bias, but furthermore that it is the inherent structure
of the system that encourages experts to become partisan hired guns. The
many concrete examples where courts have actively detected expert bias and
partisanship discussed above add to the argument in favour of reform, as it
would appear that the presence of expert bias, as the situation stands, remains
a distinct reality.
(1)
Argument One: The Current Adversarial Expert Testimony
System is Adequate to Combat Bias
4.106
The above mentioned cases all reveal the courts to be alive to the issue
of detecting bias, and although there have been notorious miscarriages of
justice these are rare, with most partisanship being exposed before or during
the trial process. There is therefore a strong argument to be made that there
are sufficient safeguards in the existing structure of the adversarial system
that are more than competent to detect the presence of partiality of an expert.
(a)
Experience &
Vigilance of the trial Judge
4.107
First, it is argued, the trial judge will normally have many years of
experience in evaluating the appropriate weight to accord to evidence and in
assessing the authenticity and motivations of the experts. The judge is
therefore well placed to consider any expert evidence coming before the court,
and where necessary to direct that little weight be given to an expert’s
evidence, or in some cases, strike out the expert’s testimony entirely.
4.108
Brandon LJ made reference to the strong capability of trial judges to
detect bias during the trial in Joyce v Yeomans[802]
where he said:
“In my judgment, even when dealing with expert witnesses, a
trial judge has an advantage over an appellate court in assessing the value,
the reliability and the impressiveness of the evidence of the experts called on
either side. There are various aspects of such evidence in respect of which the
trial judge can get the 'feeling' of a case in a way in which an appellate
court, reading the transcript, cannot. Sometimes expert witnesses display signs
of partisanship in a witness box or lack of objectivity. This may or may not be
obvious from the transcript, yet it may be quite plain to the trial judge.
Sometimes an expert witness may refuse to make what a more wise witness would
make, namely, proper concessions to the viewpoint of the other side. Here again
this may or may not be apparent from the transcript, although plain to the
trial judge. I mention only two aspects of the matter, but there are others.”[803]
4.109
However, the danger remains that once any evidence is brought before the
jury, despite subsequent judicial directions to accord it little or no weight,
the jury may find it difficult to do so. As a result, it would appear that
preventing bias prior to the trial process is what is necessary to more fully
eradicate the possibility of bias. This would seem to encourage a process
whereby the admissibility of all expert testimony be considered at a pre-trial
stage.
(b)
Examination-in-Chief
and Cross-Examination
4.110
Second, under the current structure of the adversarial system, both
parties are free to select the expert they wish and, in the interests of
promoting the ‘ equality of arms’ principle, both sides are entitled to cross
examine the other party’s expert.[804]
As Hardiman J stated in JF v DPP:[805]
“…it is not only common but routine for civil or criminal
parties against whom expert or professional evidence is to be deployed to
explore that evidence with the aid of experts retained on their own behalf, and
where possible to counter it with the oral evidence of such persons.”
4.111
Therefore all parties to litigation are given equal opportunity to
enlist the aid of experts. It can be argued that these experts are best placed
to discern the presence of bias, as they are less likely to be blinded by
science than the judge or jury, and thus more likely to detect if an expert
opinion has been more motivated by sympathy for the instructing party than a
rational analysis of the facts of the case.
4.112
Hardiman J acknowledged this where he explained that the reasons for
adducing an expert on the other side include “to counter any unconscious
sympathy with one’s own patient or client” and “to detect any unwarranted
assumptions or conclusions.”[806] Cala Homes (South) Ltd & Ors v Alfred McAlpine Homes
East Ltd, discussed above,[807]
is a good example of where cross-examination was used to reveal the expert’s
potential bias where an article written by the expert in question was adduced
by the other party which Laddie J used as the basis for a finding that the
expert wrote his report as “a partisan hired gun.”[808]
(c)
Disclosure Rules
& Modification of Litigation Privilege
4.113
The Rules of the Superior Courts (Disclosure of Reports and
Statements) 1998 (SI No 391 of 1998) require that both parties must
disclose all reports and statements of experts whom they intend to call as
witnesses, and those containing the ‘substance of the evidence to be adduced’
by them. The interpretation given to this provision by the Supreme Court in Payne
v Shovlin[809] means that
all reports, including preliminary expert reports not adduced at trial, must be
disclosed.
4.114
These rules will be discussed in greater detail in Chapter 6 but for the
purposes of the present discussion, it is submitted that in the context of reducing
bias the rules are very significant, as they ensure that the thought processes
of the expert witnesses in coming to their opinion are available to the other
side for scrutiny. This requires an expert to demonstrate their reasons for
reaching a particular opinion which greatly limits the potential for an
unreasoned, prejudiced opinion.
(2)
Argument Two: There is a need for the Amendment of the
Adversarial Structure
4.115
The structure in place for the giving of evidence within the adversarial
model is designed to give a rounded view of the facts in a particular case, by
allowing both sides to express their own opinion. In JF v DPP[810] Hardiman J explained that the purpose of allowing both sides
to adduce their own experts is to more fully inform the court in order to
obtain a clearer idea of the truth:
“It is done to ensure that everything is taken into account,
to counter any unconscious sympathy with one’s own patient or client, to ensure
that the latest techniques and interpretations are brought to bear, to detect
any unwarranted assumptions or conclusions and to test and challenge the other
side’s expert opinion insofar as that can properly be done.”[811]
4.116
However, it has been recognised by many commentators that system of the
giving of expert evidence does not fit in well with the adversarial model and
that in this way expert evidence is being used as a “weapon” by litigators.[812]
4.117
As Lord Woolf stated in his 1996 Final Report Access to Justice,
which led to the introduction of the Civil Procedure Rules in England:
“The purpose of the adversarial system is to achieve just
results. All too often it is used by one party or other to achieve something
which is inconsistent with justice by taking advantage of the other side’s lack
of resources or ignorance of relevant facts or opinions.”[813]
4.118
Others argue that the inherent structure of the adversarial system is
conducive to the prevalence of all forms of bias. Tompkins explains;
“…our system is adversarial. It is not an exercise in
consensus building, nor does it operate by consensus….what is being sought is
not the absolute or universal truth, but the rather different goal of justice
between the parties. Bias on the part of the parties and their lawyers is
accepted, at least to a limited extent. Independence on the part of expert
witnesses is expected, but not universally.”[814]
4.119
It is argued that in reality, it is rare that the court will be
presented with an objective overview of relevant information, as both sides
will seek to present those facts most favourable to his or her case. Langbein
expressed a very cynical view of expert witnesses when he stated;
If we had deliberately set out to find a means of impairing
the reliability of expert testimony, we could not have done much better than
the existing system of having partisans prepare witnesses in advance of trial
and examine and cross-examine them at trial.”[815]
4.120
A very fitting demonstration of the extent to which the court will
assume bias in the adversarial setting, or at least some sort of influence from
the instructing side, was given in the second appeal in R v Clarke.[816]
Amongst the various medical expert witnesses called for both sides here was a doctor
who, it was explained in court, had originally been hired by the Family Court
to carry out an independent review, as the appellant had since had a third
child. This review favoured the defence who then requested to rely on his
evidence. Kay LJ in the appeal made the following interesting comments;
“Recording these matters is not in any way to
suggest that other experts did not do their best to give evidence which was
independent of the side that instructed them but the value of an expert free
from any influence, however innocently manifesting itself, cannot be
discounted.”[817]
4.121
As can be seen the evidence of this ‘free from influence’ expert was
highly commended by the court. However, if the experts for both sides were
truly regarded as likely to carry out their duty to remain independent, it
should not matter for which side they are giving evidence. This decision shows
a keen understanding that, whether consciously or not, this will not always
occur and an expert is likely to be influenced, to some extent at least, by
their instructing party.
4.122
Academic commentators who have written about the problem of bias have
outlined a number of suggestions for reform aimed at reducing the presence of
bias, either deliberate or unintentional, in the giving of expert testimony.
4.123
These reforms will be discussed in greater detail in the following
chapters, however, it is useful to briefly flag them here.
(a)
The Single Joint
or Court Appointed Expert
4.124
One of the principal reforms suggested to counter the possibility of
bias, particularly selection bias, is the introduction of a system whereby a
single expert is appointed either by the court, or by agreement between the two
parties. Dwyer explains the reasoning behind this suggested solution:
“Since expert bias currently arises from favouring the case
of the instructing party, then by removing the instructing party from the
equation bias will also be removed.”[818]
4.125
Such a structure, it is argued, will ensure that the appointed experts
will be representative of the mainstream view of the range of experts in a
particular area, rather than the possibly minority view of a particular party
expert. It would also remove the likelihood of an expert feeling they owe an
allegiance to the instructing party due to the fact that they are being paid by
them, or due to the fact that they have become unduly sympathetic to their party’s
arguments as a result of the amount of time spent with them. Such a reform
would also eliminate the possibility of selection bias, or ‘expert shopping’
and, also reduce the possibility of potential conflicts of interest.
4.126
Several common law jurisdictions have recommended that the current
adversarial system of party-appointed experts be replaced by such a system. The
advantages and disadvantages of a system of court appointed experts, or a joint
expert appointed by agreement between the parties, will be discussed in greater
detail in the following chapter.
(b)
Prohibition on the Giving of Expert Evidence by Experts who
have a Pre-Existing Relationship with one of the Parties
4.127
Another reform suggested by many commentators aimed at reducing the bias
generated by an expert feeling they owe an allegiance to their instructing
party, is the reduction, as far as possible, of any opportunities for personal
involvement.[819] This could
involve for example preventing an expert from giving evidence where they have a
pre-existing relationship or other type of personal involvement with the party
to a case or with the issues involved in a case.
4.128
However, we have seen in Galvin v Murray[820]
that the Irish courts have decided that the fact of a pre-existing relationship
with a party such as an employer-employee relationship should not represent an
automatic bar on the giving of expert evidence. Instead, the fact of employment
is to be taken into account when assessing the weight to be given to the
evidence.
4.129
The approach in Galvin, it is submitted, is the correct approach
to take. Requiring a completely independent expert in all circumstances may
significantly aggravate the costs of litigation, and there is little certainty
that such ‘independent’ experts are likely to be any less biased. Furthermore,
particularly in this jurisdiction where in certain subject areas, the existing
pool of experts is likely to be quite small, any potential reform that is
likely to further decrease the number of possible experts is to be
avoided. A better approach is to examine the pre-existing relationship in
the context of the weight to be placed on the evidence.
4.130
However, one reform in this vein which may have the desired result of
limiting the development of an unhealthy affiliation between an expert and his
instructing party without reducing the possible pool of experts is the
introduction of a restriction on the amount of time an expert spends in court,
limiting court appearance to that reasonably necessary to give their testimony.
4.131
In the light of this discussion the Commission can now set out its
provisional recommendations in this area.
4.132
The Commission provisionally recommends that there should not be a
prohibition on the giving of evidence by experts who have a pre-existing
relationship with one of the parties to an action.
4.133
The Commission provisionally recommends that an expert witness should
be obliged to disclose the existence of any pre-existing relationship with a
party to a case or any other potential conflict of interest.
4.134
The Commission also provisionally recommends that the court should be
encouraged as far as possible to limit the amount of time spent by an expert
witness in court to that which is reasonably necessary to give their expert
evidence.
(c)
Amendment of the Duty owed by Experts to the Court &
Their Instructing Party
4.135
The Commission accepts that, regardless of any proposed amendments,
where an expert is selected and remunerated by a particular party, they may,
even unconsciously, be inclined to give evidence that is favourable to that
party. In this respect, it may be appropriate to instruct experts that their
overriding duty remains to the court, and that they must not omit from their
evidence any relevant facts which may have a bearing on their case, whether or
not they support or detract from the argument that the party is attempting to
put forward. It may also be appropriate to further instruct the experts
that they are simultaneously entitled to do all that is reasonably possible to
put forward their instructing party’s argument in the most favourable light
possible.
4.136
The Commission provisionally recommends that there should be no
change to the overriding duty owed by the expert witness to the court. The
Commission also provisionally recommends that the expert witness should
continue to owe a duty to the court which supersedes any duty owed to the
instructing party.
(d)
Greater Training
& Education of Experts about their Role & Duties
4.137
As discussed in the previous chapter, there is currently little judicial
or legislative guidance for expert witnesses in this jurisdiction about the
extent of their role and function. In the absence of such guidance, one can
forgive an expert witness who is under the mistaken belief that they must act
as the advocate of their instructing party.
4.138
Therefore, the imposition of additional emphasis on the role and duties
of an expert, for example through the creation of a formal code of ethics for
expert witnesses, would go a long way towards ensuring that experts are aware,
at the time they agree to act as an expert witness, of their overriding duty to
the court and the necessity to remain independent and impartial at all times.[821]
Another solution to this would be to require all expert witnesses to undergo
specialist training with a specialist accredited body to ensure that all
experts are fully aware of the essentials of their role and function. The
Commission discusses the possibility of introducing a system of training and
accreditation for expert witnesses in Chapter 6.
H
Conclusion
4.139
It is clear from the foregoing that bias has proved to be a real and
tangible problem in the giving of expert testimony in this jurisdiction. Such
bias can take a number of forms and its causes are diverse, making its
elimination more problematic.
The Commission considers that,
although the current adversarial system contains strong safeguards to detect
and prevent the prevalence of bias in the context of expert testimony, there
are a number of reform options that could be introduced to further reduce the
potential for bias. These potential reforms are discussed in the following
chapters. The range of options for the appropriate course of action to be
taken where an expert has found to be biased are discussed in Chapter 6.
Other reforms, more procedural in nature, but which may have the effect
of reducing the potential for bias are discussed in the next chapter.
CHAPTER 5
Procedural
aspects of the giving of expert testimony
A
Introduction
5.01
The previous chapters have discussed a range of possible reforms in
terms of the substantive nature of what constitutes expert evidence and what
constitutes an expert for the purposes of expert witnesses.
5.02
However, a comparative analysis of other jurisdictions reveals that
there are many reforms of a procedural nature, some radical and some relatively
minor, that may have a very beneficial impact on the current system of expert
testimony in terms of improving access to the courts and limiting delays,
expense and the possibility for abuse of the system.
5.03
This chapter commences in Part B by explaining why there is a need for
procedural as well as substantive reform of the expert testimony structure.
5.04
Part C examines a range of provisions that could be introduced to
facilitate and improve on arrangements relating to the selection and
appointment of expert witnesses.
5.05
Part D examines provisions which govern communication between expert
witnesses for both parties to a case, and between an expert witness and the
court and suggest reforms in this context which have the aim of greater
understanding between the parties and amongst the experts and thus reduce the
possibility of misunderstandings and delays.
5.06
Part E examines the provisions governing the report that will be created
by an expert witness containing their expert opinion. Finally Part F examines
some of the alternative structures to party appointed experts that are used in
other jurisdictions and the merits of adopting an alternative structure are
considered.
B
The Need for Procedural Reforms
5.07
Some of the criticisms levelled at the current system of expert
testimony have been alluded to in previous chapters. Problems such as
unreliable evidence and biased experts need to be addressed by the introduction
of substantive changes in the admissibility requirements governing the use of
experts in court.
5.08
However, other criticisms about the expert testimony system have also
been raised, which, it can be considered, necessitate the introduction of
procedural changes such as improved case management and structural reforms.
(1)
Expense
5.09
One of the main complaints raised about expert evidence is that, as Lord
Woolf put it, it is one of the “major generators of unnecessary cost in civil
litigation.”[822]
This was one of the principal reasons for his suggestion that expert evidence
should come under the complete control of the court. As Lord Woolf pointed out:
“Look at statistics about the average cost of hiring an
expert witness and the reality that this can lead to an unfair advantage for
some parties, particularly where large companies are engaging in litigation
with individuals.”
5.10
The fees charged by experts have also been the subject of much
commentary. It has been recognised that experts can charge exorbitant fees for
their services, which can affect the ability of parties to litigation to access
the necessary expertise. In 2004, Howlin summarised then recent Irish
statistics on the cost of expert witnesses;
“It was recently estimated that criminal legal aid cost the
State €37.35million in 2003, some €10 million of which was spent on expert
witness fees. This represents a jump of almost 30% from the previous year.[823]
Payments to expert witnesses represent a significant drain on the State’s
resources with respect to the numerous tribunals of inquiry. In 2000, the
Minister for Health and Children, agreed to provide £300,000 inclusive of VAT
to assist the Haemophilia Society[824]
of Ireland in retaining medical, scientific and technical experts to advise it
during the course of the Haemophilia Tribunal. In motor insurance cases, it has
repeatedly been asserted that lawyers’ and experts’ fees account for 40% of the
amount awarded.[825] It is
claimed that these expenses are major factors in the escalating costs of motor
insurance.[826]
5.11
A recent survey of the UK Register of Expert Witnesses revealed that
medical expert witnesses, who make up the majority of expert witnesses coming before
the courts, seek on average £171 per hour for the creation of an expert report,
and £1,163 per day for a court appearance.[827]
5.12
Expert evidence, viewed from the perspective of its cost, is a powerful
weapon which can be used by litigants to take advantage of the lack of
resources of impecunious litigants, and their resulting ignorance of relevant
facts or opinions.
5.13
High expenses can impose a significant barrier to potential litigants,
or may greatly stifle their claim, particularly in personal injuries cases,
where one may not have the same resources available as the other party, who is
often a corporate entity. The same problem arises in the context of family law
cases where the parties are predominantly private individuals and the ability
or inability to adduce expert evidence can have a significant effect on the
outcome of the case.
5.14
As a result, any reforms that are likely to reduce the cost burden of
expert testimony, thus reducing the possibility of biased experts enticed by
exorbitant fees and also promoting access to justice to all potential
litigants, are to be welcomed.
(2)
Delay
5.15
The point has been raised on numerous occasions that a proliferation of
experts in court can lead to a situation where litigation is unreasonably
prolonged by expert witnesses giving lengthy evidence on issues that are not
contested by the other party.
5.16
The expert is also required to prove their expertise in court by
outlining their relevant experience and qualifications. If this is not
contested by the other party it could be considered a waste of time within the
trial setting and might be more appropriately determined prior to the trial.[828]
5.17
Furthermore, there is the possibility that, in the absence of any
reliability requirement for admissibility, an expert witness may seek to use
the trial process as a way of advancing novel theories or ideas. New or
emerging forms of expertise are always likely to be the subject of much
contention and experts for the other party are likely to contest such theories
strongly.
5.18
There is the possibility that such contentious claims, which are
unlikely to form the subject matter of the central issues of the case, will
develop into a ‘trial within a trial’ situation, both generating much confusion
for the judge and jury and leading to long drawn out court proceedings.
C
Selection, Appointment and Examination of Experts
5.19
A party to litigation will be entitled to enlist the aid of an expert
witness once the presiding judge is satisfied that the issue is one which
necessitates expertise and the individual in question is suitably qualified to
be considered an expert. Beyond this however there is little judicial or
statutory control or guidance on the admission of expert witnesses. The
decision to adduce expert evidence and the choice of expert are completely
within the remit of the individual party.
5.20
Many expert witnesses will be recruited through word of mouth, where
they have given evidence in cases similar to the one in question. Lists of
available experts are also available in directories such as the
commercially-published Expert Witness Directory of Ireland. Furthermore, many
professionals also advertise their services as including the capacity to give
expert evidence on their companies’ websites.
5.21
The terms and conditions governing the appointment of such experts, and
the instructions they are given will be determined by the instructing party. It
can be argued however, that in the interests of maintaining high standards of
expert evidence across the board, there should be some governing principles
followed by all parties when hiring experts.
(1)
Disclosure of Intent to Adduce Expert Evidence
5.22
At present although it is a matter for the court whether expert evidence
can be adduced, in reality once a party can demonstrate a need for expert
evidence in the circumstances the court will not stand in the way of a party
who wishes to adduce expert evidence.
5.23
In recent times there have been some statutory amendments requiring a
party to disclose intent to adduce expert evidence. The disclosure requirements
differ depending on whether it is a civil or criminal case.
(a)
Civil Cases
5.24
Section 45 of the Courts and Court Officers Act 1995 grants
further powers to the Superior Courts and Circuit Court Rules Committees to
make orders relating to disclosure in personal injuries actions. Pursuant to
section 45 of the 1995 Act, Order 39 Rule 46 of the Rules of the Superior
Courts 1986 provides;
“The Plaintiff in an action shall furnish to the other party
or parties or their respective solicitors (as the case may be) a schedule
listing all reports from expert witnesses intended to be called within one
month of the service of the notice of trial in respect of the action or within
such further time as may be agreed by the parties or permitted by the court.
(b)
Criminal Cases
5.25
Although the prosecution is required to furnish the defence, prior to
the trial, with details of all witnesses intended to be called in the course of
the trial, the defence is not, subject to a few exceptions, required to furnish
such information.[829]
5.26
The 2007 Report of the Balance in the Criminal Law Review Group
recommended in their Final Report that the defence be required to furnish
statements of the expert or technical reports, or witness statements of
experts, which they propose to rely upon in court.[830]
(2)
Court Permission to Adduce Expert Evidence
5.27
As already mentioned, the permission of the court is necessary before a
party will be allowed to adduce expert evidence. However, in practice, each
party will enlist the aid of as many experts as they consider necessary and it
will be only at the trial stage that the court will, if it considers necessary,
rule that a particular expert should not be permitted to give evidence, either
because the evidence sought to be given is outside that which expert evidence
is permitted to be given, or because the witness put forward is not suitably
qualified to be considered an expert.
5.28
There is therefore, no requirement that a party seek formal court
approval prior to appointing an expert witness to give evidence. In other
jurisdictions, however, it is seen as important that express court permission
be required.
5.29
Such a rule would be beneficial in the context of case management as it
would enable the court to retain a certain degree of control over the quantity
of expert evidence in litigation and thus help save time and costs for parties.
5.30
In other jurisdictions, statutory provisions expressly provide that
court permission is needed by a party in order for an expert witness to be
permitted to give evidence.
(a)
England
5.31
In civil cases, Rule 35.4(1) of the Civil Procedure Rules 1998[831]
provides that no party may call an expert or put in evidence an expert’s report
without the permission of the court. Any party seeking to reply on expert
evidence must identify the field in which expert evidence is sought to be
relied on, and where practicable identify the name of the expert.[832]
5.32
In criminal cases, Part 24 of the Criminal Procedure Rules requires a
party wishing to adduce expert evidence in both the Magistrates and Crown Court
to give notice to the other party of the contents of such evidence. Where no
such notice is given, expert evidence can only be adduced if the court gives
its permission.[833]
(b)
Family Court of
Australia
5.33
The approach taken in England to court permission to give expert
evidence was followed in the Family Court of Australia in the Family Law Rules
2004. Part 15.5 requires the court to consider if expert evidence is necessary
in the circumstances, and if so, if the submitted expert is appropriate to give
such evidence.
5.34
Rule 15.52 sets out the relevant information that a party must provide
in their application to adduce expert evidence,[834]
and it also gives a comprehensive list of factors that the court must consider
when deciding whether or not to permit the expert to give expert evidence.
5.35
Such factors include the purpose behind Part 15.5, the impact the
appointment of an expert witness would have on the costs of the case, the
likelihood of the appointment expediting or delaying the case, the issues in
the case and their complexity, whether the evidence should be given by a single
expert witness rather than an expert witness appointed by one party only, and
the extent of the expert witnesses’ specialised knowledge, based on the
person’s training, study or experience.[835]
5.36
This provision provides very useful guidance to the court and provides a
firm checklist on which to base the court can base its decision to admit expert
evidence.
(c)
New South Wales
5.37
In its Report on Expert Witnesses, the Law Reform Commission of New
South Wales recommended the introduction of a ‘permission rule’ which would
require express permission from the court before evidence can be given. The
Commission argued that such a rule would:
“….assist in ensuring that the importance of the courts’
control expert evidence is unequivocally expressed and widely understood, and
thereby encourage the close judicial management of expert evidence.”[836]
5.38
The New South Wales Law Reform Commission also argues that such a rule
would ensure that any gaps in existing provisions relating to expert evidence
would be filled, affirming the court’s ultimate control over the admissibility
of such evidence where any uncertainty arises.[837]
5.39
In civil cases, Division 2 of the Uniform Civil Procedure Rules
introduced in 2005 now contains provisions relating to this. Rule 31.19
provides that a party seeking to adduce expert evidence “must promptly seek
court directions in that regard.”[838]
Rule 31.17 sets out that one of the main purposes of Division 2 is to ensure
that the court has control over expert evidence.
(d)
Conclusion
5.40
In light of the above discussion, the Commission sees merit in a
requirement, similar to that of the Family Court of Australia, that court
permission is expressly required before a party can adduce expert evidence, but
would prefer at present to invite submissions on the desirability of
introducing a general requirement to that effect.
5.41
The Commission invites submissions on whether there should be a general
requirement that court permission is expressly required before a party can
adduce expert evidence.
(3)
Pre-Trial Determination of Admissibility of Expert
Evidence and of Expertise
5.42
It has been noted earlier that deciding whether or not to allow expert
evidence on a particular issue, and whether a person put forward by a party to
act as an expert witness has sufficient skills and qualifications to be
considered an expert, are matters for the presiding judge during examination in
chief. An individual’s alleged expertise can be further challenged by the other
party during cross examination.
5.43
It can be argued that, in the interests of effective case management,
deciding whether expert evidence is necessary in relation to the issues in
question, and whether a person purporting to act as an expert witness is
sufficiently competent and qualified either academically or through experience
to be considered an expert in the issue in question, should take place at a
pre-trial stage, or at least outside of the courtroom itself and where
necessary, away from the jury. [839]
5.44
The Balance in the Criminal Law Review Group of the Department of
Justice considered the merits of pre-trial disposal of admissibility issues
relating to expert evidence in their final report. [840]
5.45
They considered the current system of swearing in a jury prior to
determination of admissibility issues to be “illogical and inconvenient” and
“only explicable by historical considerations which no longer apply.”
5.46
The Group also pointed out that the current system leads to the jury
“waiting in the jury room for long periods, or being sent away, and increases
the chances of jurors becoming unavailable during a long trial.”[841]
5.47
As a result of this, the Balance in the Criminal Law Review Group
recommended that admissibility issues should be determined in the first day or
days of the trial, and prior to the swearing in of a jury.
(a)
Advantages of
Pre-Trial Determination
· Such
a structure could reduce the length of trials as the admissibility of expert
evidence is less likely to be challenged in court where it has already been
held admissible at a pre-trial stage.
· Expense
could also be lessened as the amount of time an expert spends giving evidence
during the actual trial would be reduced. Expert witnesses would not need to
spend time outlining their knowledge or experience as it could be assumed that
once the judge (and/or jury) has been satisfied of this at the outset, their
status as an expert witness would be prima facie established.
· Furthermore,
once the proceedings reach the trial stage, the court’s attention would be
firmly focused on the expert opinion the witness is giving and determining the
credibility of this, and would not be sidetracked by secondary matters such as
the extent of their expertise. This would enable the judge or jury to
completely devote their assessment of the expert to considering whether or not
his expert opinion is to be accepted, and they would not be taken up by trying
to simultaneously assess whether the expert’s purported expertise is to be
accepted.
· Pre-trial
determination would also reduce the risk of undue weight being given to certain
evidence based on the fact that where evidence is adduced that is subsequently
discredited or ruled inadmissible, the jury might find it difficult in practise
to comply with the judge’s directions to disregard or attach little weight the
evidence.
(b)
Disadvantages of Pre-Trial Determination
· Although pre-trial disposal of
admissibility issues has theoretical potential to reduce delays and expense, in
reality this may not actually occur. It could be argued that introducing a
pre-trial stage would in fact merely add another layer to the judicial process
leading to second layer of costly advocacy.
· Both parties are likely to have
counsel and the experts present at the pre-trial stage to ensure the best
possible chance that the evidence and the expert will be admitted which may
lead to greater rather than lesser costs as expert witnesses normally charge
per hour for court appearances.
· In practice,[842]
outlining the qualifications and experience that indicate expertise does not
take long in most trials, particularly as the expert witness pool in Ireland is
so small that the trial judge will inevitably have the same experts appearing
before him or her again and again and so proof of expertise will be established
quickly in such instances.
· It could also be argued that having
a formal pre-trial admissibility procedure would make it difficult for a party
to adduce expert evidence at a later stage where it became apparent that
additional evidence was necessary.
· It may be impossible to determine
fully the relevancy and reliability of evidence without hearing it presented in
full in the context of the central issues of the case and without hearing the
cross examination by the other party. The court is likely to err on the side of
caution as a result which lessens the likelihood of a pre-trial procedure
effectively filtering all unreliable irrelevant evidence from the jury.
(c)
Conclusion
5.48
Based on the foregoing,
the Commission does not believe it necessary or appropriate to recommend the
introduction of a mandatory pre-trial system for the determination of
admissibility of expert evidence and expert witnesses.
5.49
The Commission believes
that such a procedure would not have any significant beneficial impact on delay
or expense within the trial process and in fact, could lead to additional
delays and expenses rather than reducing this.
5.50
However, the Commission
does consider that there may be certain cases where pre-trial determination may
be appropriate and beneficial. For example, where it is apparent that
determining the admissibility of certain evidence is likely to be unusually
time-consuming, such as where a party seeks to rely on a theory that is novel
or untested and so controversial.
5.51
The Commission
therefore provisionally recommends that determination of admissibility of
expert evidence and expert witnesses should continue to give their evidence
during the trial process but that the court should have the discretion to order
pre-trial determination where this is likely to have a significant impact on
the length and costs of a trial.
5.52
The Commission
provisionally recommends that determination of the admissibility of expert
evidence and expert witnesses should continue to take place during the trial
process but that the court should have discretion to order pre-trial determination
where this is likely to have a significant impact on the length and costs of a
trial.
(4)
Terms and Conditions of Appointment
5.53
At present where a party enlists the aid of an expert witness to advise
the party, to give evidence in court, or to create an expert report, the terms
and conditions governing the appointment of the expert are entirely at the
discretion of the parties involved.
5.54
It is clear however that in the interests of the effective and expedient
administration of justice, there should be clear and complete communication
between experts and those instructing them about the extent of their role and
the conditions governing their appointment, to ensure that both parties are
clear about the services required by the expert and the reason for their
appointment.
5.55
The issues that should be resolved from the outset include terms of
payment and expenses, extent of services required, time limits for giving of
report and the likely duration of trial, the consequences of withdrawal or
cancellation of the contract between the expert and the instructing party.
5.56
Encouraging initial communication between experts and their parties, and
recommending the adoption of some form of written confirmation of the terms and
conditions of appointment, greatly reduces the possibility of the expert being
confused about what they are being asked to do and when, and subject to what
recompense.
5.57
The UK Register of Expert Witnesses recognised the advantages of placing
the encouragement to agree terms of engagement on a formal footing where they
highly commended the inclusion by the Civil Justice Council of such a provision
in their Expert Witness Protocol;
“We also welcome the inclusion of §7.2 for the weight it adds
to our own calls for expert witnesses to adopt written terms of engagement at
the outset. So many of the helpline calls we handle arise from the potential
for confusion and misunderstanding that flows from an expert not putting in
place the proper contractual framework for an instruction”[843]
5.58
The Civil Justice Council’s Protocol for Expert witnesses advises that
terms of engagement are agreed from the outset and sets out some of the express
terms which should be agreed on. This provides a helpful model on which to
draft a similar provision in this jurisdiction.
a)
“the capacity in which the expert is to be appointed (e.g. party
appointed expert, single joint expert or expert advisor);
b)
the services required of the expert (e.g. provision of expert's report,
answering questions in writing, attendance at meetings and attendance at court);
c)
time for delivery of the report;
d)
the basis of the expert’s charges (either daily or hourly rates and an
estimate of the time likely to be required, or a total fee for the services);
e)
travelling expenses and disbursements;
f)
cancellation charges;
g)
any fees for attending court;
h)
time for making the payment; and
i) whether fees are to
be paid by a third party.”[844]
5.59
The UK Legal Services Commission also recommended that certain terms
must apply to the agreement between an expert and a party and set out these in
a Draft Terms of Appointment schedule in their report on The Use of Experts.[845]
5.60
This Draft requires the appointer to ensure that the purpose of the
appointment and what is required of the expert is discussed at the outset. The
appointer is also required to furnish the expert will copies of all relevant
protocols and practice directions with which both the appointer and the expert
must comply. The Draft also contains provision relating to ongoing
communication and instructions between the party and the expert, and terms
relating to payment.[846] This Draft
also provides a useful model on which to base any suggested reform in this
area.
5.61
In light of this discussion, the Commission has provisionally concluded
that parties to litigation should formally agree terms of engagement in writing
from the outset with expert witnesses instructed by them. This requirement
could be included as part of a draft code of guidance for expert witnesses and
their instructing parties. The Commission has also provisionally concluded that
any such guide should set out the specific issues which should be agreed, that
this should be a non-exhaustive list and invites submissions on what should be
included in this, particularly in the context of individuals not accustomed to
the giving of expert testimony.
5.62
The Commission provisionally recommends that parties to litigation
should formally agree terms of engagement in writing from the outset with
expert witnesses instructed by them, and that this requirement could be
included as part of a draft code of guidance for expert witnesses and their
instructing parties. The Commission also provisionally recommends that any such
guide should set out the specific issues which should be agreed, that this
should be a non-exhaustive list. The Commission invites submissions on what should
be included in such guide, particularly in the context of individuals not
accustomed to the giving of expert testimony.
(5)
Information and Instructions for Experts
5.63
It is clear that in order for an expert witness to give a comprehensive
and balanced examination of the issue calling for his expertise, he will be
required to have necessary information at his disposal.
5.64
It is also clear that expert witnesses will need to be kept advised of
all developments in the case which may affect them, for example where a date
has been set for trial.
5.65
Where there is confusion between the instructing party and the expert
witness this may have a significantly detrimental effect on the quality of the
expert testimony, as the expert may not have essential information relevant to
their opinion, or they may not have sufficient time due to a failure of
communication about deadlines.
5.66
It would be beneficial therefore to include in any draft code of
guidance for expert witnesses and their instructing parties a provision that
encourages ongoing communication between the party and the expert to the effect
that the expert has complete and up to date instructions on their task.
5.67
In England, some consideration has been given to the requirement that
parties give suitable and accurate instructions to expert witnesses hired by
them.
5.68
CPR r. 35.10 (3) requires an expert’s report to “state the substance of
all material instructions, whether written or oral, on the basis of which the
report was written.”[847] This
provision enables the court to assess the ability of the instructions and
information given to the expert to form the basis for a valid expert opinion,
and thus, encourages the giving of more comprehensive instructions and
information by the party.
5.69
The requirement to give full instructions is developed in the Civil
Justice Council’s Protocol for expert witnesses. Paragraph 7.5 provides that:
“Experts should be informed regularly about deadlines for all
matters concerning them. Those instructing experts should promptly send them
copies of all court orders and directions which may affect the preparation of
their reports or any other matters concerning their obligations.”
5.70
The UK Register of Expert Witnesses highly commended this provision of
the Civil Justice Council’s protocol, finding that it greatly facilitates the
giving of expert evidence.
“Of particular note is the duty imposed by §7.5. We have long
sought to have an express duty placed upon lawyers to pass on court orders,
etc., that have a relevance to expert witnesses in a case. It is tempting to
think that some lawyers attempt to conceal their own administrative failings
behind a refusal to disclose a court order. Experts should welcome the support
§7.5 give them in pursuing such requests.[848]
5.71
The Legal Services Commission Draft Terms of Appointment also requires
the appointer to notify the expert of any change throughout the appointment and
comply with the expert’s request for further information. [849]
5.72
On this matter, the Commission has provisionally concluded that there
should be included in any relevant guidance a provision recommending that full
information be given by the instructing party to expert witnesses throughout
the extent of their appointment by the party, in particular concerning
procedural requirements. Any such full instructions should not, of course, in
any way prejudice the general duties of the expert witness or seek to influence
how the expert prepares their evidence for court.
5.73
The Commission provisionally recommends the inclusion in any guidance of
a provision recommending that full information be given by the instructing
party to expert witnesses throughout the extent of their appointment by the
party, in particular concerning procedural requirements, which should not
prejudice the manner in which the expert witness prepares his or her evidence
for court.
(6)
Experts Costs and Fees
5.74
As already mentioned, the terms of appointment, which should be formally
agreed at the outset, should include terms of payment, which cover what
expenses should will be given and what charges will be incurred due to delay or
other breach of contract.
(a)
Types of Fees
5.75
One issue that arises in terms of the payment of experts is the type of
fees that can be charged. Most expert witnesses will charge a flat rate for
their services per hour, per day or per report. Most of the fee-related
disputes that arise between experts and the instructing party involve issues
such as whether or not the amount of time claimed by the expert was reasonable
or whether or not the work agreed was completed satisfactorily within the
specified time limits. Another common cause for dispute is the timing of the
payment of an expert’s fee for work completed.[850]
(i)
Ireland
5.76
In Britain, contingency and conditional fee payment options are also
occasionally offered by expert witnesses proffering their services. Such forms
of payment have generated considerable debate, not only within the context of
expert witnesses, but largely in relation to the fees that can be charged by
solicitors and barristers.
5.77
A conditional fee is one that provides that the expert’s fee is not
given (or will be given at a predetermined lower rate) where the case does not
end in success for the party.[851]
These have also been called ‘no win no fee’ or ‘no foal no fee’ arrangements.
The fee that will be awarded will be based on the rates normally charged by the
expert, subject to an increase in the case of success.
5.78
A contingency fee is one where the expert is paid a predetermined
percentage of the award recovered by the party. Both types are conditional on
the outcome of the case, but the contingency fee makes the amount of the
recovered award more important.[852]
5.79
In the context of solicitors, conditional fees are permitted and lawful
but contingency fees are unlawful. Section 68 (2) of the Solicitors
(Amendment) Act 1994[853] provides
that a solicitor cannot charge fees:
“….on the basis that all or any part of the charges to the
client are to be calculated as a specified percentage or proportion of any
damages or other moneys that may be or may become payable to the client, and
any charges made in contravention of this subsection shall be unenforceable in
any action taken against that client to recover such charges.”
(ii)
England
5.80
Contingency fee arrangements between solicitors and clients are
considered unlawful in England.
5.81
It was explained by Denning LJ that public policy considerations[854]
shape this ban, because of “the temptations to which it exposes [the
solicitor]. At best he may lose his professional objectivity; at worst he may
be persuaded to attempt to pervert the course of justice.”[855]
5.82
Greater detail was given on the public policy reasons underlying the
prohibition by Buckley J in Wallersteiner v Moir (No. 2):[856]
“First, in litigation a professional lawyer’s role is to
advise his client with a clear eye and an unbiased judgment. Secondly, a
solicitor retained to conduct litigation is not merely the agent and adviser to
his client, but also an officer of the court with a duty to the court to ensure
that his client’s case, which he must, of course, present and conduct with the
utmost care of his client’s interests, is also presented and conducted with
scrupulous fairness and integrity. A barrister owes similar obligations. A
legal adviser who acquires a personal financial interest in the outcome of the
litigation may obviously find himself in a situation in which that interest
conflicts with those obligations.”[857]
5.83
It is clear that the argument can be made that the same public policy
reasoning could apply to the relationship between an expert witness and the
instructing party. It could be considered that giving the expert witness an
interest in the outcome of the case, either in the form of conditional fee
arrangements or contingency fee arrangements could significantly compromise the
independence and impartiality of an expert, as they may be tempted to alter
their opinion to increase their fee.
5.84
It has been argued on several occasions in England that such fee
arrangements between expert witnesses and their clients should be prohibited,
bearing in mind the well established principle that an expert witness should
not have any interest in the outcome of the case.[858]
5.85
In R (Factortame Ltd) v Secretary of State for Transport (No. 8)[859]
the English Court of Appeal appeared to be of the opinion that while such
arrangements were not to be encouraged, they were at the same time not
considered to be unlawful. Lord Phillips MR made the following observations on
the issue:
“To give evidence on a contingency fee basis gives an expert,
who would otherwise be independent, a significant financial interest in the
outcome of the case. As a general proposition, such an interest is highly
undesirable. In many cases the expert will be giving an authoritative
opinion on issues that are critical to the outcome of the case. In such a
situation the threat to his objectivity posed by a contingency fee agreement
may carry greater dangers to the administration of justice than would the
interest of an advocate or solicitor acting under a similar agreement.
Accordingly, we consider that it will be in a very rare case indeed that the
Court will be prepared to consent to an expert being instructed under a
contingency fee agreement.”[860]
5.86
The issue was also considered in Davis v Stena Line Ltd.[861] Here, the defendant argued that the claimant’s expert
evidence should not be admitted due to the fact that the funding arrangements
between the claimant and his expert had proceeded on a ‘no win no fee’ basis.
5.87
Forbes J held that the evidence should be admitted, however, he
justified this decision largely on the fact that neither the expert nor the
claimant’s counsel had appreciated that experts should not be retained on
contingency basis. Furthermore, once they had realised this they had altered
the fee arrangement accordingly. As a result Forbes J rejected the contention
that the expert evidence “might have been influenced, biased or lacking in
objectivity as the result of the expert's apparent financial interest in the
outcome of the case.”[862]
5.88
The comments of Forbes J imply that the evidence in this case was only
admitted due to the fact that the parties involved were not aware that
contingency fee arrangements were not appropriate, and thus that in a case
where both parties intended such an arrangement, the expert evidence might be
ruled inadmissible as such an arrangement creates a presumption of bias or a
lack of objectivity.
5.89
Despite the above judicial commentary criticising conditional fee
arrangements with expert witnesses, there has not yet been a common law or
statutory ban on such arrangements. However, some of the guidance protocols
governing expert witnesses in England have made reference to this.
5.90
Although the CPR Rules and its supplementing Practice Direction contain
no provisions relating to the payment of experts, the Civil Justice Council’s
Protocol for Experts, which aims to give guidance for their duties under the
CPR rules, does provide that expert’s fees should not be on a contingency
basis. Paragraph 7.2 states;
“Payments contingent upon the nature of the expert evidence
given in legal proceedings, or upon the outcome of a case, must not be offered
or accepted. To do so would contravene experts' overriding duty to the court
and compromise their duty of independence.”[863]
5.91
Furthermore, many of the codes of guidance introduced by the various
professional bodies governing expert witnesses contain similar provisions. For
example, The Joint Code of Practice of The Academy of Experts and the Expert
Witness Institute provides;
“An Expert who is retained or employed in any contentious
proceeding shall not enter into any arrangement which could compromise his
impartiality nor make his fee dependent on the outcome of the case nor should
he accept any benefits other than his fee and expenses.” [864]
(b)
Court Authority
to Cap Fees
5.92
The burgeoning cost of expert testimony has also led some commentators
to question the appropriateness of giving the court the ability to cap an
expert’s fees where it considers necessary. This could have the beneficial
effect of preventing experts from leading a professional expert witness career
based on the high fees that can be earned.
5.93
In England, CPR r. 35.4 (4) gives the court the power to limit expert’s
fees and expenses that a party seeking to rely on an expert can recover from
another party. The Commission does not consider at this stage that it is
necessary to express a view on this aspect of the CPR.
(c)
Conclusion
5.94
While the issue of costs could be left for consideration in case law, as
in the United Kingdom, the Commission has come to the provisional conclusion
that it would be preferable to introduce an express provision prohibiting fee
arrangements which are conditional on the outcome of a case as such
arrangements are likely to impede the independence of the expert witness.
5.95
The Commission provisionally recommends that there should be an express
provision prohibiting fee arrangements with expert witnesses which are
conditional on the outcome of a case, as such arrangements are likely to impede
the independence of the expert witness.
D
Communication between Experts and between Experts and the
Court: Pre-trial and At the Hearing
5.96
At present there are no formal arrangements governing communication
between experts prior to and during the trial process, or any conditions
governing the ability of an expert to communicate with the court for any
reason. Such communication could result in more effective and smoother running
of the use of experts.
(1)
Pre-Trial Meetings between Experts
5.97
An increasingly common feature in any suggested recommendations for
reform of the expert testimony system is the provision for pre-trial expert
negotiations or meetings in order to decide on non contentious issues with the
aim of narrowing contentious issues and thus reducing the time spent on cross
examination.
5.98
In these pre-trial meetings, both parties should exchange expert reports
and from this determine if they will need to ask each other questions, clarify
certain points, or raise certain points about the other’s reports thus reducing
contentious issues as far as is possible prior to the trial.
5.99
This meeting could also act as a forum for considering alternative
dispute resolution options, particularly in the context of family law cases.
The court could be permitted, where it considers necessary and appropriate, to
refer any point of issue to mediation for resolution rather than expert
witnesses battling it out.
5.100
As the Australian judge Williams J acknowledged, no expert likes to
concede a point during cross examination, so that, particularly where there are
several experts, the litigation is often side tracked. No professional likes to
make a concession when faced with the report from an expert from the other
side. This, he argues, can lead to false issues being raised and much time
spent endeavouring to resolve them.
“The dispute between the experts generates a trial within a
trial at the expense of the litigants.”[865]
5.101
The well known observation of Tomlin J. in Graigola Merthyr Co Ltd v.
Swansea Corporation[866] is also relevant:
“…long cases produce evils... In every case of this kind
there are generally many ‘irreducible and stubborn facts’ upon which agreement
between experts should be possible and in my judgment the expert advisers of
the parties, whether legal or scientific, are under a special duty to the court
in the preparation of such a case to limit in every possible way the
contentious matters of fact to be dealt with at the hearing. That is a duty
which exists notwithstanding that it may not always be easy to discharge.” [867]
5.102
Referring to this case, Toulmin J in Anglo Group Plc v Winther Brown
& Co Ltd and BML (Office Computers) Ltd[868]
stated:
“The Woolf reforms, building largely on the approach which
was developed in this Court and the Commercial Court (with the support and
encouragement of the users of these Courts) sees no inherent conflict between
dispute resolution by parties in the course of the procedure and dispute
resolution by the court at a full hearing at the end of the procedure. Dispute
resolution in the course of the procedure may be achieved with assistance
outside the court procedure by way of independent mediation; but it may also be
achieved by techniques of case management pioneered in this court, e.g. by
"without prejudice" meetings of experts, joint statements of experts
setting out the matters on which they agree or disagree, early neutral
evaluation or by the appointment of a single jointly appointed expert who may
effectively resolve the technical issue or issues which are preventing the
parties from settling their disputes; or by a combination of constructive case
management and mediation. Many of these innovations underline the importance of
experts retained by the parties acting at all stages as independent experts in
order to assist the parties in reaching a resolution of their disputes or in
narrowing the issues in dispute thus saving time and costs at trial”
5.103
It is submitted that experts might be more willing to make concessions
and compromises where this occurs outside the accusatorial framework of cross
examination. The expert would feel under less pressure to defend his viewpoint
if it is not being discussed in terms of a direct conflict with the other side.
(a)
Ireland
5.104
Although there are no general provisions relating to pre-trial meetings
between expert witnesses in this jurisdiction, some recent reforms in this vein
have taken place in the context of experts used in the competition and
commercial courts.
5.105
Order 63B of the Rules of the Superior Courts 1986,,[869] which deals with pre-trial procedure in
Competition Proceedings, provides that a judge may, at the initial directions
hearing, give any of a number of listed directions to facilitate the
determination of the proceedings, including, in the context of expert witnesses:
“directing any expert witnesses to consult with each other
for the purposes of –
(a) identifying the issues in respect of which they intend to
give evidence,
(b) where possible, reaching agreement on the evidence that
they intend to give in respect of those issues, and
(c) considering any matter which the Judge may direct them to
consider, and requiring that such witnesses record in a memorandum to be
jointly submitted by them to the Registrar and delivered by them to the
parties, particulars of the outcome of their consultations
provided that any such outcome shall not be in any way
binding on the parties.[870]
5.106
The proviso in the latter part of this provision is very significant, as
it facilitates greater disclosure between experts as they will not be bound by
any comments they make which could potentially conflict with the opinion they
give in court. Such full and frank disclosure is essential if the pre-trial
negotiations are to result in any significant reduction in the contentious
issues left to be dealt with at trial.
5.107
Order 63A of the Rules of the Superior Courts 1986,[871]which
deals with Commercial Court proceedings, contains similar provisions but,
notably, also requires witnesses to give a written summary of the negotiations:
“…requiring that such witnesses record in a memorandum to be
jointly submitted by them to the [Court] Registrar and delivered by them to the
parties particulars of the outcome of their consultations.”[872]
(b)
England
5.108
In England, the convening of pre-trial meetings between all expert
witnesses was originally provided for in Order 38 rule 38 Rules of the Superior
Court. This sought to encourage such meetings by providing that the court can
order a ‘without prejudice’ meeting between the experts.
5.109
It was held in Stanton v Callaghan[873]
that both parties have immunity from suit regarding the discussions in such
meetings, which helped to further encourage such meetings. In this case it was
held that an expert witness could not be sued for agreeing to a joint experts'
statement in terms which the client thought detrimental to his interests.
5.110
The ability to convene pre-trial meetings on a ‘without privilege’ basis
provided for Rule 38 RSC has now been incorporated into Part 35.12 of the Civil
Procedure Rules. CPR r.35.12 provides:
(1) The court may, at any stage,
direct a discussion between experts for the purpose of requiring the experts to
(a) identify and discuss the
expert issues in the proceedings; and
(b) where possible, reach an
agreed opinion on those issues.
(2) The court may specify the
issues which the experts must discuss.
(3) The court may direct that
following a discussion between the experts they must prepare a statement for
the court showing –
(a) those issues on which they
agree; and
(b) those issues on which they
disagree and a summary of their reasons for disagreeing.
(4) The content of the discussion
between the experts shall not be referred to at the trial unless the parties
agree.
(5) Where experts reach agreement
on an issue during their discussions, the agreement on an issue during their
discussions, the agreement shall not bind the parties unless the parties
expressly agree to be bound by the agreement.”[874]
5.111
The procedures to be followed when convening pre-trial meetings are set
out in great detail in the Guidance protocol of the Civil Justice Council. This
also explains the purpose for such meetings;
“18.3 The purpose of discussions between experts should be,
wherever possible, to:
a)
identify and discuss the expert issues in the proceedings;
b)
reach agreed opinions on those issues, and, if that is not possible, to
narrow the issues in the case;
c)
identify those issues on which they agree and disagree and summarise
their reasons for disagreement on any issue; and
d)
identify what action, if any, may be taken to resolve any of the
outstanding issues between the parties..”[875]
5.112
The extent of the without privilege immunity given by CPR r.35.12 was
discussed in Aird & Anor v Prime Meridian Ltd.[876]
Here, both experts had signed a statement stating what was agreed and what was
disagreed, which, the court held would ordinarily be sufficient to waive the
privilege.
5.113
Coulson QC went on to find that, on the facts, if the claimants' expert
had known that the joint statement was to be used in the litigation if the
mediation was unsuccessful, then he would not have signed it.
5.114
This case shows willingness on the part of the court to retain the
privilege where possible, thus promoting as far as possible free communication
between experts prior to the trial.
(c)
Conclusion
5.115
In light of the above discussion, the Commission has provisionally
concluded that it would be appropriate for the court and the parties to be
empowered to encourage pre-trial meetings between experts. The Commission does
not have a fixed view at this stage on whether, for example, where minor cases
are at issue, the discussion could be by telephone or in written form (in the
interests of reducing expenses and delays).
5.116
The Commission provisionally recommends that it would be appropriate for
the court and the parties to be empowered to encourage pre-trial meetings
between experts, and invites submissions on the form or forms this might take.
(2)
Experts Questions
5.117
Any provisions introduced to provide for pre-trial communication between
experts should include a procedure whereby experts should have the ability to
put questions to the other party, subsequent to receipt of that party’s initial
expert report, where they are uncertain about elements contained in the report,
or where they feel relevant information is absent from the report. Both parties
should be required to answer questions put to them by the opposing side, and
these answers should then form part of the final expert report.
5.118
In England, provision is made for a party to put written questions to
the other party in CPR r. 35.6. This is a comprehensive provision which
outlines the procedure for and consequences of such questions. CPR r. 35.6
provides;
35.6 Written questions to experts
(1) A party may put
to –
(a) an expert instructed by another party; or
(b) a single joint
expert appointed under rule 35.7, written questions about his report.
(2) Written questions under paragraph (1) –
(a) may be put once only;
(b) must be put within 28 days of service of the expert’s
report; and
(c) must be for the purpose only of clarification of the
report, unless in any case –
(i) the court gives permission; or
(ii) the other party agrees.
(3) An expert’s answers to questions put in accordance with
paragraph (1) shall be treated as part of the expert’s report.
(4) Where –
(a) a party has put a written question to an expert
instructed by another party in accordance with this rule; and
(b) the expert does not answer that question, the court may
make one or both of the following orders in relation to the party who
instructed the expert –
(i) that the party may not rely on
the evidence of that expert; or
(ii) that the party may not
recover the fees and expenses of that expert from any other party.
5.119
In this jurisdiction, the Rules of the Superior Courts (Disclosure of
Reports and Statements) 1998 (SI No. 391 of 1998) require both parties’
experts to disclose their reports within a certain time limit prior to the
trial. However, no provision is included that enables the parties to put
questions to each other about the contents of the report. The Commission
has reached the provisional view that both parties should be required to answer
questions about the contents of their expert reports prior to the trial when
these are put by the other party.
5.120
The Commission provisionally recommends that both parties be required to
answer questions about the contents of their expert reports prior to the trial
when these are put by the other party.
(3)
Court Directions
5.121
It may also be the case that the court, rather than the legal counsel
instructing an expert, may be better placed to advise an expert on a particular
issue. This may ensure that the expert witness carries out his role to the
satisfaction of the court thus reducing the chance of his evidence later being
ruled inadmissible.
5.122
Based on this consideration, there is a certain merit to the suggestion
that there should be a provision whereby the expert may apply to the court for
assistance or directions to enable him to carry out his function as
expert
5.123
In England, this is provided for in CPR r 35.14 which provides;
“35.14 Expert’s right to ask court for directions
(1) An expert may file a written request for directions to
assist him in carrying out his function as an expert.
(2) An expert must, unless the court orders otherwise,
provide a copy of any proposed request for directions under paragraph (1)–
(a) to the party instructing him,
at least 7 days before he files the request; and
(b) to all other parties, at least
4 days before he files it.
(3) The court, when it gives directions, may also direct that
a party be served with a copy of the directions.”[877]
5.124
On this issue, the Commission has concluded that it might be appropriate
for an expert witness to put a request to the court for information about
issues relating to how he or she can satisfactorily fulfil their role and
duties as an expert witness where they feel they have not received sufficient
information from those instructing them. This should not, of course, be allowed
to give rise to delay, in particular where there have been proper pre-trial
meetings. For this reason, the Commission would welcome submissions on this
point.
5.125
The Commission invites submissions on whether it would be appropriate
for an expert witness to put a request to the court for information about
issues relating to how he or she can satisfactorily fulfil their role and
duties as an expert witness where they feel they have not received sufficient
information from those instructing them.
(4)
Disclosure of all Relevant Information
5.126
In some cases, particularly where sensitive issues are involved, expert
witnesses may find it difficult to access all relevant information necessary to
formulate an expert opinion, as the parties may be reluctant to reveal such
information.
5.127
However, it is also recognised that in order for a party to be given a
fair trial, their expert witness must be entitled to full disclosure of all
necessary documents and materials. Equality of access to relevant information
to all parties is essential.
5.128
It may therefore be desirable to introduce a provision to allow an
expert witness who is being prevented from accessing essential documents to
apply to the court for an order requiring the other party to disclose such
documents.
(a)
Ireland
5.129
A number of Irish cases have considered access of a party to information
and the ability of a party’s medical expert to conduct their own examination of
an individual.
5.130
For example in McGrory v ESB[878] the plaintiffs refused to permit the plaintiff’s medical
adviser to be questioned by the defence expert witness. Keane CJ stated, in
ordering a stay in the proceedings until such time as the plaintiff consented
to the defendant’s medical adviser consulting with his medical advisers, that:
“The plaintiff who sues for damages for personal injuries by
implication necessarily waives the right of privacy which he would otherwise
enjoy in relation to his medical condition. The law must be in a position to
ensure that he does not unfairly and unreasonably impede the defendant in the
preparation of his defence by refusing to consent to a medical examination.
Similarly, the court must be able to ensure that the defendant has access to
any relevant medical records and to obtain from the treating doctors any
information they may have relevant to the plaintiff’s medical condition,
although the plaintiff cannot be required to disclose medical reports in
respect of which he is entitled to claim legal professional privilege.”
5.131
Similarly, in JF v DPP[879]
the applicant, who was accused of indecent assault on the respondent, sought to
have certain paragraphs of the statement of opposition struck out as the
respondent had refused permission to be medically examined by a psychologist
appointed by the applicant for the purposes of ascertaining the reasons for
delay in bringing the complaints.
5.132
The applicant argued that the inability to have an independent
psychiatric evaluation of the respondent prevented him from countering the
respondent’s expert with his own expert evidence, which meant he would be “at a
wholly unjustified disadvantage” in fighting the proceedings. The applicant
cited Re Haughey,[880] Maguire v Ardagh[881] and McGrory v ESB[882] in support of his argument that he should be entitled to
an independent examination.
5.133
The applicant’s arguments were accepted by the Court which held that in
the interests of fair procedures and the equality of the two sides - or égalité
des armes[883] principle - that the applicant had a right to counter
the respondent’s expert evidence with his own expert evidence, and this
necessitated being given the opportunity to personally assess the individual.
(b)
England
5.134
In England, there is also much case law to the effect that a party
cannot withhold information or access to witnesses from another party’s expert
witness.[884] The
reasons for this were explained by Lord Denning MR in Harmony Shipping Co v
Saudi Europe;[885]
“So far as witnesses of fact are concerned, the law is
as plain as can be. There is no property in a witness. The reason is because
the court has a right to every man's evidence. Its primary duty is to ascertain
the truth. Neither one side nor the other can debar the court from ascertaining
the truth either by seeing a witness beforehand or by purchasing his evidence
or by making communication to him. In no way can one side prohibit the other
side from seeing a witness of fact, from getting the facts from him and from
calling him to give evidence or from issuing him with a subpoena.”
5.135
The Civil Procedure Rules 1998 have further strengthened the ability of
a party to access all necessary information. CPR r. 35.9 provides that where
one party has access to information which is not readily available to the other
party, the court may direct the party who has access to the information to
prepare, file and copy to the other party a document recording the information.
5.136
The Civil Justice Council’s protocol tempered the effect of this
provision by recommending that it only be used where necessary;
“If experts require such information which has not been
disclosed, they should discuss the position with those instructing them without
delay, so that a request for the information can be made, and, if not
forthcoming, an application can be made to the court. Unless a document appears
to be essential, experts should assess the cost and time involved in the production
of a document and whether its provision would be proportionate in the context
of the case.”[886]
(c)
Conclusion
5.137
On this issue, the Commission has concluded that it might be appropriate
to introduce a provision enabling the court to order that a party disclose all
necessary information to the other party where this is not forthcoming and
where needed in order to create a comprehensive expert report. The Commission
would welcome submissions on this point.
5.138
The Commission invites submissions as to whether the court should be
empowered to order that a party disclose all necessary information to the other
party where this is not forthcoming and where needed in order to create a
comprehensive expert report.
E
Expert Reports
5.139
Expert witnesses give their opinion in the form of report, which is
accessible by the other party, and which will form the basis of the opinion
given in court.
5.140
Significant statutory amendment has taken place in recent years in this
jurisdiction to the effect that expert reports must be disclosed to the other
party prior to the trial.
5.141
However, there is comparably little guidance relating to the requisite
content of such reports. This is surprising, considering that the report forms
the fundamental basis of all expert evidence.
(1)
Disclosure of Expert Reports & Rules of Privilege
5.142
Significant exceptions to the privilege rules have been made in the
context of expert reports in civil proceedings, as it is considered necessary
in the interests of a fair trial that neither party be able to ‘ambush’ the
other so both party should be aware, prior to the trial, of the contents of all
expert reports of the other party.
5.143
In comparison with the relative lack of judicial or legislative
intervention into other aspects of the system of expert testimony, the rules of
disclosure applying to the reports of expert witness have received considerable
legislative and judicial scrutiny in this jurisdiction.
(a)
Disclosure in Personal Injuries Proceedings
5.144
A significant exception to legal professional privilege was added to the
Rules of the Superior Courts 1986 by the Rules of the Superior Courts
(Disclosure of Reports and Statements) 1998 (SI No. 391 of 1998).[887]
These replaced the Rules of the Superior Courts (Disclosure of Reports and
Statements) 1997 (SI No 348 of 1997), which had been criticised as imposing
excessively onerous disclosure requirements and huge practical difficulties on
parties to personal injuries proceedings.[888]
5.145
The 1998 Rules aim to prevent ‘trial by ambush’ and provide that in High
Court personal injuries cases, the plaintiff must disclose within one month of
the service of the notice of trial a schedule of all reports and statements of
experts whom they intend to call as witnesses, that contain the ‘substance of
the evidence to be adduced’ by them.[889]
5.146
Within seven days of receipt of this schedule, or such time as is agreed
by the parties or the court, the defendant must furnish to the plaintiff and
any other parties a schedule of all reports of expert witnesses intended to be
called. Within seven days of receipt of the defendant’s schedule the parties
are required to exchange copies of all reports listed in the relevant
schedules.
5.147
The definition of report includes that give by those experts specified
and ‘any other expert whatsoever,’ and so would appear sufficiently broad to
encompass any person who, in the court’s opinion, has a particular degree of
expertise in the subject matter in question.[890]
5.148
The definition of report also includes all materials used by the expert
in coming to his or her opinion such as “maps, drawings, photographs, graphs,
charts, calculations or other like matter referred to in any such report.”[891]
5.149
Rule 45(2) requires the parties to exchange, within one month of the
service of the notice of trial or other such time agreed by the court or the parties,
the information and statements referred to in section 45 (1) (a) (iii), (iv)
and (v) of the Courts and Court Officers Act 1995 namely:
the
names and addresses of all witnesses intended to be called to give evidence as
to facts in the case,
a full statement of all items of special damage together with
appropriate vouchers, or statements from witnesses by whose evidence such loss
would be proved in the action, and
a written statement from the Department of Family and Social
Affairs showing all payments made to a plaintiff subsequent to an accident or
an authorisation from the plaintiff to the defendant to apply for such
information
(i)
Withdrawal of Report or Statement & Disclosure
5.150
The precise obligations imposed by the 1998 Rules were considered in Kincaid
v Aer Lingus Teoranta.[892]
Here, the defendant had listed an orthopaedic surgeon in his schedule of
experts, but when furnishing his experts’ reports to the plaintiffs omitted to
send a report from the surgeon as he informed the plaintiffs he no longer
intended to call the surgeon at trial.
5.151
The plaintiff claimed, on a literal interpretation of Rule 46(6), that
the defendant was not entitled to withdraw reliance on the expert until he had
furnished reports from all experts listed in the schedule. Rule 46(6) provides:
“Any party who has previously delivered any report or
statement or details of a witness may withdraw reliance on such by confirming
by letter in writing that he does not now intend to call the author of such
report or statement or such witness to give evidence in the action. In such
event the same privilege (if any) which existed in relation to such report or
statement shall be deemed to have always applied to it notwithstanding any
exchange or delivery which may have taken place.”
5.152
The Supreme Court held that a literal interpretation to the effect that
a party is prohibited from withdrawing reliance unless he has previously delivered
the report was “fallacious.” Geoghegan J found that the situation that arose in
this case was not expressly covered by Rule 46(6) and so in order to apply a
proper interpretation of the Rules to the facts of the case it was necessary to
look at the statutory provision underlying the 1998 Rules, section 45 of the Courts
and Court Officers Act 1995.
5.153
Based on this interpretation, Geoghegan J held that only expert reports
intended to be relied on in evidence were subject to the disclosure rules, and
therefore once the defendant had changed his mind about the witness, the
surgeon’s report became a privileged document and so did not have to be
disclosed.
(ii)
Preliminary Reports & Disclosure
5.154
The duty of disclosure under the rules was also considered by the
Supreme Court in Payne v Shovlin,[893] a decision which has greatly clarified the precise
application of the rules and what exactly constitutes an expert report.
5.155
Here, the question arose as to whether there was a duty on the plaintiff
to disclose the preliminary report of the medical expert as well as the final,
more refined report. The plaintiff argued that after further consultation, the
view of the expert in relation to causation and liability had developed since
the preliminary report and therefore it would be unfair to require him to
disclose a report created when proceedings were just getting under way, based
on a more reliable report. The defendant argued that, on the wording of the
1998 Rules, all expert reports must be adduced, and that not disclosing this
report would mean that the defendant could be ambushed at trial with the
expert’s views from an earlier report.
5.156
The Supreme Court held that once the report in question formed part of
the substance of the evidence, it must be disclosed pursuant to the 1998 rules,
regardless of the existence of a later more comprehensive version of the
report.
5.157
Kearns J considered that, while the 1998 Rules introduced an exception
to the general privilege attaching to communications made in contemplation of
litigation, that privilege is itself an exception to the general principle that
all relevant information should be brought before the court, and as such it
should be strictly interpreted. He went on to explain that such
disclosure is necessary in the interests of expedition and efficiency:
“…the failure to produce an earlier report, providing it
contains the substance, or part of the substance, of the evidence which, at the
time of its compilation it was intended to give, may lead to a situation where
in the course of cross-examination, it may emerge that the author expressed a
different view, for example in relation to causation in a medical negligence
action, at an earlier time and adverted to same in a first report. How can the
interests of expedition and efficiency be served if such information only
emerges in cross-examination? It might well require that the trial be adjourned
while further lines of enquiry are pursued in the light of the particular
revelation. Further, it would always be possible that such additional inquiries
might lead to the claim being dropped altogether. All of these costly and
undesirable consequences are avoided by disclosure of all reports which contain
any of the substance of the evidence intended to be led.”[894]
(iii)
Disclosure of Documents Mentioned in Expert Reports
5.158
The extent to which
documents which are referred to in the report of an expert or documents to
which the expert had regard to retain their privilege or are required to be
disclosed was considered in Doherty v North Western Health Board, Davison
and Medical Defence Union and MDU Services Ltd.[895]
5.159
Here the defendant
Health Board (now the Health Service Executive) sought disclosure of certain
documents of the first and third parties, Davison and MDU Services Ltd, which
had been referred to in the reports of two expert witnesses in the case.
5.160
The defendant claimed
such documents came under the definition of that required to be disclosed under
the rules as which refer to “any maps, drawings, photographs, graphs,
charts, calculations other like matter referred to in any such report.”[896]
5.161
The documents in question here included solicitor/client correspondence
and certain statements by witnesses, and the defendant argued this was “other
like matter” as mentioned under the rules.
5.162
The court disagreed with this argument finding that the phrase “other
like matter” must be interpreted in the context of the preceding words which
referred to maps, drawings etc and that the documents referred to in this case
could not be considered as a like matter to those specifically mentioned in the
Rules.
(iv)
1998 Rules in Practice
5.163
Although the 1998 Rules themselves have been criticised as unclear, the
interpretation given by Court in Payne and other decisions has gone a
long way towards clarifying some of the uncertainties generated by the 1998
Rules.
5.164
Nevertheless, some difficulties still remain. First, the court failed to
define clearly the meaning of the term the “substance of the evidence to be
adduced.”[897] Kearns J
in Payne opined that it was an “arguable point” that, as held in English
decision of Kenning v Eve Construction Ltd,[898]
the substance of the evidence includes not only matters that may arise from the
direct evidence of the expert in examination-in-chief but also matters that may
arise during cross-examination. The court however, refrained from giving any
set view if this should be the case in this jurisdiction.
5.165
Second, it can be recognised that the decision in Payne has
placed a very high onus on parties to personal injuries litigation to disclose
all expert reports that form part of the evidence in court, even if the
opinions expressed by the expert have altered due to changing circumstances or
increased information.
5.166
The parties will therefore seek to ensure that there is nothing in a preliminary
expert report which may undermine their arguments in court. This has led to a
situation in practice where experts are encouraged to refrain from formally
creating their report until they have thoroughly completed their
investigations, finalised their opinions and liaised with the instructing
party. Such an approach is clearly not what was envisaged by the rules and
could in fact result in misunderstanding of verbal communications and advice
particularly where complex issues are in question.[899]
(b)
Disclosure in Criminal Proceedings
5.167
In the context of criminal proceedings, the law recognises the right of
an accused person to information regarding the evidence to be adduced against
him or her at trial. As a result, under Part 4 of the Criminal Procedure Act
1967, as amended by Part 9 of the Criminal Justice Act 1999, where
the accused in being tried on indictment, the prosecution in a criminal trial
is required to furnish the accused with details of the evidence to be given at
trial, which is commonly known as the Book of Evidence.
5.168
The material that must be disclosed in set out in Part 4B & 4C of
Part IA of the Criminal Procedure Act 1967, which was inserted by
section 9 of the Criminal Justice Act 1999. Material that must be
disclosed which has relevance the context of expert witnesses includes:
“4B (1) (c) a list of the witnesses the prosecutor proposes
to call at the trial
(d) a statement of the evidence that is expected to be given
by each of them…
4C (1) (a) a list of any further witnesses the prosecutor
proposes to call at the trial;
(b)
a statement of the evidence that is expected to be given by each witness whose
name appears on the list of further witnesses
(c) a statement of any further evidence that is expected to
be given by any witness whose name appears on the list already served under
section 4B(1) (c.)”
(c)
Disclosure in Commercial Proceedings
5.169
Similar disclosure requirements to those provided for in personal
injuries cases by the 1998 Rules are also provided for in commercial
proceedings by the Rules of the Superior Courts (Commercial Proceedings)
2004 (SI No. 2 of 2004).
5.170
The 2004 Rules provide that a party seeking to rely on an expert’s
evidence must furnish, not later than one month prior to the date of trial in
the case of the plaintiff, and not later than seven days prior to the date of
trial in the case of the defendant, a written statement outlining the essential
elements of that evidence signed and dated by the expert.
(d)
Disclosure in Competition Proceedings
5.171
Mirror provisions to the 2004 disclosure rules in commercial proceedings
are provided for in competition proceedings by the Rules of the Superior
Courts (Competition Proceedings) 2005 (SI No 130 of 2005).
5.172
The 2005 Rules provide that a party seeking to rely on an expert’s
evidence must furnish, not later than one month prior to the date of trial in
the case of the plaintiff, and not later than seven days prior to the date of
trial in the case of the defendant, a written statement outlining the essential
elements of that evidence signed and dated by the expert.
(e)
Conclusion
(2)
Exchange of Expert Reports
5.173
None of the above mentioned rules providing for exchange of expert
reports expressly state the method whereby the reports that are intended to be
used are to be exchanged between the parties. However, in the context of
personal injuries actions, the Supreme Court in Kincaid v Aer Lingus
Teoranta,[900] sought to clarify how the exchange of expert reports was
to take place in practice. Geoghegan J stated:
“The obligation under O. 39, r. 46(1) is to
"exchange" scheduled reports. If a party's solicitor ensures that the
"exchange" is contemporaneous there is no danger of the so called
"abuse" arising.”
5.174
The Commission has provisionally concluded that, having regard in
particular to the clarification given in the case law discussed to the
operation of the 1998 Rules, it might be appropriate to recommend the extension
of a requirement to exchange expert reports to apply to all categories of civil
claims, and the Commission invites submissions on this.
5.175
The Commission invites submissions on whether it would be appropriate to
recommend the extension of a requirement to exchange expert reports, currently
confined to personal injuries actions, to all categories of civil claims.
(3)
Requisite Contents of the Expert Report
(a)
Ireland
5.176
At present there is no set form and structure required for the expert
reports and it at the discretion of the individual expert witness to decide
what the contents of these should be.
5.177
The majority of expert reports will be very detailed outlining the
investigations made, the opinions reached, and setting out any materials used
in the making of the expert report, because an expert report that does not
contain sufficient detail is unlikely to be admitted as evidence, and even if
it is, its shortcomings are likely to be exposed during cross examination.
5.178
However, other jurisdictions have put down in written format the
necessary elements of expert reports. This provides useful guidance for experts
and helps to promote consistent high standards in expert reports.
(b)
England
(i)
Civil Cases
5.179
In England, Part 35 of the Civil Procedure Rules, the accompanying
Practise Direction to Part 35, and the Civil Justice Council’s Protocol for the
use of Experts in Civil Claims all provide extensive guidance about the
requisite contents of expert reports created in cases under the CPR Rules.
(I)
CPR Rule 35.10
5.180
CPR Rule 35.10, entitled ‘contents of reports,’ states that an expert
report must comply with the requirements set out in the relevant Practice
Direction.[901] However
CPR r.35.10 then goes on to specifically mention certain elements that must be
included, which underlines the importance of these elements.
5.181
The expert is required to sign a declaration that he understands and has
complied with his or her overriding duty to the court. [902] He or she is also obliged to ensure
that the report contains the substance of all materials instructions, written
or oral, on the basis of which the report was written. [903]
(II)
Practice Direction Part 35
5.182
Part 2 of the Practice
Direction covers the form and content of the expert’s reports. It begins by
clarifying that the report is to be addressed to the court and not to the party
from whom the expert has received instructions.[904]
5.183
Part 2.2 then expressly
enumerates certain mandatory requirements;
“2.2 An expert’s
report must:
(1) give details of the expert’s qualifications;
(2) give details of any literature or other material which
the expert has relied on in making the report;
(3) contain a statement setting out the substance of all
facts and instructions given to the expert which are material to the opinions
expressed in the report or upon which those opinions are based;
(4) make clear which of the facts stated in the report are
within the expert’s own knowledge;
(5) say who carried out any examination, measurement, test or
experiment which the expert has used for the report, give the qualifications of
that person, and say whether or not the test or experiment has been carried out
under the expert’s supervision;
(6) where there is a range of opinion on the matters dealt
with in the report –
(a) summarise the range of
opinion, and
(b) give reasons for his own
opinion;
(7) contain a summary of the conclusions reached;
(8) if the expert is not able to give his opinion without
qualification, state the qualification; and
(9) contain a statement that the expert understands his duty
to the court, and has complied and will continue to comply with that duty.”
5.184
Part 2.3 requires the expert to verify the report by signing a
declaration of truth and 2.4 states the exact wording of the statement of truth
to be used:
“I confirm that insofar as the facts stated in my report are
within my own knowledge I have made clear which they are and I believe them to
be true, and that the opinions I have expressed represent my true and complete
professional opinion.”
5.185
Finally, Part 2.5 gives further guidance to the expert about the duty
owed by an expert witness to act truthfully and with integrity at all times by
drawing the expert’s attention to CPR r. 35.14 which sets out the consequences
of making a statement without an honest belief in its truth.
(III)
Civil Justice Council Protocol for Experts in Civil
Claims
5.186
Part 13 of this guidance
protocol summarises the requirements relating to contents of expert reports
outlined in CPR r 35 and the Practice Direction, in particular the overriding
duty owed to the court, the requirement to sign a declaration of truth, and the
requirement to maintain independence and objectivity at all times when
preparing reports.[905]
(IV)
Professional Expert Witness Bodies
5.187
Furthermore, as explained in the Civil Justice Council’s Protocol, model
form expert reports are available for experts from bodies such as the Expert
Witness Institute and the Academy of Experts.[906]
Such groups also run training courses for their members which give training on
excellence in report writing.[907]
(ii)
Criminal Cases
5.188
The Criminal Procedure
Rules also give comprehensive consideration to the requisite content of expert
reports created under the Rules. Rule 33.3(1) and (2) provide:
“(1) An
expert's report must –
(a) give
details of the expert's qualifications, relevant experience and accreditation;
(b) give
details of any literature or other information which the expert has relied on
in making the report;
(c) contain
a statement setting out the substance of all facts given to the expert which
are material to the opinions expressed in the report or upon which those
opinions are based;
(d) make
clear which of the facts stated in the report are within the expert's own knowledge;
(e) say who
carried out any examination, measurement, test or experiment which the expert
has used for the report and –
(i) give the qualifications, relevant experience and
accreditation of that person,
(ii) say whether or not the examination, measurement, test
or experiment was carried out under the expert's supervision, and
(iii) summarise the findings on which the expert relies;
(f) where
there is a range of opinion on the matters dealt with in the report –
(i) summarise the range of opinion, and
(ii) give reasons for his own opinion;
(g) if the
expert is not able to give his opinion without qualification, state the
qualification
(h) contain
a summary of the conclusions reached;
(i) contain
a statement that the expert understands his duty to the court, and has complied
and will continue to comply with that duty; and
(j) contain
the same declaration of truth as a witness statement.”
(c)
Australia
(i)
Federal Court of Australia
5.189
The Explanatory Memorandum attached to the Federal Court of Australia’s
Practice Direction on Expert Evidence’s Explanatory Memorandum is interesting
as rather than focusing on the form and structure of the expert report it makes
some suggestions relating to the substance and content of the report. More
specifically, it sets out a number of suggestions for ensuring that the expert
report avoids being perceived as lacking objectivity and of being coloured in
favour of the instructing party;
“Ways by which an expert witness giving opinion evidence may
avoid criticism of partiality include ensuring that the report, or other
statement of evidence:
(a) is clearly expressed and not argumentative in tone;
(b) is centrally concerned to express an opinion, upon a clearly
defined question or questions, based on the expert’s specialised knowledge;
(c) identifies with precision the factual premises upon which
the opinion is based;
(d) explains the process of reasoning by which the expert
reached the opinion expressed in the report;
(e) is confined to the area or areas of the expert’s
specialised knowledge; and
(f) identifies any pre-existing relationship (such as that of
treating medical practitioner or a firm’s accountant) between the author of the
report, or his or her firm, company etc, and a party to the litigation.”[908]
5.190
The Practice Direction itself also contains considerable detail on the
requisite Form of the Expert Evidence in Part 2. This requires the expert report
to give details of the expert’s qualifications and other literature used in
making the report,[909] as well as
detailing the qualifications of each person who carried out tests relied on by
the expert in the report. [910]
Any extrinsic material referred to in the report such as “photographs, plans,
calculations, analyses, measurements, survey reports” must be included with the
report. [911]
5.191
The expert must clearly state where assumptions of fact have been made,[912]
and ensure that all opinions given, along with the reasons for the opinions,
are clearly summarised. [913] The expert must clearly state if the
opinion is incomplete due to lack of data, provisional, or incomplete or
inaccurate without some qualification.[914]
The expert must also state where a particular issue falls outside of the
expert’s area of expertise. [915]
5.192
A statement of truth is required to be signed at the end of the report
and the appropriate wording for this is given:
“At the end of the report the expert should declare that
“[the expert] has made all the inquiries that [the expert] believes are
desirable and appropriate and that no matters of significance that [the expert]
regards as relevant have, to [the expert’s] knowledge, been withheld from the
Court.” [916]
(ii)
Australian Capital Territory
5.193
The ACT Court Procedure
Rules 2006 deal with Expert Evidence in Chapter 2 Part 2.12.[917]
Although this part does not contain a sub-heading setting out the necessary
elements to be contained in the expert report, some guidance is given in
Division 2.12.1 Part 1201 which defines expert report for the purpose of the
Rules thus indicating what requirements must be complied with in its
compilation.
5.194
Rule 1201(2) states
that an expert report is a written statement that includes:
·
the expert’s opinion
and facts on which this is based [this requirement is repeated in Rule 1244]
·
the substance of the
evidence that the expert intends to adduce at evidence in chief stage of the
trial process [this requirement is repeated in Rule 1243].
5.195
Part 1202(3) requires
the expert witness to agree to be bound by the code of conduct in Schedule 1 of
the Rules, and to include an acknowledgement that this code has been read in
the text of the expert report.
(iii)
Queensland
5.196
Section 423 of the
Uniform Civil Procedure Rules (UCPR) 1999, which deals with expert evidence,
does not go into great detail about the form and structure of the expert
reports. In fact, Section 423 does not refer to a ‘report’ at all but merely
states that an expert witness must give a written statement of the expert
evidence to the other party.
5.197
Like the ACT rules, the
three main requirements of this written statement are that it gives the name
and address of the expert, outlines the qualifications of the expert, and that
it contains the substance of the evidence to be given by the expert at trial.[918]
(iv)
New South Wales
5.198
In contrast with the
Queensland UCPR Rules, the New South Wales Uniform Civil Procedure Rules 2004
contain extensive guidelines on the form and structure of the expert report.
Rule 31.27 entitled Expert Reports provides that an expert’s report must
include, either in the body of the report or in an annex to the report, the
following;
“(a)
the expert’s qualifications as an expert on the issue the subject of the
report,
(b)
the facts, and assumptions of fact, on which the opinions in the report are
based (a letter of instructions may be annexed),
(c)
the expert’s reasons for each opinion expressed,
(d) if
applicable, that a particular issue falls outside the expert’s field of
expertise,
(e)
any literature or other materials utilised in support of the opinions,
(f)
any examinations, tests or other investigations on which the expert has relied,
including details of the qualifications of the person who carried them out,
(g) in
the case of a report that is lengthy or complex, a brief summary of the report
(to be located at the beginning of the report).
(2) If
an expert witness who prepares an expert’s report believes that it may be
incomplete or inaccurate without some qualification, the qualification must be
stated in the report.
(3) If
an expert witness considers that his or her opinion is not a concluded opinion
because of insufficient research or insufficient data or for any other reason,
this must be stated when the opinion is expressed.
(4) If
an expert witness changes his or her opinion on a material matter after
providing an expert’s report to the party engaging him or her (or that party’s
legal representative), the expert witness must forthwith provide the engaging
party (or that party’s legal representative) with a supplementary report to
that effect containing such of the information referred to in subrule (1) as is
appropriate.”
(d)
Conclusion
5.199
There is a strong argument to be made that there should be a list of
compulsory elements set out which must be present in all reports. The above
discussion reveals that other jurisdictions have opted to give extensive guidelines
for experts about what they must put in a report which, it is submitted, helps
to ensure consistency within the reports making it easier for the court to
compare and contrast expert evidence from opposing parties.
5.200
Having a set form and structure also helps to ensure a high standard of
report writing across the board and reduces the risk that the evidence of an
expert will be rejected as being inadequate. From analysis of the requisite
elements identified in other jurisdictions, it would appear that the main
requirements are that the report outline the qualifications of the expert, the
substance of the evidence to be given by the expert, all opinions and the
reasons for the opinion, a statement of veracity relating to the contents of the
report, and an agreement to comply with the overriding duty owed to the court.
5.201
On this basis, the Commission has provisionally concluded that there
should be a set form and structure for expert reports, which might include the
following elements:
·
The report must be addressed to the court and not to the party or
parties from whom instructions have been received.
·
The expert’s qualifications and experience should be outlined in detail
and relevant certificates of proof attached.
·
The terms and conditions of the appointment of the expert witness
including the payment arrangements should be explained.
·
All material instructions, oral and written, which were given to the
expert, and on the basis of which the report was written must be outlined.
·
If a potential conflict of interest arises, the facts relating to this
should be stated.
·
All relevant information relating to the issue, including that which is
capable of detracting from the expert’s opinion, should be outlined.
·
All materials used by the expert in coming to the opinion, clearly
distinguishing between matters of fact and matters of opinion.
·
Where tests or experiments have been conducted in the course of creating
the report all related information must be included such as methodologies,
results and details about the individuals and qualifications of those involved
in the carrying out of these tests.
·
The expert should indicate if the opinion is provisional or conditional
on certain factors, or if they believe they cannot give a formal opinion on the
issue without further information, or where they believe they cannot make an opinion
without qualification.
·
A signed declaration that the contents of the report are true and that
the expert understands the overriding duty owed to the court and that the
report has been created in compliance with this.
·
If, subsequent to the completion of a report, an expert changes his or
opinion on any material issue in the report, the expert witness must state this
in a supplementary report. [Paragraph 5.202]
5.202
The Commission provisionally recommends that there should be a set form
and structure for expert reports, which might include the following elements:
·
The report must be addressed to the court and not to the party or
parties from whom instructions have been received.
·
The expert’s qualifications and experience should be outlined in
detail and relevant certificates of proof attached.
·
The terms and conditions of the appointment of the expert witness
including the payment arrangements should be explained.
·
All material instructions, oral and written, which were given to the
expert, and on the basis of which the report was written must be outlined.
·
If a potential conflict of interest arises, the facts relating to
this should be stated.
·
All relevant information relating to the issue, including that which
is capable of detracting from the expert’s opinion, should be outlined.
·
All materials used by the expert in coming to the opinion, clearly
distinguishing between matters of fact and matters of opinion.
·
Where tests or experiments have been conducted in the course of
creating the report all related information must be included such as
methodologies, results and details about the individuals and qualifications of
those involved in the carrying out of these tests.
·
The expert should indicate if the opinion is provisional or
conditional on certain factors, or if they believe they cannot give a formal
opinion on the issue without further information, or where they believe they
cannot make an opinion without qualification.
·
A signed declaration that the contents of the report are true and
that the expert understands the overriding duty owed to the court and that the
report has been created in compliance with this.
·
If, subsequent to the completion of a report, an expert changes his
or opinion on any material issue in the report, the expert witness must state
this in a supplementary report.
(4)
Producing Expert Reports in Court
(a)
England
5.203
Part 35 of the Civil Procedure Rules was innovative in that the
underlying premise of admissibility of expert evidence is altered. There is no
general provision stating that parties are entitled to call expert witnesses,
rather, expert evidence is “restricted to that which is reasonably required to
resolve the proceedings.”[919]
This provision aimed to reflect the overriding function of the rules namely
dealing with cases justly and thus expeditiously.
5.204
Another significant provision in this vein is CPR r.35.5 which explains
that the expert report, and not an expert witness, is the principal means by
which expert evidence is to be brought before the court. CPR r35.5(1) provides
that expert evidence is to be given in a written report unless the court
provides otherwise.[920]
5.205
More significantly, CPR r35.5(2) provides that for claims on the fast
track,[921] an expert
will not be required to attend a hearing unless the court considers this is
necessary in the interests of justice.
5.206
At common law, such a report would have been excluded as evidence unless
the expert himself was called in court. However, this provision has been
facilitated by the introduction of the Civil Evidence Act 1995 which
states that no evidence shall be excluded on grounds that it is hearsay.[922]
5.207
CPR r.35.5 has greatly reduced the costs and delayed associated with the
giving of expert testimony in certain categories of cases. According to a UK
Register of Expert Witnesses survey, one of the main noted changes in the
expert witness marketplace has been the reduction in the number of cases in
which experts are required to give oral evidence in court, it being now
considered “exceptional” for experts in ‘fast track’ cases to be required to
appear in court. The average frequency of court appearances recorded by this
annual survey now stands at 3.1 times a year.[923]
(b)
Ireland
5.208
No mirror provision to CPR r35.5 exists in this jurisdiction.
Furthermore, because of the application of the rule against hearsay,[924]
expert witnesses may be required to testify orally about the contents of the
expert report in court in every case where expert evidence is sought to be
adduced.
5.209
If this was not the case, in less serious cases in the civil courts at
least, it might lead to significantly reduced costs for parties to litigation.
It would ultimately remain open to both parties to call any author of an expert
report to be cross examined if the parties so wish.
5.210
Permitting expert reports, without the need to call experts, where the
subject matter of the expertise is peripheral to the issues in the case, and
where the parties are not in disagreement about the issues, may prove very
beneficial both in terms of cost and terms of delays so it is certainly an
issue that should be considered.
5.211
However, as a result of the lack of reform of the hearsay rule, such a
reform would involve either creating a new statutory exception to the rule, or
a complete overhaul of the rule, perhaps in civil cases only, such as has
occurred in the Civil Evidence Act 1995 in England, unless expert
reports were considered records compiled in the ordinary course of the
business, as allowed under the Criminal Evidence Act 1992.
5.212
In criminal cases, the Criminal Justice Act 2006 has made some
reforms which touch on hearsay. Section 188 inserts a new section (Sec
5(4)(b)(iia) into Section 5 of Criminal Evidence Act 1992 which provides
for an exception to the hearsay rule for certain types of documentation in
criminal proceedings (business records). However section 5(3) provides that
this exception does not apply to documentation created in the context of a
criminal investigation (e.g. forensic records). The 2006 Act now provides that
pursuant to S5(4)(b)(iiaa) the section 3 exclusion will not apply in the case
of the forensic science laboratory.
5.213
There are, however, recent indications of tentative reform in this area.
The Rules of the Superior Courts (Commercial Proceedings) 2004 provide
that a judge may, in exceptional circumstances and after hearing all of the
parties, make an order that the written statement of an expert witness or a
witness of fact sought to be relied on by one of the parties shall be treated
as the evidence in chief of the witness or expert, provided the statement has
been verified on oath by the witness or expert.
5.214
This would appear to allow the judge to order, in exceptional cases,
that once an expert has verified the written statement on oath, he is no longer
required to give viva voce testimony and the written statement will suffice as
the evidence in chief.
5.215
However, the ability of this provision to reduce litigation costs is
undermined by the fact that first, the provision expressly refers to
“exceptional circumstances” which infers it will not be often used, and second,
the expert is still required to come to court to verify the statement on oath,
and so will still charge court attendance fees, albeit for a reduced time.
(c)
Conclusion
5.216
The Commission has concluded that, while reform in this area might
produce significant beneficial effect in terms of costs and delays, any reform
in the context of expert witnesses should be considered by the Commission in
the wider context of its consideration of the hearsay rule generally. [925]
F
Alternative Structures to Party Appointed Experts
5.217
None of the above suggested reforms would necessitate a radical
departure from the current system of giving expert testimony. All of the
provisions recommended could be included in a single draft code of guidance for
experts and their instructing parties. This would require little effort to put
in place but could lead to significant improvements in the standard and quality
of expert testimony.
5.218
However, many have argued that such procedural amendments are not
sufficient in themselves. Several commentators have expressed the view that the
only way of combating the recognised problems with the existing system of
giving expert evidence is a complete modification of the current adversarial
structure of the giving of expert testimony and its replacement by another
system that is considered more conducive to independent and impartial expert
evidence.
5.219
As a result, it may be worthwhile considering some of these suggested alternatives,
as well as examining the systems used in other jurisdictions to import
specialist knowledge into the court besides the party appointed experts used in
this jurisdiction.
(1)
Single and Court Appointed Experts
5.220
Many jurisdictions, including Ireland, have introduced provisions to the
effect that in certain categories of cases, only one single expert will be
appointed for the purposes of importing expert knowledge into the case.
5.221
In some cases, the court will be given the power to determine the expert
to be appointed. In other cases, the court will direct a single expert to be
appointed by joint agreement between the parties.
5.222
The theory behind the appointment of a single expert is that such an
expert is more likely to present the issue in an objective and impartial light,
rather than two experts, both of which may seek to present the issues in the
light most favourable to their instructing party.
5.223
However, it is apparent that not all categories of cases will be
conducive to the appointment of a single expert. Furthermore, the use of single
experts continues to be the subject of considerable debate, and has formed the
subject matter of the majority of literature on the subject of expert evidence.
As explained by Auld J:
“The same dilemma, most acutely present in an adversarial and
jury system, and at its sharpest in criminal trials, has remained the subject
of debate…and is still unresolved.”[926]
5.224
It is useful to consider the extent that various jurisdictions have
introduced provisions providing for the use of single experts, in an attempt to
consider if reforms should be introduced in this jurisdiction.
(a)
Ireland
5.225
Although there is no general, all-encompassing provision for the
appointment of single experts in this jurisdiction, legislative amendment has
provided that in certain categories of cases the court has the authority to
appoint single experts.
(i)
Personal
Injuries Cases
5.226
Section 20 of the Civil Liability and Courts Act 2004 permits the
court to appoint an independent ‘approved’ expert witness in personal injuries
cases, which could be seen as an attempt to follow English reform. [927]
Although it is remains to be seen more clearly how this will operate in
practice, Heffernan discusses some of the potential obstacles that may occur in
the operation of s.20, and concludes that the provision is a half-hearted
attempt at reform and its lack of clarity indicates that it may have a limited
practical effect.[928]
5.227
Similarly, Holland argues that the imposition of ‘neutral’ experts
carries the danger that the evidence from such experts will be given excessive
weight leading to greater usurpation of the role of the fact finder. He also
cites additional expense, practical difficulties in appointing such experts,
their remuneration, and what documents they would be entitled to as part of
their investigation as being serious difficulties which will hamper the
practical working of s.20.[929]
(ii)
Family Law Cases
5.228
Court appointed experts are also provided for in family law legislation.
Section 47 of the Family Law Act 1995 provides that the court may
procure a report (commonly referred to as a “section 47 report”) from such
person as it may nominate on any question affecting the family law proceedings
in question.
5.229
Similarly, in nullity cases, Order 70 Rule 32 of the Rules of the
Superior Courts 1986 provides for the appointment of a medical inspector or
two medical inspectors, normally a psychologist or psychiatrist, to carry out
an independent examination of the parties so that the Court might have the
benefit of such a professional assessment before determining the issues.
(iii)
Competition Law
Cases
Part IV of Order 63B of the Rules of the Superior Courts
1986 (inserted by the Rules of the Superior Courts (Competition
Proceedings) 2004) which governs competition proceedings also
provides for the use of court appointed experts in competition cases. Rule 23
provides:
“IV. Assessors[930]
23.(1) The Court may, on the application of a party or of its
own motion and having heard the parties, appoint a person to assist the court
in understanding or clarifying a matter, or evidence in relation to a matter,
in respect of which that person (in this rule hereinafter called an
"expert") has skill and experience.
(2) The Court may appoint an expert on the nomination of the
parties or that of the court, and on such terms as to the payment of his fees
and otherwise as the Court may direct.
(3) The expert shall attend so much of the hearing and be
available thereafter to assist the Court as aforesaid, as the Court shall
direct.
(4) Where the expert provides
advice or other information to the Court, the Court shall, where it considers
it appropriate in the interests of justice, inform the parties of such advice
or information and afford each of them an opportunity to make submissions in
respect of it.”
(iv)
Conclusion
5.230
Although the use of court appointed experts has been common in the
context of family law cases and cases involving the welfare of the child, the
provisions in the Civil Liability and Courts Act 2004 allowing for such
experts to be used in personal injuries cases have, it appears, been rarely
invoked in practice.
5.231
In England, provisions allowing for the use of court-appointed experts
are being used more and more frequently in litigation, and the Commission now
turns to examine these provisions.
(b)
England and
Wales
5.232
In recent years, the English civil law system has embraced wide use of
single experts in litigation. Furthermore, all available studies show that the
use of single experts, in English civil law at least, continues to grow.
(i)
Civil Cases
5.233
Prior to the introduction of the Civil Procedure Rules, Order 40 of the
Rules of the Supreme Court empowered the judge to appoint an expert “on the
application of any party.” However, in practice this provision was rarely
invoked.[931]
(I)
Development of
Use of Single Experts
5.234
In his 1995 Interim Report Access to Justice Lord Woolf
recommended the introduction of a single expert witness under the control of
the court.[932]
However, Lord Woolf’s recommendation was widely criticised as being
anathema to the adversarial system in the submissions made subsequent to this
report.
5.235
Nevertheless, in the final report he endorsed this recommendation, but
emphasised that under his vision for the use of single experts, it would be the
parties as distinct from the court itself who would decide on the expert to be
appointed, leaving only residual powers of appointment with the court in the
case where the parties cannot reach agreement.[933]
“It needs to be understood that a neutral expert, under the
system I am proposing, would still function within a broadly adversarial
framework. Wherever possible, the expert would be chosen by agreement between
the parties, not imposed by the court. Whether appointed by the parties or by
the court, he or she would act on instructions from the parties. The
appointment of a neutral expert would not necessarily deprive the parties of
the right to cross-examine, or even to call their own experts in addition to
the neutral expert if that were justified by the scale of the case. Anyone who
gives expert evidence must know that he or she is at risk of being subjected to
adversarial procedures, including vigorous cross-examination. This is an
essential safeguard to ensure the quality and reliability of evidence.”[934]
(II)
The Civil
Procedure Rules
5.236
The reformed Civil Procedural Rules in England, introduced in the wake
of this report, gives the court the power under CPR 35.7 to direct that a
single expert give evidence in a particular case in lieu of testifying experts,
where two or more parties wish to give evidence on a particular issue.
5.237
Where the parties fail to come to an agreement on a particular expert to
be appointed, the court is given the power under CPR r. 35.7.3 to decide how
such experts are to be appointed, either from a list prepared by the parties,
or in such other manner as the court specifies.
5.238
CPR r. 35.7 provides:
“35.7 Court’s power to direct that evidence is to be given by
a single joint expert
(1) Where two or
more parties wish to submit expert evidence on a particular issue, the court
may direct that the evidence on that issue is to given by one expert only.
(2) The parties
wishing to submit the expert evidence are called ‘the instructing parties’.
(3) Where the
instructing parties cannot agree who should be the expert, the court may –
(a) select the expert from a list
prepared or identified by the instructing parties; or
(b) direct that the expert be
selected in such other manner as the court may direct.”[935]
5.239
CPR r. 35.8 sets out the instructions that can be given by the court
prior to the appointment of a single joint expert. It provides:
35.8 Instructions to a single joint expert
(1) Where the court
gives a direction under rule 35.7 for a single joint expert to be used, each
instructing party may give instructions to the expert.
(2) When an
instructing party gives instructions to the expert he must, at the same time,
send a copy of the instructions to the other instructing parties.
(3) The court may
give directions about –
(a) the payment of the expert’s
fees and expenses; and
(b) any inspection, examination or
experiments which the expert wishes to carry out.
(4) The court may,
before an expert is instructed –
(a) limit the amount that can be
paid by way of fees and expenses to the expert; and
(b) direct that the instructing
parties pay that amount into court.
(5) Unless the
court otherwise directs, the instructing parties are jointly and severally
liable (GL) for the payment of the
expert’s fees and expenses”[936]
5.240
Part 6 of the Practice Direction accompanying CPR Part 35 is interesting
as it states that where the court holds that a single joint expert is to give
evidence on a particular issue, but there are several disciplines involved,
that such expert should be a leading expert in the dominant discipline and he
or she should prepare a general report but is also responsible for
incorporating contents of reports from experts in other disciplines relevant to
the issue.
(III)
Use of Single
Experts
5.241
In the Auld Review of the English criminal justice system Auld LJ
reported that a survey in 2001 indicated that single joint experts were in use
40% of the time.[937] More
recently, the UK Register of Expert Witnesses 2007 survey on the practise of
expert witnesses found that 73% of experts surveyed had been instructed as
single joint experts, a statistic that remains unchanged in the annual survey
since 2003.[938]
5.242
Such surveys reveal consistently high use of CPR r.35.7 and are a
considerable achievement in the context of reducing costs which was the main
goal of the reform.
(IV)
Judicial
Commentary on Single Experts
5.243
There has also been significant judicial commentary in England on the
use of single joint experts under the CPR rules. The operation of CPR r.35.7
was discussed in detail in Daniels v Walker.[939]
Here, a single expert had been appointed to make a medical report which the
defendant was not satisfied with. This appeal sought to determine if the
defendant was entitled to have his own expert examine the plaintiff in these
circumstances.
5.244
The defendant claimed that preventing him from adducing expert evidence
on a point in which he disagreed with the opinion of the joint appointed expert
came into conflict with Article 6 of the European Convention of Human Rights
because it amounted either to barring the whole claim of the defendant or
barring an essential or fundamental part of that claim. Lord Woolf vociferously
rejected this argument stating:
“Article 6 could not possibly have anything to add to the
issue on this appeal. The provisions of the CPR, to which I have referred, make
it clear that the obligation on the court is to deal with cases justly. If,
having agreed to a joint expert's report a party subsequently wishes to call
evidence, and it would be unjust having regard to the overriding objective of
the CPR not to allow that party to call that evidence, they must be allowed to
call it….It would be unfortunate if case management decisions in this jurisdiction
involved the need to refer to the learning of the European Court on Human
Rights in order for them to be resolved. In my judgment, cases such as this, do
not require any consideration of human rights issues, certainly issues under
article 6. It would be highly undesirable if the consideration of those issues
was made more complex by the injection into them of article 6 style arguments.”[940]
5.245
However, Lord Woolf went on to find that the trial judge had been wrong
to prevent the defendant from adducing his own expert evidence on the
contentious point. He outlined the correct approach to be taken in situations
such as this:
“In a substantial case such as this, the correct approach is
to regard the instruction of an expert jointly by the parties as the first step
in obtaining expert evidence on a particular issue. It is to be hoped that in
the majority of cases it will not only be the first step but the last step. If,
having obtained a joint expert's report, a party, for reasons which are not
fanciful, wishes to obtain further information before making a decision as to
whether or not there is a particular part (or indeed the whole) of the expert's
report which he or she may wish to challenge, then they should, subject to the
discretion of the court, be permitted to obtain that evidence.”
5.246
The interpretation given by Lord Woolf to CPR r.35.7 in this case
ensures that the single expert system will not be subjected to the accusation
that it denies a party the right to put forward a contrary argument in
circumstances where they do not agree with the opinion of the single expert.
5.247
This implies that there are sufficient safeguards in place to allow for
each party to give their own opinion, where necessary, but also allowing for an
opinion to be given by one expert, where this is possible thus promoting
expediency and better case management.
5.248
In Quarmby Electrical v Trant t/a Trant Construction[941] Jackson J also praised the use of single experts:
“I fully accept that in the larger construction cases the
device of a single joint expert is generally reserved for subordinate issues or
relatively uncontroversial matters. However, in the smaller cases, such as this
one, if expert assistance is required, it is difficult to see any alternative
to the use of a single joint expert in respect of the technical issues. If
adversarial experts had been instructed to prepare reports and then give oral
evidence in the present case, I do not see how there could have been a trial at
all. The respective experts' fees and the trial costs would have become
prohibitive. In lower value cases such as this one, I commend the use of single
joint experts. The judge, of course, remains the decider of the case. He is not
bound by everything which the single joint expert may say. However, the judge
is able to perform his functions within more sensible costs parameters.”
(ii)
Criminal Law
5.249
In his review of the English Criminal Justice System Auld LJ considered
the merits of introducing a system of single experts in criminal cases. He
argued that such a measure may go against the right to a fair trial as
guaranteed in Article 6 of the European Convention of Human Rights, and would
also conflict with the right to lodge a defence.
5.250
He explained that if a court expert gave evidence on an issue that was
highly controversial and central to the case at hand, the accused would be
required to instruct their own expert to advise them on the advice given by the
court expert, but this expert would not be entitled to cross examine the court
expert or outline a contrary view in court.
5.251
Furthermore, he argued, where the appointment of a single expert is left
to the discretion of the court, judges are more likely to continue to allow the
defence or prosecution call their own experts to avoid the danger that the
expert ultimately decide the issue, or in some instances, the case itself. This
would thus make the provision a “dead letter.”[942]
5.252
However, he did acknowledge that where expertise was needed on a matter
that was not in issue, or on an issue where the parties were content to have it
resolved by a single expert, there is no grounds for not using single experts
in these circumstances. Auld LJ therefore recommended that;
“where there is an issue on a matter of importance on which
expert evidence is required, the court should not have a power to appoint or
select an expert, whether or not it excludes either party from calling its own
expert evidence; and
where there is no issue, there is or one in which the parties
are content that the matter should be resolved by a single expert, they should
be encouraged to deal with it in that way, agreeing his report or a summary of
it as part of the evidence in the case.”[943]
5.253
Therefore, the use of single experts is not as viable in the criminal
context, as this is likely to be seen as an infringement of the right of the
accused to present his or her own evidence.
5.254
However, Criminal Procedure Rule 33.7 provides that where more than one co-defendant
wishes to adduce expert evidence on the same issue, the court may order such
evidence to be given by a single expert to be appointed jointly by the
co-defendants, or by the court or in a manner directed by the court where the
co-defendants fail to agree.
(iii)
Conclusion
5.255
Surveys on the use of single experts under the civil procedure rules
reveal that the rule is operating very satisfactorily in practice. Furthermore,
judicial comment appears to be very much in favour of the use of such a
structure.
5.256
The seemingly successful use of single experts in England, in the civil
context at least, is very significant in terms of our jurisdiction considering
one of the main arguments made against the use of single experts is that it is
not consistent with an adversarial system.
5.257
As the English and Irish legal systems are founded on the adversarial
model, it is interesting that the English system embraced so easily the use of
single experts while in Ireland we appear to be reluctant to do the same.
(c)
Australia
5.258
In the wake of considerable commentary on this issue, several Australian
jurisdictions have implemented provisions allowing for the use of single or
court appointed experts.[944]
5.259
However, it has been acknowledged that as of yet, appointments of single
or court appointed experts in general in Australia remain the exception rather
than the rule.[945]
5.260
A recent survey of Australian judicial perceptions of expert evidence
found a high level of support for single or court appointed experts. Although
few respondents had used such measures, most respondents stated that they had
not used court-appointed experts either because they had not been asked to do
so by the advocates appearing before them or because they had determined such a
course not to be necessary.
5.261
However, others stated a reluctance to use them “because of the inroads
it was perceived that they would make upon the role of the judge as a
“ring-keeper” within the adversarial model.”[946]
(i)
New South Wales
5.262
New South Wales has had provisions allowing for the use of court
appointed experts for many years, albeit limited to the context of civil
proceedings. There are no existing rules providing for the use of single
experts in criminal proceedings.
5.263
Following on from the recommendations of the Law Reform Commission in
its Report on Expert Witnesses,[947]
the Uniform Civil Procedure Rules 2005 now make a clear distinction is made
between single experts jointly appointed by the parties, and single experts
appointed by the courts, and different rules govern the two.[948]
(I)
Parties’ Single
Expert[949]
5.264
Part 31, Division 2, Subdivision 4 UCPR provides that at any stage of
the proceedings, the court may order that an expert be engaged jointly by the
parties, where an issue for an expert arises. [950]
Where, the parties fail to agree on an expert, the expert will be appointed in
accordance with the directions of the court.[951]
5.265
This part also contains rules allowing instructions to be given to a
single expert jointly by the parties; allowing the single expert to apply to
the court for directions; requiring the single expert to send a copy of his or
her report to the parties; allowing the parties to seek clarification of the
report; permitting either party to cross examine the expert in court;
prohibiting either party from adducing the evidence of any other expert where a
single expert has been appointed, and; providing for the remuneration of single
experts.
5.266
The Law Reform Commission of New South Wales, who recommended the
introduction of a provision allowing for the use of parties’ single experts,
explained that the primary objective of such a provision is to “assist the
court in reaching just decisions by promoting unbiased and representative
expert opinion.” An additional objective is to minimise costs and delay to the
parties to litigation by limiting the amount of expert evidence presented to
the court.[952]
(II)
Court Appointed
Experts
5.267
Part 31, Division 2, Subdivision 5 UCPR provides that, at any stage of
the proceedings, where an issue for an expert arises, the court may appoint an
expert to inquire into and report on the issue and give any instructions as the
court sees fit.
5.268
This part, like the above part governing parties’ single experts, also
contains provisions; governing the instructions that can be given to court
appointed experts; allowing the expert to apply to the court for instructions;
requiring the expert to send a copy of their report to the registrar; allowing
the parties to seek clarification on an aspect of the expert’s report and to
cross examine the expert; prohibiting either party from adducing the evidence
of any other expert where a court appointed expert has been appointed, and;
providing for the remuneration of single experts.
(III)
Single v Court
Appointed Expert
5.269
In its Report on Expert Witnesses in the 2005, the Law Reform Commission
of New South Wales recommended that provisions be incorporated into the UCPR
rules allowing for the appointment of ‘joint expert witnesses,’ a
recommendation that led to the insertion of Subdivision 4 UCPR on Parties’
Single Experts.[953]
5.270
In the report, the Law Reform Commission explained why such a reform was
needed by outlining why the work they envisaged would be done by a single joint
expert could not be carried out by a court appointed expert.
5.271
The Commission acknowledged that both concepts are similar as neither
has been engaged by only one of the instructing parties. However, they argue
that there are fundamental differences between the two, not least in the
degrees of control the court and the parties have over both types of
experts.
5.272
With a parties’ single expert, it is the parties who have responsibility
for selecting the expert and managing the process of their appointment
including the instructions given to the expert and deciding whether or not to
adduce the report of the expert in evidence.
5.273
With a court appointed expert, the court has sole responsibility for
choosing the expert (although it can delegate the powers of selection to the
parties) and for the instructions to be given to an expert. Furthermore, unless
the court orders otherwise, the report of a court appointed expert will be in
evidence in any hearing concerning a matter to which it relates, and the
parties have no say in this matter.
5.274
The reforms suggested by the Law Reform Commission of New South Wales
were adopted almost in their entirety in the UCPR Rules. There is but one
notable difference between the Commission’s recommendations and the reformed
UCPR rules. The Commission had recommended that, in the context of court
appointed experts, the rule should be amended so that instead of providing that
additional expert evidence cannot be adduced except by leave, it would provide
that an order can be made prohibiting other expert evidence if there is a
special reason for doing so.[954]
5.275
The Commission had argued that such a reform was appropriate because the
appointment of an expert by the court would not ordinarily be inconsistent with
the parties calling expert evidence of their own. Nevertheless, UCPR r. 31.52
provides;
“Except by leave of the court, a party to proceedings may not
adduce evidence of any expert on any issue arising in proceedings if a
court-appointed expert has been appointed under this Division in relation to
that issue.”[955]
(IV)
Land and Environment Court of New South Wales
5.276
In contrast with the limited use of single and court appointed experts
in other jurisdictions, in recent times, the Land and Environment Court of New
South Wales has made extensive use of court appointed experts in environmental
planning and protection appeals cases.[956]
5.277
Interestingly, in practice in this court, rather than court discretion
in favour of single experts, there is a presumption operating since 2004 that
in relation to any issue requiring expert evidence, a court expert is to be
appointed.[957]
5.278
Although each case will be decided on its merits, the court will appoint
an expert once satisfied that there may be cost savings to the parties or where
the issue involved is such that the integrity of the ultimate decision will
benefit from the appointment of an expert by the Court.[958]
5.279
Between March 2004 and April 2005, 474 court experts were appointed, all
but 10 appointed by mutual agreement between the parties. This development has
led to a significant reduction in hearing times within the court. Furthermore,
feedback on the structure from judges, legal practitioners and experts
themselves about their opinion of the quality of the evidence given by court
appointed experts consistently found that evidence from persons appointed as
court experts “reflects a more thorough and balanced consideration of the
issues than was previously the case.”[959]
(ii)
Family Law Court
5.280
Rule 15.44(1) of the Family Law Rules 2004 (Cth) which govern
proceedings in the Family Court of Australia provides for the use of a single
expert jointly appointed by the parties, where the parties agree that expert
evidence may help to resolve a substantial issue in the case.
5.281
Interestingly, Rule 15.44(2) states that the permission of the court is
not needed in order for a party to adduce evidence or tender a report of a
single expert.
5.282
The parties must jointly decide on the expert to be appointed. However,
where the parties cannot agree, the court has the power to order that the
parties confer for the purposes of agreeing, and failing this the court can
appoint an expert from a list drawn up by the parties.[960]
5.283
However, Rule 15.45 provides that the court does have the power to order
evidence to be given by a single expert, on application or on its own
initiative, where it considers this necessary and appropriate.
5.284
Rule 15.54(3) provides that the instructions to be given to single
experts must be agreed jointly by the parties and, if an independent children’s
lawyer has been appointed in the case, by the independent children’s lawyer.
The court can order the parties to confer for the purposes of agreeing on
instructions to be given to the single expert.[961]
5.285
These rules reveal that the court has very little input into the use of
single experts in the Family Court of Australia. While the court does have the
power to order evidence to be given by a single expert and can make orders
requiring the parties to confer on conditions governing their appointment,[962]
for the most part it is the parties who decide on the use of a single expert,
on who to appoint, the instructions to be given, and whether or not to adduce
the evidence of such expert.
(iii)
Queensland
5.286
The Uniform Civil Procedure Rules 1999 (Qld) also provide for the use of
Court Appointed Experts in civil proceedings in the Queensland courts.
5.287
Section 425(1) gives the court the power to appoint a court expert, from
a list of experts kept by the court or otherwise, for the purposes of court
proceedings. Section 425(3) further gives the court the power to require the
parties to provide a list of experts for the purposes of appointment as a court
expert.
5.288
Section 428 provides that where expert evidence has been given by a
court expert, a party may not adduce further expert evidence on the same matter
without the leave of the court.
5.289
These rules give considerable power to the court to control the expert
evidence of the court expert, and in this way, provide a sharp contrast with
the Family Law Rules where the expert retains most control.
(iv)
Conclusion
5.290
An examination of the
various Australian jurisdictions shows a very clear distinction between two
types of single experts; those jointly appointed by the parties, and court
appointed experts.
5.291
While some
jurisdictions for example New South Wales, have provisions allowing for both
these type of experts, other jurisdictions only provide for party appointed
single experts, with the court retaining a residual discretion to appoint an
expert where the parties cannot agree on a single expert.
5.292
This is significant
because, it is submitted; allowing a single expert to be appointed by the
parties retains the adversarial nature of proceedings and removes one of the
main criticisms of the system of single experts, but also reduces costs and
delays in litigation by preventing expert evidence on the same issue being
repeated by experts for both sides.
(d)
The Use of
Single and Court Appointed Experts: Conclusion
5.293
The successful use of single experts in other jurisdictions implies that
it is a practice that should possibly be adopted here, albeit in certain
categories of cases only.
5.294
It is clear that it may be virtually impossible to recommend the use of
single experts in criminal cases, as the constitutional right to a fair trial
would likely be interpreted as necessitating the ability of each party to
present their own evidence and the right to present evidence contrary to that
put forward by the single expert.
5.295
However, less criticism may attach to the suggestion that single experts
be appointed in cases involving non contentious issues for which expert
testimony is needed.
5.296
However, it must also be noted that a system whereby the parties jointly
agree on a single expert, as opposed to a single expert chosen and appointed by
the court, is to be preferred. Furthermore, it is clear that both parties must
retain the ability to cross examine the expert if the adversarial character of
the system is to be retained.
5.297
As already mentioned, there is a plethora of literature both advocating
and opposing the use of single or court appointed experts.[963]
The main arguments made will now be summarised.
(i)
Advantages
·
The use of single or court appointed experts is the best possible way of
removing the problem of adversarial bias in the giving of expert testimony.
Having one expert appointed by the court and not by the parties would remove
any perception of bias on the part of the expert that would be generated by his
desire to do right by the instructing party. The evidence given by a single
expert will be more likely to be considered as an objective, reasonable,
representation of professional opinion on the issue than that of a party
appointed expert, whose views may have been coloured by his affiliation with
the instructing party.
·
It would also have the effect of reducing the excess costs and delays
generated by experts who have different opinions battling it out in court. Time and money will be saved by
the reduction in the number of experts, the removal of time spent by party
experts exchanging reports, the reduction in time spent giving expert evidence
and the fact that the court has some control over experts' fees.
·
Where two parties agree on the appointment of a joint expert, this
expert is likely to recommend settlement, which may limit court times and
reduce costs for both parties.
·
It would reduce the possibility of the situation occurring as has in the
US where both parties ‘shop’ for expert witnesses who may be more favourable to
their claim and may help prevent potential conflicts of interest.
·
If the expert reports to the court early in the proceedings, this may
result in an early resolution of the dispute.
·
The expert is not being paid by any one party and therefore is more
likely to be impartial.
·
Expert witnesses will not be placed in an adversarial role and the court
will not be forced to choose between the opinions of two opposing experts.
·
Another significant advantage of a court expert in merit appeals is that
the parties have an opportunity to discuss with an expert, who has no brief for
both side, and who both sides have confidence in, the merits and problems of
the particular proposal.
·
Although there are issues and instances where the appointment of a
single or court appointed expert will not be appropriate, this should be a
matter for the court to consider when to allow such appointments, and should
not be used as an argument against introducing such provisions at all.
(ii)
Disadvantages
·
The appointment by the court of its own expert witness is contrary to
the fundamental premise of the adversarial system. Such a system does not
facilitate the fact that, under the adversarial model, the contesting parties
have the right to gather evidence and present their own case and to call
witnesses of their own choice to support that case, in order to improve the
likelihood of the court finding in their favour. As pointed out by JF v DPP;[964]
“…the mere presence, actual or anticipated, of an expert on
the other side provides a wholesome discipline.” [965]
·
With such a system, there is a danger that the court might place undue
reliance on the evidence of the court expert, with the result that it will be
the court expert and not the judge who will in practice decide the case thus
usurping the role of the judge.
·
If the parties are permitted to call their own ‘shadow’ experts in order
to reduce that concern, the appointment of a court expert in addition to the
parties own experts may cause delay and an increase in costs without any
countervailing benefit;
·
Even if parties are precluded from calling their own experts, they would
still have to incur the cost of retaining experts to advise them on the likely
outcome of the proceedings and to assist in preparation for cross-examination
of the court expert, so that the saving in costs might be less than
anticipated.
·
A court expert may be unable to deal with the situation where there are
different schools of thought, that is, where more than one acceptable view on a
particular issue is held in the professional community.
·
Where the issue is novel it may be the subject of intense debate and
contention within the professional community, with a single expert, there is a
risk that such expert may only present one side of this debate, depending on
their viewpoint.
·
The advantages in terms of cost and delays that may be gained by the use
of a single expert may be offset in other ways. Where the issue which is to be
the subject matter of the evidence of a single expert is particularly
contentious, technical or specialised, the parties may have trouble agreeing on
a single expert to be appointed which may lead to delays created by the
negotiations on this issue. Further costs may be accrued where each party
enlist the aid of additional experts to advise them on the merits and
appropriateness of the single expert suggested by the other party to be appointed.
·
There is a lack of certainty that a court-appointed expert will be any
more objective than a party appointed one. As already discussed, the causes of
bias are complex, and not all are generated by allegiance to the instructing
party. Howard expressed doubt at the assertion that single or court appointed
experts are likely to reduce the possibility of bias;[966]
“…it is slightly mysterious that it should be thought that
experts are venal mountebanks when engaged by the parties but transformed into
paragons of objectivity when employed by the courts.”
·
In his view, the adversarial system is more suited to dealing with the
bias problem than the inquisitorial as it requires both parties to conduct a
thorough analysis of the other’s evidence in the hopes of showing it to be
misleading.
“Expert evidence produced under the dual pressures of
expectation and the threat of attack by the opposition is likely to be superior
to that produced by one of a corps of supposedly disinterested individuals
drawn from a list approved by the bureaucracy.” [967]
·
There is a danger that the selection criteria for court appointed
experts will result in the situation whereby only those with safe or popular
views would be appointed as neutral experts to assist the court.
·
The right to a fair trial is jeopardised in circumstances where the
expert’s report is kept from the parties thus preventing them from challenging
or testing its contents. Therefore, to prevent this it would be necessary to
allow each party to introduce their own expert in order to rebut the court
expert’s evidence – this leads to increase costs, delay and inefficiency.
·
It is also arguable that, in such a system, the court expert would be
immune from direct challenge, regardless of his arguments, and the party’s own
expert would effectively be ‘gagged.’ As Howard argues;
“The public debate of the parties’ respective cases
would be supplanted by a decision, reached in secret, on the basis of
unidentified information, by a person whose authority had been established in
advance, and whose views and competence could not be challenged by the
parties.” [968]
(iii)
Conclusion
5.298
In light of the above, it is clear that the introduction of a provision
allowing for the appointment of a single expert would involve a significant
change in current law and practice. It may be that some tangible change to the
current law could be made to facilitate parties to decide jointly on the
appropriate expert to be appointed, rather than being imposed by the court. The
Commission would welcome submissions on this matter.
5.299
The Commission invites submissions on whether parties could be
facilitated to decide jointly on an appropriate expert to be appointed, rather
than having a single expert being imposed by the court.
(2)
Panels of Experts or Mixed Panels
5.300
Along with encouraging the use of single or court appointed experts,
many proponents of change also propose different structures based on the idea
of having an assembly of experts, to use their collective wisdom to give an
expert opinion. There are various forms this could take;
(a)
Panel of Experts
5.301
There has been considerable support for the adoption, in some cases at
least, of the Australian Competition Tribunal model which consists of a panel,
or ‘hot tub’ of opposing experts who debate the issue amongst themselves
without initial intervention from lawyers.[969]
5.302
Under this structure, the opposing experts meet, without initial
intervention from legal counsel, and debate the issues amongst themselves.[970]
The procedure is best summarised by Heerey J:
“This procedure involves the parties’ experts giving evidence
at the same time. Written statements will have been filed prior to trial. After
all the lay evidence on both sides has been given, the experts are sworn in and
sit in the witness box – or at a suitably large table which is treated
notionally as the witness box. They do not literally sit in a hot tub.
Constraints of propriety and court design dictate a less exciting solution. A
day or so previously, each expert will have filed a brief summary of his or her
position in the light of all the evidence so far. In the box the plaintiff’s
expert will give a brief oral exposition, typically for 10 minutes or so. Then
the defendant’s expert will ask the plaintiff’s expert questions, that is to
say directly, without the intervention of counsel. Then the process is
reversed. In effect, a brief colloquium takes place. Finally, each expert gives
a brief summary. When all this is completed, counsel cross-examine and
re-examine in the conventional way.”[971]
5.303
In Quantas Airways Ltd[972] the Tribunal attempted to explain the way in which it was
envisaged the panel would operate, and the role of expert evidence within the
Competition Tribunal;
“The role of expert witnesses appearing before the Tribunal
is to instruct on areas of specialist knowledge in a manner that is ultimately
designed to inform rather than to advocate a particular view. Obviously,
parties will call upon experts whose opinions support their view of the case.
However, it is not appropriate for an expert witness to act as an advocate for
the instructing party at all costs, and professional witnesses should be
willing to concede points which, whilst not advancing the case of the party
engaging them, they believe to be open as a fair and reasonable assessment on
the material before them. The Tribunal will be assisted by expert witnesses who
can clearly explain the relevant issues and concepts and can pinpoint the
differences between opinions in the profession and the reasons for such
differences so that an informed decision can be made as to which opinion should
be accepted on the available evidence. The Tribunal will not be assisted by
experts who uncritically push a party line, avoid challenging questions, and
seek to obscure the real issues in contention.”[973]
5.304
However, the panel of experts procedure has been criticised by some
commentators, and despite its proponents, has been largely confined to the
Competition Tribunal.[974] Davies LJ
attempted to explain why the ‘hot tub’ concept has not been adopted by other
courts within Australia, or indeed, internationally[975]
“Heerey J’s view that an expert’s adversarial bias is often
exposed in the forensic process shows, in my respectful opinion, a naïve but
unfounded faith in the adversarial system. One of two possible consequences is
much more likely at the end of that process. The first is that the judge will
be left with two opposed but apparently convincing opinions by equally
well-qualified experts, neither of them has been shaken in the process. The
second and, unfortunately more likely, consequence is that the judge will be
unwittingly convinced by the more articulate and apparently authoritative
personality. The likelihood of this latter consequence increases as the
complexity of the question in issue increases.
So, in hindsight, after the introduction of the reforms I
have outlined, the Hot Tub method seemed, to many, to be too cumbersome, too
expensive and too adversarial. Hence, the failure to adopt it in other courts.” [976]
5.305
McInnis has suggested that despite its shortcomings, the procedure has
its advantages. He argues that it could be an appropriate system to introduce
at a pre-trial stage; as a preliminary step prior to mediation or at the least
to narrow contentious issues at trial.[977]
(b)
Mixed Panel
5.306
Another alternative which could be introduced in certain categories of
cases could be a procedure whereby the issues in a case would be decided by a
mixed panel composed of a both a number of experts in the particular area and
members of the judiciary, thus combining both inquisitorial and adversarial
elements into a new structure.
5.307
This is the approach taken in Australia in the South Australia
Environment, Resources and Development Court in cases involving land use,
environmental protection and management.[978]
Here, hearings are conducted by a court which is made up of both judges and
experts in areas relevant to the court’s jurisdiction, such as planner,
engineers, architects and scientists, who are referred to as Commissioners.[979]
5.308
The court is composed of three full time Commissioners who are not
lawyers but who have specialist knowledge in town planning, and a number of
part time Commissioners with expertise in other relevant areas who can be
called where needed. The Court also sits with two full time judges.[980]
(c)
Conclusion
5.309
As in the case of the single expert, the Commission would welcome
submissions on whether panels of experts or mixed panels should be used in
certain types of cases.
5.310
The Commission welcomes submissions on whether panels of experts or
mixed panels should be used in certain types of cases.
(3)
Special
Jury
5.311
The concept of the special jury as it has been used throughout history
was discussed in Chapter One. Here it was explained that although various types
of special juries were used over the centuries, the use of a jury composed of
members specially chosen because of their specialised knowledge about the
issues involved in the case ceased in Ireland in the 20th century,
principally due to concerns it represented “survival of class legislation,” due
to the property qualification.[981]
5.312
However, it has been recommended by many academics that the
reintroduction of a special jury in cases of a particularly complex or
specialised nature, has considerable merit.[982]
(i)
Advantages
5.313
The specialist knowledge of the jury would ensure that the experts are
best placed to consider the issues in the case, particularly in cases involving
particularly esoteric concepts and issues.
5.314
Such a system would lessen the likelihood of jury confusion or
misunderstanding in relation to the central issues involved in the case, and
increase the likelihood of the jury reaching a well reasoned and principled
decision.
5.315
Furthermore, the advantages of trial by jury as opposed to trial by
judge alone would be preserved ensuring that the verdict reached represents the
views of a body of reasoned individuals and protects against “the professional
or perhaps overconditioned or biased response of a judge.”[983]
(ii)
Disadvantages
5.316
The disadvantage of this is that, particularly in a jurisdiction as
small as Ireland, where the subject matter in question is so technical as to
warrant the use of a special jury, there is likely to be a limited number of
candidates who could sit on the jury.
5.317
The relative sparsity of the pool of potential experts means that those
who are qualified to sit on a particular jury, are likely to have some
acquaintance with the parties to the litigation, and as jury room deliberations
are not accessible, the potential for bias within the judgment of the special jury
would be undetectable.
5.318
Furthermore, seeking twelve experts in a particular area who are willing
to take several weeks out of their professional careers to sit on a jury is
likely to prove impossible.
5.319
Furthermore, such a jury would be unlikely to be considered as complying
with the Constitutional right under Article 38 to trial by jury by one’s peers
as a panel of experts might not be considered as trial by a fair cross section
of one’s peers. In deBurca and Anderson v Attorney General[984] Henchy J interpreted the constitutional meaning of
“jury” and concluded:
“…the jury must be drawn from a pool broadly representative
of the community so that its verdict will be stamped with the fairness and
acceptability of a genuinely diffused community decision.”[985]
5.320
Therefore, it is probable that a Constitutional amendment would
necessary in order to introduce any system of special juries.[986]
5.321
In its report on a Fiscal Prosecutor and a Revenue Court the Law Reform
Commission considered the reform option of the introduction of a special
Revenue Court composed of experts in an area other than law, for example in tax
or accounting.[987]
5.322
The Commission concluded that it may be considered unconstitutional if
the adjudicator in a trial did not have a legal qualification. Furthermore, individuals
not legally qualified would not satisfy the qualifications for appointment as a
judge as set down by statute, and so their relevant experience would be
doubtful.
(iii)
Conclusion
5.323
The Commission would not recommend the introduction of a system
whereby special juries are to be used in any category of cases.
(4)
Court Assessors or Advisors
5.324
As already discussed in Chapter One, there is legislation currently in
force in this jurisdiction providing for the use of assessors, as opposed to
expert witnesses, in certain categories of cases.
5.325
Nevertheless, the use of assessors is rare in practice, and they are
predominantly confined to admiralty proceedings.
5.326
However, a number of academics have suggested that increased use of
assessors, who would act not as witnesses giving evidence in court, but as
advisors to the judge, assisting him or her to understand technical concepts,
is a viable replacement of the current system of party appointed expert
witnesses.[988]
5.327
An assessor would differ from a court appointed expert in a number of
ways. The assessor would be appointed by the court for the purposes of
assisting the court by giving it specialist knowledge on the issues involved in
the case. In this regard, the assessor would not be considered a witness so
would not be required to swear an oath to the court.
5.328
Furthermore, the information given to the court would not be available
to the parties and the parties would not be able to cross examine the expert
assessor on the information given. The parties therefore have no way of
assessing the independence or potential for bias on the part of the assessor.
5.329
It is also arguable that the use of assessors is unlikely to lead to
reduced costs as both parties are likely to continue to recruit their own
experts or advisors if they are not entitled to have regard to the information
given by the assessor in court.
5.330
Based on these factors, increasing the use of assessors in either
criminal or civil litigation is unlikely to be considered beneficial.
5.331
It is submitted that a better way to increase the knowledge of the
judiciary in technical or scientific matters is to encourage members of the
judiciary to attend continuing professional development courses in such areas,
rather than the use of specialist advisors in individual cases who remain
unaccountable to either party or to the court.
5.332
As mentioned in Chapter 1, in the patent infringement case Kirin-Amgen
Inc and ors v. Hoechst Marion Roussel Ltd and Ors[989]
the House of Lords were, with the consent of the parties, given a series of
seminars in camera prior to the case by a Professor of Biochemistry at
Oxford University to explain the relevant aspects of recombinant DNA
technology.
5.333
This it, is submitted, is a preferable approach to the use of assessors,
as the information given in a series of seminars is likely to be generalised
information on the subject and not specifically applied to the facts of the
case at hand so will thus avoid the taint of bias of the person providing the
expert information.
5.334
Furthermore, members of the judiciary are likely to gain more from
attending such seminars as the knowledge gained will stand to them in future
cases, rather than the arbitrary knowledge gained by an assessor from a
specific set of facts of an individual case.
5.335
The Commission does not recommend that the use of court assessors
should be encouraged in a wide variety of cases.
5.336
The Commission does recommend that members of the judiciary should be
encouraged to attend formal training in complex subjects that commonly arise in
cases before them, such as forensic science, accounting and engineering.
G
Conclusion
5.337
This chapter has discussed a range of procedural reforms that could have
significant beneficial effects on the current expert testimony structure.
5.338
Although some of these suggested reforms are quite radical and far
reaching, others would involve little effort to implement but their effects
could be significant. The Commission therefore recommends that procedural
reforms similar to those outlined above be introduced where possible.
5.339
The following chapter will discuss a range of reforms which aim at
improving the quality of expert testimony through education and regulation of
those who give such evidence.
6
CHAPTER 6
sanctions, accountability and governance of expert witnesses
A
Introduction
6.01
As demonstrated in the previous chapters, there are many cases where the
expert’s failure to carry out their duties, or the expert’s negligence in the
giving of expert evidence, have had onerous implications for one of the
parties. As a result, it is clearly necessary to consider ways to prevent undesirable
behaviour on the part of experts and to decide on the consequences where an
expert has been found to have been acting negligently or inappropriately.
6.02
Reducing the prevalence of bias, and promoting high standards amongst
expert witnesses, is clearly best achieved by a two pronged approach; clear
instruction for experts on the standards expected of them in their capacity as
expert witnesses, coupled with the imposition of sanctions on experts for
negligence or breach of duty.
6.03
However, it must be borne in mind that the introduction of a range of
sanctions could also have negative consequences, for example, the creation of
additional delays or expenses, which could go against the interest of doing
justice between the parties. Any suggested reforms must therefore not impose
excessive burdens on parties to litigation which may negate the benefits of
their introduction.
6.04
Such reforms will not however address all problems that have been
identified with the system of expert testimony. Indeed the warning of Hallett J
must be borne in mind;
“However good the training, however good the system of
accreditation, however vigilant the professional associations, miscarriages of
justice have undoubtedly occurred and will continue to occur unless expert
evidence is put into its proper context; namely, it is an opinion based
hopefully on fact and science but nevertheless an opinion.”[990]
6.05
Part B of this chapter discusses the merits of introducing a system of
formalised training and accreditation of experts and consider what would be the
most appropriate forum for introducing such a system. Part C goes on to
consider whether or not an expert witness regulatory body or disciplinary body
is needed and if so what form should this take. Part D considers the extent of
the existence of an immunity from suit for expert witnesses and questions
whether expert witnesses should be entitled to avail of such an immunity.
Part E looks at the range of alternative existing remedies that can be used
where an expert has acted negligently or wrongfully.
B
Training & Accreditation of Experts
6.06
One of the principal concerns caused by the absence of set requirements
or standards in terms of qualifications or experience to be considered an
‘expert’ for the purposes of giving expert testimony is that the current
process for determining expertise; questioning during examination-in-chief and cross-examination;
may not be sufficient to prevent persons purporting to be an expert from giving
expert testimony on a subject matter on which they are not suitable to testify.
6.07
Although it has been acknowledged earlier that the formal qualifications
of the expert will greatly assist the trial judge in determining expertise,
assessing someone’s standard of specialisation in an area governed by no formal
accreditation, study or training and where the person has gained their
expertise through experience alone, may prove difficulty.
6.08
The potential difficulties become clear when it is considered that the
judge is ultimately given the task of evaluating the skill and ability of the
witness to give evidence on a subject, where the reason such evidence is being
admitted is because the subject is outside the range of knowledge of the judge.
(1)
Fraudulent ‘Expertise’
6.09
The most serious potential consequence of the lack of formal regulation
of persons purporting to be an expert is demonstrated by the English case in
2005 of one Barian Baluchi.[991] Here, a
taxi driver who fraudulently claimed to be a consultant psychiatrist was
convicted on more than 30 charges of misrepresenting himself as a medical
expert.
6.10
A similar incident occurred in 2007 in England where one Gene Morrison
was found guilty of perjury and obtaining money by false pretences where he
fabricated a fake degree certificate from a fictitious university and posed as
a forensic psychologist without proper qualifications to appear in court giving
expert advice in payment from solicitors.[992]
6.11
Although such instances are undoubtedly rare, these cases do expose the
possibility that if the giving of expert witness testimony is viewed as an
increasingly lucrative career, it could prove enticing to individuals to claim
they are an expert in a particular subject area in order to be hired by a party
to litigation where in reality they have no such expertise.
6.12
Where an individual testifies as an expert witness in a trial and is
later exposed as a fraud, this will necessarily have serious implications for
the parties to the action. In the wake of the conviction of Morrison, the
police were required to conduct a thorough review of the 700 or more cases in
which he had given evidence. The potential for retrials, leading to additional
delay and expense, not to mention miscarriages of justice, is considerable.
6.13
There is a certain merit therefore to the suggestion that some form of
professional regulation of expert witnesses would be beneficial in guaranteeing
a high level of expertise and in screening potential charlatans set on abuse of
the expert witness system for profit.
(2)
Existing Examples of Training & Accreditation
6.14
Many commentators have spoken about the merits of introducing a system
whereby any person wishing to give expert evidence would be required to undergo
mandatory training with a dedicated training body for expert witnesses.
6.15
Any person who undergoes such training would be formally accredited with
having passed the necessary level of training and this training and
accreditation would be a necessary requirement in order to be permitted to give
expert evidence in court. This would, in theory, reduce delays in the trial
process as the expert would not be required to prove their expertise in court;
the formal accreditation would be sufficient proof.
6.16
Such a system could also permit special considerations to apply in
certain instances, where the expert is seeking to give evidence on a one-off
basis. For example, experts could be permitted to act in a set number of cases
before evidence of formal training and accreditation becomes necessary.
(a)
Ireland
6.17
In this jurisdiction there is no mandatory requirement for persons
wishing to act as expert witnesses to undergo any formalised training course.
However, there are a number of ways in which expert witnesses can be educated
about the requirements of their role in Ireland.
6.18
For example, a range of training courses are commercially available in
courses such as Courtroom Skills, Advanced Cross Examination Skills and
Excellence in Report Writing to professionals who hold themselves out as
experts in their profession.[993] In
the civil context, it would appear that medical experts make up the bulk of
those who give expert evidence in court, notably physiotherapists, occupational
therapists, psychologists. In addition, in recent years accountants and
computer analysts have been required as forensic witnesses. In the
criminal context, forensic scientists, officials from the State laboratories
and public analysts are common expert witnesses who require training.
6.19
Furthermore, various professional bodies governing different industry
sectors often provide their own training courses for professionals within the
particular discipline who may be called upon to give expert evidence in a legal
forum. Such courses educate professionals in courtroom skills and excellence in
report writing, and help to educate the professionals in how best to convey
their expert knowledge in easily understood terms.
6.20
Finally, many courses provided by Universities and Institutes of
Technology in subject areas which are likely to be the subject matter of expert
testimony are beginning to include a module on the role of expert witnesses as
part of the course. For example, the B.Sc in Forensic Science and Investigation
provided by the Institute of Technology, Sligo, places a strong emphasis on
scientific communication and the role of the expert witness.[994]
6.21
These courses are a valuable source for experts as they are normally
provided by solicitors or barristers or other persons well acquainted with the
legal system and the structure of the expert testimony system. However no
formal qualification is earned by attendance at these courses and completion of
a training course does not at present lead to any professional certification or
accreditation that denotes that a certain standard of understanding has been
gained by the expert witness.
6.22
The closest structures akin to a professionally accredited body for
expert witnesses currently in place are the publishers who compile a directory
of experts such as the Expert Witness Directory of Ireland.[995]
All of the expert witnesses listed in this directory have provided two
professional references from practising solicitors or barristers who have
instructed them within the preceding 3 years. The reference form asks the
referee to rate the expert from very good to very poor on aspects of an expert
report such as accuracy, understanding and analysis of the expert's subject
area, presentation and adherence to time scale.
6.23
Any expert witness who provides satisfactory references under the
process outlined above is able to use the ‘Expert Witness Directory of Ireland
Irish Checked’ logo on their stationery, which will be valid for one year from
the date of publication. Use of the logo refers to individuals who have passed
the checking procedure and those who fail to meet the requirements are not
entitled to use the logo.
6.24
Experts who fail to meet any of the requirements set out in the Code of
Practice of the Expert Witness Directory will not be issued with the updated
logo until they satisfy the publishers that they have complied with these
requirements. Where any of the ratings from solicitors or barristers fall below
‘good’, the references are carefully scrutinised. Other than in very
exceptional cases, low ratings lead to the expert's exclusion from the listing
of checked experts.
(b)
England
6.25
There is considerably more training and accreditation available for
expert witnesses in the United Kingdom than currently available here. There are
a number of major accreditation bodies, however, as these all operate privately
and without cooperation or harmonisation of the training provided, setting
common standards for expert witness training remains unaccomplished.[996]
6.26
Many English law schools,[997]
as well as a large number of private professional bodies, for example the
Expert Witness Institute,[998] The
Society of Expert Witnesses,[999] The UK
Register of Expert Witnesses,[1000] and the Academy of Experts[1001]
cater for the needs of experts by providing such resources as help-lines,
mentoring schemes and training courses about the basic relevant laws, the role
and duty of an expert witness and courtroom skills. Most of this training is
provided by lawyers, who are proficient in instructing an expert about such
issues as dealing with disclosure and privilege rules, and witness
familiarisation with report writing and cross examination.[1002]
6.27
Membership of these expert witness bodies requires the individual to
prove their expertise, normally by producing an up-to-date curriculum vitae
which shows relevant professional qualifications along with satisfactory
references from a set number of solicitors or barristers. Listing on the UK
Register of Expert Witnesses has identical vetting procedures to the Irish
register.[1003]
6.28
Stricter membership criteria is imposed by the recently established,
non-profit, ‘Council for Registration of Forensic Practitioners’ (CRFP) set up
by the Home Office which assesses and accredits the competence of individuals
in most forensic science disciplines to give expert evidence in court. The
registration process is extremely thorough and involves an assessment of recent
case work by assessors experienced in the field of forensic science.
Furthermore, registered members are subject to periodic reassessment to ensure
fitness to practice.[1004]
6.29
Support for the introduction of standardised training and improvement of
the quality of expert witnesses is burgeoning in England and Wales among both
practitioners and academic commentators.[1005]
In his report on improving the civil justice system Lord Woolf recommended
that;
“Training courses and published material should provide
expert witnesses with a basic understanding of the legal system and their role
within it, focusing on the expert's duty to the court, and enable them to
present written and oral evidence effectively.”[1006]
6.30
However, Lord Woolf recommended that such training should not be
compulsory, and advised against the introduction of an exclusive system of
accreditation, as he believed this might exclude potentially competent experts
who do not undergo the training and accreditation process, thus narrowing the
pool of available experts.
6.31
Similarly in the criminal context, Auld LJ recommended in his Review of
the Criminal Justice System that one standard professional body should be
created in England and Wales for the purposes of setting standards for and
monitoring the conduct of forensic scientists, as well as maintaining and
monitoring the regulation of a register of accreditation. In order to carry out
this recommendation, he advised that all of the existing expert witness
professional organisations should be amalgamated into the existing Council for
the Registration of Forensic Practitioners. [1007]
6.32
The English Legal Services Commission also considered the issue of
training and accreditation in their research paper on the use of experts in
publicly funded cases. In this paper they did not recommend the creation of a
dedicated expert witness accreditation body;
“…we do not regard the compulsory registration of all expert
witnesses as practicable. Our proposals are intended to facilitate and
encourage the use of accredited experts, not to confine solicitors to
instructing only accredited experts.” [1008]
6.33
However, the Legal Services Commission did encourage the development by
professional bodies of training and competency assessments within the
individual disciplines, along the lines of those provided by the Council for
the Registration of Forensic Practitioners for those engaged in forensic
science. They expressed a belief that accreditation, whilst not capable of
completely removing the risk of deficient expert evidence, that this would
“reduce the likelihood, and this will benefit the food administration of
justice.”[1009]
6.34
There have also been a number of English cases that have considered
witness training courses. In these cases it is recognised that some training
has the potential to amount to coaching the experts on how best to orchestrate
the evidence in favour of their instructing party, in the words of the trial
judge in R v Salisbury,[1010]
“capable of converting a lying but incompetent witness into a lying but
impressive witness.”
6.35
It has therefore been repeatedly emphasised in the English courts that
professional witness familiarisation training should only be for the purpose of
instructing experts on their role and duty. For example, in R v Momodou and
Limani[1011] Judge LJ
explained that there is a distinction to be made between witness training or
coaching and witness familiarisation.
6.36
He acknowledged that training or coaching of a number of people together
who are witness to the same event carries the inherent risk that the accuracy
of the witness will be adversely affected as whether “deliberately or
inadvertently, the evidence may no longer be their own.”[1012]
However, he found that the possibility of adverse effects caused by coaching of
witnesses should not act to preclude pre-trial arrangements to familiarise the
witness with the lay out and structure of the court.[1013]
6.37
This reasoning was used as the basis for Phillip LJ’s dismissal of the
appeal in R v Salisbury.[1014] Here the appellant argued that the case should be
appealed on the basis of the crown’s failure to disclose that its expert
witnesses had undergone a training course prior to the trial.
6.38
Phillip rejected the contention that such training gave them an unfair
advantage over other witnesses or that it added a specious quality to their
evidence. He approved the comments of the trial judge about the effect of the
training;
“What they would have received was knowledge of the process
involved. It was lack of knowledge and understanding which created demand for
support in the first place. Acquisition of knowledge and understanding has
probably prepared them better for the experience of giving evidence. They will
be better able to give a sequential and coherent account. None of this gives
them an unfair advantage over any other witness.”[1015]
6.39
These decisions infer that the courts appear to be in favour of witness
training where this training is limited to familiarising the witnesses with the
courtroom set up and structure. They are, however, wary of any training that
amounts to coaching of a witness, or that would result in the witness altering
their evidence.
(c)
Australia
6.40
In Australia, similar to the United Kingdom, there are a number of
dedicated private professional bodies that provide training for expert witness.
Furthermore, many of the professional bodies governing various disciplines also
offer training sessions to professionals for those who wish to act as expert
witnesses.[1016]
6.41
Also similar to the United Kingdom and Ireland, some expert witness
training courses are offered in academic institutions.[1017]
Furthermore, there are a number of service providers dedicated to provision of
expert witness services along the lines of the Irish Expert Witness Directory
which permit experts to register with the body subject to appropriate proof of
qualifications and adequate peer review.[1018]
6.42
As yet however, there is no formal requirement in any Australian
jurisdiction for expert witnesses to undertake standardised training leading to
formal credentials. However, there are similar indications to those expressed
in England and Ireland that support for this idea is growing.
6.43
For example, Freckleton, Reddy & Selby’s comprehensive study of
Australian judicial perceptions of expert evidence in 1999 found overwhelming
support for “training for expert witnesses to communicate their views better
and to fulfil their role as forensic witnesses more professionally.”[1019]
6.44
More recently, the Honourable Justice Peter McClellan, who was
responsible for considerable reforms relating to the giving of expert testimony
in the Land and Environment Court of New South Wales, also expressed keen
support for the imposition of professional standards through accreditation of
experts. However he hinted that the responsibility for this should lie with
professional bodies governing the various disciplines rather than the court. He
stated;
“…I have not infrequently been asked whether courts should be
responsible for accrediting experts who may give evidence before them. The
commonly expressed expectation is that courts would thereby be able to exclude
witnesses that are neither appropriately qualified, or had failed to give
evidence which reflected relevant levels of professional competence or
objectivity. There are many difficulties with such a proposal. However, given
the frequency with which experts give evidence in courts and the reliance
placed on their learning and professional integrity, an increasing interest by
professional bodies in maintaining appropriate standards from those who give
evidence should be encouraged."[1020]
(3)
Difficulties caused by Lack of Mandatory Training
6.45
As already mentioned, in this jurisdiction there is no mandatory
requirement for a person seeking to act as an expert witness to undertake any
form of education about their role and applicable duties. As a result, even
some experienced witnesses do not have a full understanding of what the role of
the expert witness entails.
6.46
Recent research carried out in England on expert witnesses in practice
concluded that the training of expert witnesses to give evidence is still
patchy and unregulated, creating a continuing risk of miscarriages of justice.[1021]
The research found that approximately one in ten experts had no training at all
and did not intend to undertake any. Penny Cooper, a barrister and a governor
of the Expert Witnesses Institute, who conducted the research explained that
high profile miscarriages of justice such as the Sally Clark case are
inextricably linked with lack of training. She argues that court rules should
be amended to impose a duty on judges and lawyers to consider the training an
expert has had before allowing them to give evidence.[1022]
(4)
Should Mandatory Training & Accreditation be introduced?
6.47
It can be argued that the above difficulties could be alleviated by
requiring experts to undergo some sort of formalised training for their role.
Such training should educate individuals about the role and duties applicable
to expert witnesses. It should also enable them to improve their oratory skills,
to ensure that they recognise the boundaries of their area of expertise, and to
successfully convey technical information to the court, in order to cope with
cross examination and examination in chief. The training should also teach
experts how to create structured, informative expert reports.
6.48
Set up in 1985, the Irish National Accreditation Board (INAB) provides
accreditation for calibration and testing laboratories.[1023]
INAB is responsible for carrying out quality checks on the Forensic Science
Laboratory. In the 2005 Report on the Establishment of the DNA Database,
the Commission recommended that INAB should give periodic reviews of the
independent statutory body that the Commission recommended be set up to monitor
the profiling and storing of the DNA database.
(a)
Disadvantages
6.49
It must be acknowledged that the practical administration of
accreditation on a standardised basis may prove very difficult for one body
alone given the unlimited scope of the areas on which expert evidence may be
given. As a result, a separate accreditation board in each particular
discipline may be required in order to conduct sufficiently thorough monitoring
of expert witnesses.
6.50
For example, take the option of giving the INAB the responsibility for
the accreditation of all expert witnesses. The current function of INAB is to
monitor laboratories, which would imply it would be capable of reviewing
forensic and medical experts. However, it may not have the necessary experience
or knowledge to carry out effective quality assurance on experts in other
unrelated areas, such as non-science related disciplines.
6.51
There are also certain areas that may form the subject matter of expert
testimony which might not lend themselves easily to formal accreditation
processes, particularly where the area is not governed by any professional body
or is a new or emerging form of expertise.
6.52
Furthermore, mandatory accreditation also has its drawbacks, principally
the danger that it could lead to a monopoly of professional expert witnesses
who make repeated court appearances but who become out of touch with the
profession or subject matter on which they are giving expertise. [1024]
6.53
Another potential disadvantage of the introduction of such a scheme is
that requiring all experts wishing to give expert testimony in court
proceedings to undertake formal training would impose a significantly onerous
resource, administrative and temporal burden.
6.54
The argument has also been made that the credibility of a court-required
training and accreditation scheme would be undermined each time an accredited
expert was criticised in court or where the evidence of a non-accredited expert
was preferred.[1025]
6.55
It can also be argued the introduction of mandatory training and
accreditation would not have prevented criminals from impersonating expert
witnesses, as in the cases of Barian Baluchi and Gene Morrisson as
the forged credentials used by these individuals would have probably fooled any
expert witness regulatory body just as easily as the court was convinced. Training
may therefore regulate expert witnesses who fall below a certain level of
quality, but will not prevent individuals from misrepresenting themselves as
qualified experts in a particular area.[1026]
6.56
The argument was made in Chapter 5 that the system already in place,
whereby the expert is subject to scrutiny from both the judge and the
opposition party, is sufficiently adequate to ensure the quality and
authenticity of any expert witness giving evidence in court. In light of this
argument, and in view of the disadvantages listed above, the desirability of
introducing the reform of mandatory training and accreditation is unclear.
(b)
Advantages
6.57
On the other hand however, there may be tangible benefits accruing from
training of expert witnesses. This is particularly so if the training goes
beyond witness familiarisation with the courtroom set up, but also encompasses
informing the experts about the applicable laws governing the admissibility of
expert evidence in court, and also clearly elucidates the role, duties and
function of experts.
6.58
Such training, if provided at the time the expert is first
enlisted, would help to ensure that any person purporting to give expert
evidence clearly understands the responsibilities attached to the task, and
ensure high quality, reliability and impartiality of the expert evidence from
the outset; from the initial examination of the issues, to the preparation of
the expert report and to the eventual expert testimony in court.
(5)
Training for Judiciary and Other Members of the Legal
Profession
6.59
The point has also been made on numerous occasions that judicial
training in the field of science and other technical areas may have two-fold
benefits; first, it would reduce the necessity for expert evidence in some
cases, and second, it would better equip judges to determine the reliability of
expert evidence before them and to detect when an expert is giving partisan or
fraudulent expertise.
(6)
Training & Accreditation: Conclusion
6.60
In light of the above, the Commission is inclined towards retaining the
current arrangements, in which relevant training for expert witnesses is given
- and received - on a voluntary basis, rather than on the basis of a mandatory
system. The Commission is concerned that a mandatory system may fail to
distinguish between quite appropriate familiarisation of witnesses with courts
(which appears to the Commission to be the basis of current voluntary
arrangements in Ireland of which it is aware) and inappropriate coaching of
experts.
6.61
The Commission provisionally recommends that current voluntary
arrangements for training of expert witnesses, in which appropriate
familiarisation training for experts is given, should continue, and that a
mandatory system should not be introduced.
C
Professional Expert Witness Regulatory & Disciplinary
Bodies
6.62
A number of significant disadvantages have been identified as attaching
to the introduction of mandatory training and accreditation of experts. An
alternative and, it is submitted, less onerous, reform would be the creation of
regulatory and disciplinary bodies for expert witnesses which would provide a
dual purpose of both imposing binding obligations on expert witnesses and also
monitor their enforcement.
(1)
Dedicated Regulatory Body for Expert Witnesses
6.63
One option for reform that has received considerable support is the
creation of a dedicated regulatory body for expert witnesses. In accordance
with the principles set out in the government 2004 White Paper Regulating
Better,[1027] such a
body need not necessarily be created on a statutory basis.
6.64
All persons engaged in expert witness work would be given the option of
registration with this body, subject to proof of expertise based on relevant
qualifications, experience and/or references from solicitors or barristers. A
register of members would thus be available that would act as a directory of
registered available experts for the use of solicitors, barristers and parties
to litigation.
6.65
The body would be responsible for continuing review of experts and the
expert witness system to decide on what training is needed and updating and
informing experts about continuing developments in the case law. Such a
regulatory body would also be the appropriate organisation in which to provide
training and accreditation processes as discussed in the last section.
6.66
The expert witness regulatory body should be responsible for the
creation of a Code of Ethics, or Guidance Code for expert witnesses and
registration would require the expert to agree to be bound by this Code. The
body would be responsible for monitoring experts to ensure compliance with the
Code and where necessary, for example, where a failure to conform to the Code
has been identified, to refer the expert witness to a disciplinary body to
allow them to impose professional disciplinary measures or sanctions.
6.67
One issue for consideration is whether registration with such a body
would be a mandatory requirement to be permitted to give expert testimony. If
mandatory training is considered necessary, this would necessarily make
affiliation with this body compulsory. As already noted, the Commission is
currently of the view that such training should not be mandatory.
6.68
Moreover, it might also be considered that compulsory registration may
disproportionately limit the pool of available experts and impose an undue
burden on individuals who are enlisted to give expert testimony on a one-off
basis. It would therefore seem necessary to ensure that registration is not
compulsory and to ensure that the court retains an overriding jurisdiction to
hear evidence from non members, albeit that evidence of being a registered
member would help to establish integrity.
(a)
Support for this
Reform
6.69
Registration with this body would provide the expert with added evidence
of their expertise which would assist in proving expertise before the court.
This body could also provide a valuable source of information and support for
experts about their role and function, setting out guidance notes and protocols
on the various aspects of the work of an expert.
6.70
A comprehensive AGIS report which surveyed expert practice in a number
of EU member states revealed that one of the main common denominators for
judicial experts surveyed was the felt need for a regulatory body to provide
initial and continuing education on their role and duty and the legal
profession, and also to act as an interlocutor with judicial institutions. The
report noted that in many jurisdictions the regulatory bodies are consulted on
issues such potential legislative and procedural amendments to the system of
giving expert evidence. [1028]
6.71
In the section on the AGIS report that outlined the position in Ireland,
it was explained that a meeting had taken place for the purposes of providing
information for the report which was attended by members of the legal
profession, representatives from a commercial training company that provides
training for expert witnesses, representatives from professional bodies which
often form the subject matter of expert evidence, and other interested parties
that are knowledgeable about the Irish system of expert testimony. [1029]
6.72
The AGIS report revealed that representatives at the Irish meeting
recommended the creation of one central body to establish a register of experts
with a system to ensure the experts meet certain standards. It was further
suggested that if some professional body for expert witnesses was introduced
then it should include members the Bar Council and the Law Society, as well as
representatives from professional bodies governing different disciplines which
form the subject matter of expert evidence, so that the key areas, both legal
and professional, are covered.[1030]
(b)
Disadvantages of
this Reform
6.73
The main differentiating factor between any body set up to regulate
expert witnesses and other regulatory bodies operating in Ireland at present
would be that other bodies govern conduct or professions carried out on a full
time basis whereas the giving of expert testimony encompasses only an element
of the work of a professional. It has been stressed that, in the interests of
ensuring the expert remains au fait with the subject matter of their expertise;
this should take up the bulk of their work, and not in-court testimony.
6.74
Requiring registration may therefore impose an onerous obligation on
those persons wishing to act as an expert witness, particularly those who are
only to give evidence on a one-off basis. Even though registration should be
optional in theory, in reality the situation would probably occur whereby extra
weight would be given in court to the evidence of registered experts so that
all expert witnesses would feel pressurised into registration, which may be a
costly burden where the expert only wishes to give evidence on a one-off basis.
6.75
If registration with such a body is optional, this leaves the
possibility open that alternative expert witness regulatory bodies may be set
up in competition, as has occurred in England, where a plethora of such bodies
have been created in recent years for example the Expert Witness Institute, the
Academy of Experts, the Society of Expert Witnesses
6.76
Although this in itself is not a disadvantage as competition between
such bodies may lead to higher standards of expert evidence all round, some
commentators have suggested that in England the situation has emerged where
none of the major professional bodies for experts work in harmony, which has
led to major problems. Bawdon has suggested:
“There appears to be no love lost between the three groups
despite, or perhaps because, of the fact that they all claim to cover much the
same ground. Each insists it is independent, democratic, non-profit making, and
aimed at raising standards and acting as a voice for experts. Whatever impact
their existence may ultimately have on standards within the litigation process,
so far there is not much sign of improved behaviour among experts outside the
legal sphere. Quite the opposite, in fact.”[1031]
(c)
Alternatives
6.77
The introduction of a distinct body for the regulation and registration
of expert witnesses can be seen as having considerable merit. However, the
possibility that it would lead to an anti-competitive monopoly of control over
all expert witnesses in one organisation, and impose an undue burden on
individuals engaged in the giving of expert testimony on a one-off basis is
also strong. A number of different or alternative suggestions for reform must
therefore also be highlighted;
(i)
Introduce a
Tiered System of Registration and Membership of the Regulatory Body
6.78
One way of preventing registration from being an excessive financial
burden would be to introduce a system whereby there would be various categories
of membership of the society based on the amount a times an expert is likely to
be enlisted to give expert testimony, something akin to the membership
structure of the Society of Actuaries in Ireland,[1032]
or the Society of Expert Witnesses in England.[1033]
6.79
Those who only give expert evidence on a one-off basis could apply for
the lowest and least expensive form of membership, for example an ‘association’
which would merely require an acknowledgment of the Code of Ethics or Guidance
Code governing expert witnesses and an agreement to abide by this, as well as
undergoing some basic training about the role and duty of an expert
witness.
(ii)
No Regulatory
Body and Vesting Regulatory Role of Experts with Professional Bodies governing
Various Disciplines
6.80
An alternative recommendation to the creation of a dedicated regulatory
body for expert witnesses would be for the Commission to recommend and
encourage the professional bodies governing various professions that are often
the subject matter of expert testimony to increase their powers of inspection
to include a specific mandate for the supervision of professionals within the
discipline engaged in acting as expert witnesses.
6.81
Such bodies would be encouraged to set out a Code of Ethics for their
members to abide by when acting as an expert witness. Having the Code of
Guidance aimed at a particular discipline would enable it to be more specific
than a general code aimed at all expert witnesses. This would allow it to be
more detailed in its provisions, giving greater guidance about the parameters
of permitted expert evidence in the context of the particular discipline.
6.82
The accusation could however be levelled that it is unfair that some
experts would be compulsorily required to conform to a certain standard of
behaviour as a result of their membership – which may in itself be mandatory
for the particular profession – of a professional organisation. This could be
seen as imposing an additional burden on experts who are part of some professional
body than those not affiliated with any such body.
6.83
In the alternative, it could be considered that it is at the discretion
of each professional body to decide on necessary principles and standards of
behaviour within the discipline, and where this discipline is commonly the
subject matter of expert testimony, it cannot be considered too radical a
requirement to conform to a certain standard in the giving of expert testimony.
(iii)
No Regulatory
Body but Creation of a Separate Disciplinary Body Responsible for all Expert
Witnesses
6.84
It was stressed above that in the event that a regulatory body for
expert witnesses is introduced, registration or membership of this should be
not be made mandatory as this would have the undesirable effect of limiting the
pool of available experts. However, non-registration with an expert witness
regulatory body should not be a defence to taking action where an expert
witness has acted negligently or engaged in professional misconduct.
6.85
The benefits of having some form of control over the expert witness
process cannot be denied. Therefore, regardless of the introduction or not of a
regulatory body for expert witnesses, there should be a separate disciplinary
body responsible for the disciplining of expert witnesses. The functioning of
this will now be discussed.
(d)
Dedicated Regulatory Body: Conclusion
6.86
Based on this discussion, and consistent with its provisional
recommendation that mandatory training should not be introduced, the Commission
provisionally recommends that a mandatory regulatory body for expert witnesses
should not be introduced.
6.87
The Commission provisionally recommends that a mandatory regulatory body
for expert witnesses should not be introduced.
(2)
Dedicated Disciplinary Body for Expert Witnesses
6.88
As mentioned above, one of the consequences of registering with a
regulatory body for experts would be that the expert automatically agrees to be
bound by the Code of Ethics of the regulatory body. This body would be
responsible for monitoring experts to ensure compliance with the Code and, where
necessary, for deciding that disciplinary measures should be taken against the
expert.
6.89
Alternatively, it has been suggested that existing professional bodies
governing particular areas of expertise should be given increased powers of
regulation and should be encouraged to create a binding Code of Conduct for
their members to abide by in the giving of expert testimony, and that these
bodies would be entitled to take disciplinary measures in the event of a breach
of this code by their members.
6.90
The decision to take disciplinary action would occur where the body in
question has received complaints from members of the public, the legal
profession, other experts or the court, due to a perceived failure by a
particular expert to comply with the code. The body should undertake a complete
investigation of such claims and there should be a fully functioning appeals
procedure to enable an expert to address criticisms.
6.91
However, it is submitted that a strong perception of bias or unfair
procedures could be created where the body that trains and regulates expert
witnesses is also responsible for the discipline of its members. The
introduction of a separate, independent disciplinary body to carry out the task
of imposing sanctions on expert witnesses who are considered to have breached
their role and duties has therefore considerable merit.
6.92
Such a disciplinary body should not be required to rely on references
from the regulatory body for expert witnesses or the regulatory committees of
the various professional bodies governing different professions, but could act
on its own accord wherever they form the opinion that an expert witness has
engaged in misconduct or negligent behaviour.
(a)
Example: The
Solicitors Disciplinary Tribunal
6.93
This is an independent statutory body, composed of both solicitors and
lay members who are appointed by the President of the High Court to investigate
complaints of misconduct or negligence on the part of solicitors. It is
independent from the professional body governing the profession of solicitor,
the Law Society of Ireland, which also has its own disciplinary structure in
place.[1034]
6.94
Where the Tribunal decides that a complaint discloses a prima facie
case of misconduct by a solicitor, the Tribunal will carry out an inquiry,
conducted in public and with oral evidence.[1035]
6.95
Where an application has been made to the Tribunal concerning a
solicitor, and a prima facie case made out in a subsequent inquiry, this
may result in the Tribunal or the President of the High Court imposing such
sanctions as requiring the solicitor to pay a fine, being suspended from
practice for a set period of time, or having his or her name struck off the
Role of Solicitors.
6.96
The fact that it is independent from the regulatory body for solicitors
means that the Tribunal provides a feasible model on which to base any
regulatory body for expert witnesses as it is submitted that any such body
should necessarily be, and be seen to be, independent from any professional
body that provides training and guidance for expert witnesses
(b)
Alternative:
Encouraging Professional Bodies to Introduce their Own Disciplinary and
Investigative Procedures
6.97
As above, if it is considered that an investigative and disciplinary
body dedicated to monitoring expert witnesses should not be introduced as it
would impose an excessive financial and administrative burden, encouraging
professional bodies to increase their investigative and disciplinarian powers,
or to create their own disciplinary committee within the organisation, is a
viable alternative.
6.98
This may in fact prove a preferable option for reform as it can be
argued that the various professional bodies will have the necessary expertise
and knowledge in the particular area to enable them to determine whether or not
the evidence given by the expert has fallen below the necessary standard, or
whether or not the expert has engaged in misconduct.
6.99
On the other hand, the criticism could be levelled that vesting
disciplinary power with professional bodies governing various subject areas
might prevent novel theories emerging from that area of expertise as the
committee might require their member experts to ‘toe the party line’ and must
not be willing to allow them explore new theories which had not been fully
accepted by the professional body.
(c)
England
6.100
In England, as already mentioned, there are a number of expert witness
regulatory bodies which provide training for expert witnesses, and allow
experts to register with the bodies. Although these bodies impose strict
vetting procedures for their members, and some impose codes of practice on
their members backed up by disciplinary procedures,[1036]
here is no formal disciplinary body dedicated to investigating and monitoring
all expert witnesses.
6.101
However, a number of areas of expertise are governed by regulatory
bodies which also contain disciplinary committees to monitor their members, or
are governed by separate disciplinary boards which provide a disciplinary
scheme for professionals in the particular area of expertise.[1037]
6.102
Interestingly, there have been some English cases where the courts have
referred an expert who has been found to have breached his duty to such
professional bodies for discipline purposes.
6.103
In Pearce v Ove Arup Partnership Ltd and Others[1038] Jacob LJ held the claimant’s expert witness to be in
breach of his duties by giving evidence that was “biased and irrational” and
significantly lacking in objectivity. He rejected the claimant’s case and
further held that the expert witness was heavily responsible for the case
coming to trial in the first place “with its attendant cost, expense and waste
of time.”
6.104
Jacob LJ went on to acknowledge that there is no rule providing for
specific sanctions in such cases, nor does a specific accrediting body exist to
whom an expert could be referred. However, he appeared to be of the
opinion that despite the lack of such a body or statutory sanctions for breach,
experts should nevertheless be made accountable in situations where their
breach of duty has led to considerable unnecessary expense and delay.
6.105
The appropriate body to take such measures, in Jacob LJ’s view, was the
relevant professional body with which the expert witness is associated, if such
exists:
“I see no reason why a judge who has formed the opinion that
an expert had seriously broken his Part 35 duty should not, in an appropriate
case, refer the matter to the expert's professional body if he or she has one.
Whether there is a breach of the expert's professional rules and if so what
sanction is appropriate would be a matter for the body concerned.” [1039]
6.106
Jacob LJ went on to hold that in his view the expert in this case should
be referred to his professional body, however, he accepted that before this
step was to be taken, the expert should have an opportunity of being heard. He
therefore allowed 21 days prior to referral to the professional body, in order
to allow representations to be made on behalf of the expert.
6.107
Similarly, in Hussein v William Hill[1040] Hallett J criticised the expert psychiatrist advanced on
behalf of the plaintiff for failing to disclose his close relationship with the
claimant, and for failing to disclose the fact that he was, at the time of
giving evidence, suspended from practice and being brought before a Mental
Health Review Tribunal. Hallett J refused to place any weight in the expert’s
evidence and held that the judgment should be referred to the General Medical
Council to examine the conduct of the expert in question.[1041]
(d)
Dedicated Disciplinary Body for Experts: Conclusion
6.108
Based on this discussion, and consistent with its provisional
recommendations that mandatory training should not be introduced and that a
mandatory regulatory body for expert witnesses should not be introduced, the
Commission provisionally recommends that the relevant professional bodies
should be encouraged to introduce their own regulatory and disciplinary
processes for professionals who wish to act as expert witnesses.
6.109
The Commission provisionally recommends that the relevant professional
bodies should be encouraged to introduce their own regulatory and disciplinary
processes for professionals who wish to act as expert witnesses.
(3)
Immunity
from Disciplinary Action from Professional Regulators
6.110
There have been a number of cases in this jurisdiction, and more recently
in England, which considered whether or not immunity exists for expert
witnesses from disciplinary, regulatory or fitness to practice proceedings
(commonly known as FTP proceedings), in relation to statements made or evidence
given by him in or for the purpose of legal proceedings.
(a)
Ireland: MP v AP: John Connolly Applicant (Practice:
In Camera)[1042]
6.111
This case involved a complaint made by one of the parties to the
Psychological Society of Ireland in respect of the applicant who was a
potential witness in family law case involving the parties. The applicant
claimed that the complaint could not be considered by the disciplinary body as
section 34 of Judicial Separation and Family Law Reform Act 1989 provides
that family law cases be held in camera.
6.112
Laffoy J held that section 34 was contravened by the making of
complaints to the Psychological Society of Ireland and that the complaint could
not be prosecuted without further infringement of the section as it concerned
the contents of a letter which commented upon the defendant's evidence on
affidavit in support of a motion in family law proceedings.
6.113
Laffoy J went on to recognise the existence of an immunity for witnesses
from civil proceedings in respect of evidence given in court and statements
made in preparation for giving evidence. She continued:
“While no authority has been cited which supports the
proposition that an expert witness is immune from disciplinary proceedings or
investigation by a voluntary professional organisation to which he is
affiliated in respect of evidence he has given while statements he has made
with a view to their contents being adduced in evidence, having regard to the
public policy considerations which underlie the immunity from civil proceedings
— that witnesses should give their evidence fearlessly and that a multiplicity
of actions in which the value or truth of their evidence would be tried over
again should be avoided — in my view, such a witness or potential witness must
be immune from such disciplinary proceedings or investigation. However, I
consider that it is not necessary to make a declaration that the society cannot
conduct any inquiry in relation to evidence given by the applicant or any
statements made by the applicant in preparation for oral testimony or evidence
on affidavit in these proceedings because such inquiry is precluded by s. 34
of the Act of 1989.”[1043]
6.114
In this case, Laffoy J seemed to support the recognition of immunity for
expert witnesses from disciplinary proceedings taken pursuant to evidence given
during the course of litigation. However, the latter part of this statement
implies that her comments were limited to considering this issue in the context
of family law proceedings, and not more generally.
6.115
A number of other Irish cases have considered the extent to which
witnesses, including expert witnesses, are immune from civil suit in the course
of giving evidence. These will be discussed later on. However, there has been
greater consideration given to the extension of witness immunity to
disciplinary proceedings recently in England, which may influence the Irish
direction in future cases.
(b)
England: General Medical Council v Meadow[1044]
6.116
In General Medical Council v Meadow[1045] Professor Meadow, a medical expert witness, had given
expert evidence in an earlier murder case that was later proved to be
inaccurate. As a result of this, the Fitness to Practise Panel (FPP) of the
General Medical Council (GMC), the professional body governing the conduct of
medical professionals in the UK, concluded that Professor Meadow was guilty of
serious professional misconduct and ordered that his name be struck off the GMC
register. Professor Meadow appealed both the finding and the sanction of
erasure.
(i)
High Court
6.117
In the High Court, Collins J acknowledged the established existence of
common law immunity from suit of witnesses, including expert witnesses, in
respect of statements made in the course of giving evidence.[1046]
He went on to find that in some instances, in the interests of justice, this
immunity should be extended to cover FTP disciplinary proceedings, and as a
result, he allowed the appeal against the FTP’s finding of serious professional
misconduct.[1047]
6.118
However, he also referred to Pearce v Ove Arup Partnership Ltd &
Ors[1048] and Hussein v William Hill[1049]
and held that there is nothing preventing a professional body from examining an
expert witness whose conduct has fallen so far below what is expected of him as
to merit disciplinary action, but that it is the job of the judge to decide if
this is the case.
6.119
He went on to outline the circumstances under which such a referral
could be made by a judge;
Such a referral would not be justified unless the witness's
shortcomings were sufficiently serious for the judge to believe that he might
need to be removed from practice or at least to be subjected to conditions
regulating his practice such as a prohibition on acting as an expert witness.
Normally, evidence given honestly and in good faith would not merit a referral.[1050]
6.120
Collins J also allowed the appeal against the finding of the GMC of
serious professional misconduct on the part of Professor Meadow. He pointed out
that the appellant had acted in good faith, and honestly believed in the
veracity of the statistics he cited in evidence. Collins J concluded that an
honestly held albeit mistaken evidence should not lead to a finding of serious
professional misconduct giving rise to disciplinary sanctions.
(ii)
Court of Appeal
6.121
The General Medical Council appealed the findings of Collins J in the
High Court. Clarke MR gave extensive consideration to the question of whether
witness immunity should be extended to cover FTP proceedings. He acknowledged
that the courts have shown a marked reluctance to extend the witness immunity
beyond that absolutely necessary and also expressed a belief that the threat of
FTP proceedings is in the public interest as it acts as a deterrent to the
giving of partisan evidence.[1051]
6.122
Clarke MR also reasoned that even a partial extension, in the form of
the judicial filtering mechanism suggested by Collins J, should not be
introduced as it would cut across or limit the powers of such professional
bodies to set and maintain standards and that it should be Parliament that
decides what charges are to be made. As reasoned by Auld LJ:
“It goes to the very root of the core principle of immunity
that it must be certain in its extent and it must be absolute. And that must be
equally so where the boundary line is between – in the case of medical
practitioners – serious professional misconduct or no, or between serious
professional misconduct and serious professional conduct so bad ("super
serious professional misconduct") that a judge in a particular case
considers it necessary to refer the matter to a disciplinary body. As the
Master of the Rolls has put it, in paragraph 53 of his judgment, that would
make the trial court or this Court the sole arbiter, on a case by case basis,
as to who should be immune and who should not.”[1052]
6.123
As a result, all three appeal court judges unanimously rejected an
extension to the witness immunity to cover FTP proceedings and that the FPP of
the GMC had the requisite jurisdiction to entertain the allegations against
Professor Meadow.
6.124
This appeal court decision is a lengthy, well reasoned judgment that
took into account submissions from expert witnesses and the Attorney General on
issues involved. It provides a summary of the relevant case law and expresses
firm authority in support of the decision not to extend the witness immunity.
Furthermore, those commentators that have criticised the decision have done so
because the courts did not go so far as to rule out immunity for expert
witnesses from civil proceedings for professional negligence.[1053]
6.125
This decision, therefore, provides strong support for the suggested
reform of the creation of a dedicated disciplinary body for expert witnesses,
or the encouragement of professional bodies to create their own disciplinary
panels.
(4)
What Circumstances Should Disciplinary Action Be Taken In?
6.126
The General Medical Council v Meadow[1054] litigation also gave considerable consideration to the
range of circumstances under which a referral to a disciplinary body should be
made and when disciplinary action would be taken.
6.127
In the High Court decision, Collins J held that an expert witness should
only be referred to a professional regulatory body where the judge in the case
in which he was giving evidence was of the opinion that he manifested
shortcomings that were sufficiently serious to require disciplinary action. An
honestly held belief, even though mistaken, would not be sufficient to give
rise to a finding of serious professional misconduct leading to disciplinary
action.
6.128
Giving the judiciary the authority to determine when to refer an expert
witness to his professional body was subsequently rejected by the Court of
Appeal. However, by a majority, the Court of Appeal upheld Collins J’s decision
that Professor Meadow was not guilty of serious professional misconduct and so
should not have been made the subject of professional disciplinary action.
6.129
This would imply that a considerably serious breach or lapse in
standards, a “calculated or wilful failure,”[1055]
is necessary to justify initiating disciplinary action. Although Professor
Meadow’s mistake had significantly onerous consequences, his opinion was
honestly held and he had acted in good faith at all times.
(5)
Types of Professional Disciplinary Sanctions
6.130
Disciplinary measures would be imposed where the regulatory body has
received complaints from members of the public, the legal profession, other
experts, or the court, due to a perceived failure by a particular expert to
comply with the code. The Body should undertake a complete investigation of
such claims and there should be a fully functioning appeals procedure to enable
an expert to address criticisms.
(a)
Admonish or
Censure the Expert
6.131
If a dedicated disciplinary body or regulatory body was created for
expert witnesses, this body would be expected to continually review and monitor
the conduct of all individuals engaged in giving expert testimony, and not just
those that have had complaints made against them by clients, solicitors or
barristers.
6.132
Therefore, even where the breach or misconduct by the expert witness is
not of a serious nature, for example incorrect format of an expert report or
mild judicial criticism of the expert as manifesting slight bias, at times it
may be necessary for the disciplinary body to intervene and impose a formal
warning on the expert. This would act as a censure against more serious
breaches by the expert, and ensure that they are reminded of their duties and
obligations.
(b)
Require Formal
Apology
6.133
In some instances, the conduct of the expert witness, although wrong,
may not have resulted in any serious implications for the parties or the legal
professionals involved. For instance, the expert may have been criticised by
the trial judge as giving partisan evidence, but the judge may also consider
that his evidence is still to be preferred as it appears to best reflect what
was likely to happen. In such instances, although the expert’s party was
successful, the opposite result may have also been achieved based on the
expert’s misconduct.
6.134
Where such a case is brought to the attention to an expert witness
regulatory or professional body, requiring the expert witness to give a formal
apology to his instructing party and counsel may be all that is necessary to
remedy the situation. As mentioned above, this would also have the effect of
acting as a censure for the expert against more serious breaches and also
remind the expert of the extent of their role and function.
(c)
Require Payment
of Compensation/Fine to Aggrieved Party/ Disciplinary Body
6.135
If the professional misconduct has resulted in monetary loss to the
parties or counsel, or where the misconduct is significant but not so serious
as to warrant striking off of the expert, a monetary award may be sufficient
compensation.
6.136
Alternatively, the professional expert body may require the expert
witness to pay a monetary fine to the disciplinary body.
(d)
Striking Off
6.137
In General Medical Council v Meadow[1056] the disciplinary action taken by the GMC was the
striking of his name from the medical register of the GMC. Registration with
the GMC is a mandatory prerequisite to acting as a GP in the United Kingdom so
the sanction of erasure effectively prevented him from practising medicine.
This is an extremely severe sanction; this may have influenced the court’s
ultimate decision to reverse the penalty.
6.138
However, if an expert witness were struck off the register of a
dedicated regulatory body for expert witnesses, this would not have such severe
consequences. Erasure or suspension from an expert witness register for
misconduct in the giving of expert evidence would only prevent the person from
acting as an expert witness for as long as the sanction is in place. It would
still be open to the individual to practise within their particular profession.
6.139
Although if the misconduct was of a very serious nature, likely to
influence their fitness to practise the profession generally, the imposition by
an expert witness body of professional sanctions may lead the individual’s
governing professional body to consider initiating their own investigation of
the matter.
(6)
Immunity Issues: Conclusion
6.140
Having reviewed this area, the Commission is persuaded by the approach
taken by the English Court of Appeal in the Meadow case. In that
respect, the Commission considers that, where a court finds that an expert has
acted in a manner inconsistent with their paramount duty to the court, they may
refer such expert to the disciplinary committee of the appropriate professional
body to deal with that witness. This does not, of course, preclude the
professional body itself from taking action independently of the court. While there
may be some cases in which, in principle, an expert witness may not be a member
of an existing professional body, the Commission considers this is unlikely in
this jurisdiction. Consistent with this approach, the Commission provisionally
recommends that the immunity from suit for expert witnesses should not be
extended to cover disciplinary proceedings from professional bodies.
6.141
The Commission provisionally recommends that the immunity from suit for
expert witnesses should not be extended to cover disciplinary proceedings from
professional bodies.
D
Expert Witness Immunity from Civil or Criminal Suit
6.142
As mentioned above, the main reason why the English courts have shown a
readiness on certain occasions to refer an expert witness to his or her
governing professional body for professional sanctions is that the court itself
was restrained from disciplining the expert due to the well established
existence of an immunity of witnesses from civil or criminal proceedings.
6.143
Several cases in this and other jurisdictions have considered the
immunity and given justifications for its retention. The immunity exists for
the benefit of the public, as it is considered that the proper administration
of justice requires assurance that witnesses are not discouraged from giving
full and complete evidence due to the fear of liability. As summarised by
Murphy J in Looney v Bank of Ireland & Morey;[1057]
the immunity stems from “the necessity of affording to witnesses the
opportunity of giving their evidence freely and fearlessly.”[1058]
6.144
The purpose of the immunity was explained by Pigot CB in Kennedy v
Hilliard[1059] in the
context of a defamation charge;
“[The] purpose is, to give him the courage to resort as a
party to the legal tribunals for justice, or, as a witness, to give his
evidence before these tribunals, undeterred by the fear of a prosecution or an
action. It is impossible that he can be free from that fear, if his immunity
must depend on his not mistaking what is not material for what is, and upon his
rightly distinguishing what is from what is not libel or actionable slander.”[1060]
6.145
This reasoning has particular relevance in the context of expert
evidence in Ireland based on the size of the jurisdiction and the related small
size of the pool of potential experts in any one field. Any reform that may
affect the numbers of experts willing to give expert evidence is to be avoided.
However, there have been increasing calls from commentators on this topic to
abolish the immunity. Furthermore, there have been some tentative indications
from the case law that this may occur in the near future.
(1)
Ireland
(a)
Common Law
Immunity
6.146
The law on general witness immunity in Ireland is largely reflective of
that in other jurisdictions, and much of the Irish case law recognising the
immunity makes reference to cases from England and Wales, and Australia and
endorse the existence of a general witness immunity which, in more recent
cases, has been held to cover expert witnesses.
(i)
Recognition of
Witness Immunity
6.147
The existence of immunity for witnesses has been recognised in this
jurisdiction on numerous occasions. In Re Haughey[1061] O Dalaigh CJ expressly acknowledged the immunity and
explained the reasons for this;
“The immunity of witnesses in the High Court does not exist
for the benefit of witnesses, but for that of the public and the advancement of
the administration of justice and to prevent witnesses from being deterred, by
fear of having actions brought against them, from coming forward and testifying
to the truth. The interest of the individual is subordinated by the law to the
higher interest, namely, that of public justice, for the administration of
which it is necessary that witnesses should be free to give their evidence
without fear of consequences.”
6.148
The immunity was also at issue in Looney v Bank of Ireland &
Morey.[1062] Here, the plaintiff sought to pursue a libel and
defamation claim against the second-named defendant for evidence she had given
against him, as a lay witness, in an earlier mortgage suit. In the High Court
Murphy J cited the comments of Pigot CB in Kennedy v Hilliard;[1063]
“…for what is stated by a party on his own behalf, or a
witness in giving evidence in the ordinary course of a judicial proceeding,
there is absolute immunity from liability to an action for libel or slander.”[1064]
6.149
Murphy J accepted the defendant’s argument that the case should be
struck out due to the existence of an absolute privilege in relation to matters
said in the course of judicial proceedings, which precludes legal action from
being taken against any witness giving evidence in such proceedings.
6.150
He rejected the plaintiff’s contention that such a privilege derived
from the Royal Prerogative and thus did not survive the enactment of the Constitution.
Alternatively, he found that such a privilege “derives from the very nature of
the judicial process and the independent judiciary created by our
Constitution.”[1065]
6.151
Murphy J also acknowledged the plaintiff’s argument that the witness’
comments had damaged his good name, and recognised the Constitutional right to
vindicate one’s good name. However he held that the Constitutional right of
access to the courts and to appropriate legal process, which necessarily
requires calling witnesses to give evidence concerning the matters in issue,
must be reconciled with “the rights of others to be protected against any abuse
of their rights which might be involved or occur by reason of the evidence
given on behalf of the parties.”[1066]
(ii)
Extent of
Witness Immunity
6.152
However, Murphy J also acknowledged that the courts also have a duty to
ensure that legal proceedings are not abused to the detriment of persons not an
action to the case. Therefore, the privilege or immunity will not apply where
it can be shown that the witness was invoking it to abuse the legal process. As
stated by Murphy J;
“If a witness was to take advantage of his position and of
the absolute privilege which he enjoyed, to digress from the proceedings in
hand and make a wholly irrelevant and completely unwarranted attack on the good
name or reputation of another citizen who did not have a chance of defending
himself….In my view such an abuse of the legal process would constitute
contempt of court and be punishable accordingly.”[1067]
6.153
The decision of Murphy J was upheld in the Supreme Court where the
existence of immunity for witnesses was confirmed but where it was also
recognised that this immunity has its limits and it remains open to the court
to suspend it where it appears that the witness acted maliciously and where the
testimony was held to be irrelevant to the issue in court. O’Flaherty J
confirmed the dictum of O Dalaigh CJ in Re Haughey[1068] where he stated:
“It is salutary to hear in mind that even in the High Court,
if a witness were to take advantage of his position to utter something
defamatory having no reference to the cause or matter of enquiry but introduced
maliciously for his own purpose, no privilege or immunity would attach and he
might find himself sued for an action for defamation.”[1069]
(iii)
Continued
Judicial Endorsement of Witness Immunity
6.154
The decision in Looney[1070] involved a defamation action taken against the witness
for statements made whilst giving evidence in court proceedings. Subsequent to
this decision, the question arose whether the immunity was limited to
defamation actions or whether a witness is immune from all civil or criminal
suits arising out of evidence given in court.
6.155
In Fagan v Burgess[1071]
the decision is Looney[1072] was approved to support a finding that a witness in a
civil action is immune from being sued for perjury. O’Higgins J rejected the
plaintiff’s arguments that the immunity should not extend to perjury claims
because perjury is a graver matter than defamation and unlike defamation is
always intentional.
6.156
O’Higgins also rejected the argument that the public policy
considerations for granting privilege do not stand up to scrutiny, and that if
an action for perjury were to be allowed, it would be likely to aid, rather
than hinder, the administration of justice by being a disincentive to people to
commit perjury. O’Higgins held that the proceeding should be struck out finding
that no different principles apply with respect to privilege where perjury is
involved than where defamation is involved.[1073]
6.157
Witness immunity was also applied to strike out an action for negligence
in McMullen v Clancy.[1074]
Here, the plaintiff’s property purchase had resulted in a dispute with the
vendors concerning access routes to the property which had been settled on
terms unfavourable to the plaintiff. He then took legal action against his
solicitors arising from this but his claim failed largely because of the
evidence given by senior counsel instructed by those solicitors. In this
further case, the plaintiff sought damages from this senior counsel alleging
negligence and breach of duty arising from the fact that he had given evidence
against him.
6.158
The defendant argued that this case should be dismissed as the existence
of common law immunity from suit for witnesses in regard to the giving of
evidence in court is well established, and cited several English cases,
including, Marrinan v Vibart,[1075] Hargreaves v Bretherton[1076]
and Watson v McEwan[1077] in
support of this. These arguments were unreservedly endorsed by McGuiness J:
“I accept on the authority of the cases opened to me that
there is an overwhelming public policy argument for maintaining the common law
rule that a witness is immune from suit in regard to the evidence which he
gives in Court.”[1078]
(iv)
Witness Immunity
& Application to Expert Witnesses
6.159
The above cases firmly established the existence for immunity for
witnesses from civil or criminal proceedings arising out of evidence given in
court proceedings. More recently, the question arose as to whether this
immunity equally covers expert witnesses or whether different considerations
apply.
6.160
In O'Keeffe v Kilcullen & Ors[1079]
the plaintiff sought damages for negligence against the medical expert witness
appointed by the court to carry out a psychiatric assessment for the purposes
of nullity proceedings. The plaintiff claimed the defendant expert had failed
in the duty owed to the plaintiff to exercise reasonable care and skill in the
making of the psychiatric report and its contents.
6.161
In response, the defendant expert argued that the proceedings should be
dismissed because inter alia an expert witness enjoys immunity from suit
in negligence relating to the evidence given by him in court, and also in
relation to the work principally and proximately relating thereto. In support
of this argument, the defendant referred to English case law confirming the
existence of the immunity, for example, Marrinan v Vibart,[1080]
Evans v London Hospital Medical Hospital College[1081] and Palmer v Durnford Ford.[1082]
The defendant further raised two important public policy considerations which
support the retention immunity for expert witnesses. These are;
“(A) Witnesses (including expert witnesses) should be
encouraged to present to Court all the evidence that it is desirable that the
Court should hear without the worry that afterwards their time, energy and
possibly their own money might be devoted to defending post evidential suits (a
proportion of which might well be bona fide and otherwise justifiable);
and
(B) The Court lists should not be cluttered up with post
evidential litigation which would inevitably involve retrying some issues or
some aspects of issues which have already been dealt with in Court.”[1083]
6.162
O’Sullivan J rejected the plaintiff’s argument that Looney[1084]
did not have binding effect on this case because it involved lay and not expert
witnesses and was thus distinguishable. He also rejected the plaintiff’s
argument that English case law such as Hall v Simons[1085]
demonstrates a shift in jurisprudence in this area which necessitates
considering the application of immunity from suit afresh to ensure that it is
clearly justifiable.
6.163
On the contrary, O’Sullivan J found that he considered himself expressly
bound by Looney[1086] and Fagan[1087]
and decided the case on the basis of the precedent set therein;
“From the foregoing it is clear that the witness in Looney
gave evidence at the behest of the Court and the evidence was relevant to an
issue in the action. In those circumstances the decision of the Supreme Court
is that absolute immunity privilege attached to such evidence. There is no hint
that an exception should or could be made in the case of an expert and whilst
there are some passages in the more recent jurisprudence of the United Kingdom
which might give grounds for distinguishing the evidence of expert witnesses
from the evidence of witnesses generally and in particular in the Judgment of
Chadwick L.J. in Stanton v Callaghan [1998] 4 All ER 961 at page 974, this
passage, which is clearly obiter, must be seen in the context of the evolved
jurisprudence in that country on this general topic and in my view that
development in the United Kingdom in no way disturbs the binding nature on me
of the decision in Looney of the Supreme Court.”
6.164
However, he further held that, as stated in Looney,[1088] a limitation can be placed on the immunity where the
evidence given is seen to be malicious and irrelevant to the issues before the
Court.
6.165
The plaintiff appealed to the Supreme Court where O’Sullivan J’s dictum
was approved and the court held that no claims could be brought against the
defendant expert witness. Here, Murphy J described the well-established
immunity of witnesses as “the by-product of conflicting constitutional rights
and the impact of public policy on the administration of justice.”[1089]
6.166
Murphy J cited with approval earlier Irish case law confirming the
existence of witness immunity. He then went on to acknowledge the fact that the
English decision of Hall v Simons[1090]has
had the effect of significantly restricting the range of persons to whom the
immunity will apply in the United Kingdom but found that even if this decision
were followed in this jurisdiction it would not affect witness immunity as that
case was concerned with the liability of lawyers. It did not, he argued,
“purport to strip witnesses of the immunity which had been conferred on them in
the public interest.”
6.167
The established parameters of the immunity were also confirmed where
Murphy J held that even if negligence on behalf of the expert witness in this
case were established, the court would still be right in concluding that the
witness was entitled to avail of the immunity. The immunity will only be
departed from, he reiterated, where a witness “so departed from the duties
which he or she was purporting to perform as to abuse his position that he
would forfeit the immunity which he was abusing.”
6.168
Expert witness immunity was considered most recently in WJ
Prendergast & Ors v Redver Skelton.[1091] Here, an expert Fire Consultant was hired by the
respondents in a malicious injury claim pursuant to a fire in the plaintiff’s
factory, and in these proceedings the plaintiff alleged that the applicant had
given false and misleading evidence in the proceedings and that he interfered
with the analysis of samples for a wrongful purpose. The applicant argued that
the proceedings should be struck out as inter alia as a witness he was
immune from suit as the proceedings were based on evidence he had given in
court.
6.169
In the High Court, McGovern J considered when the immunity from suit
would be removed and again endorsed the decisions in Re Haughey[1092]
and Looney.[1093] Based on
these, the court dismissed the suit against the plaintiff expert finding that
he was entitled to avail of the immunity from suit of witnesses.
(b)
Statutory
Immunity
6.170
Although witness immunity has been well established at common law, its
precise application can be uncertain. This was acknowledged by Murphy J in O'Keeffe
v Kilcullen & Ors[1094]
where he stated that witness immunity “is a matter with a long and, at times,
confused, history.
6.171
Due to this uncertainty, in certain cases, the common law immunity has
been bolstered by statutory provisions. For example, Section 102 of the Children
Act 2001, which deals with probation officers reports, provides for
immunity from liability for any probation officer who, acting in good faith,
prepares a report requested under this section of the Act.
6.172
Similarly, the Arbitration (International Commercial) Act 1998
provides for the appointment of expert witnesses in an arbitral tribunal to
report to it on specific issues. It expressly provides that such experts are
not liable for anything done or said in the discharge of their statutory duties
unless they acted in bad faith.
(c)
Conclusion
6.173
The above discussion demonstrates that expert witness immunity from
civil or criminal suits in respect of evidence given in court proceedings has
been unequivocally endorsed in this jurisdiction on numerous occasions.
Furthermore, there is no evidence to suggest the development of a body of
support for removing this immunity.
6.174
It therefore appears unlikely, particularly bearing in mind
Constitutional considerations, that the Irish courts are likely to alter this
view and consider imposing liability on witnesses. However, it can be argued
that, as mentioned in some of the Irish case law discussed above, recent
English case law has taken some tentative steps in this direction.
(2)
England and Wales
6.175
The existence of common law witness immunity has been firmly established
and justified in several English cases dating back to the 19th
century. Although the case law continues to endorse the necessity for the
immunity, the precise scope of application has come under scrutiny in recent years,
and the courts can be seen to be rowing back from blanket immunity to limiting
it to that absolutely necessary.
(i)
Recognition of
Witness Immunity
6.176
As far back as 1585 the need to protect witnesses from liability
resulting from their comments or actions whilst giving evidence has been
recognised. In Cutler v Dixon[1095]
the King’s Bench stated;
“It was adjudged, that if one exhibits articles to justices of
peace against a certain person, containing divers great abuses and
misdemeanours, not only concerning the petitioners themselves, but many others,
and all this to the intent that he should be bound to his good behaviour; in
this case the party accused shall not have for any matter contained in such
articles any action upon the case, for they have pursued the ordinary course of
justice in such case; and if actions should be permitted in such cases, those
who have just cause for complaint would not dare to complain for fear of
infinite vexation.”
6.177
The immunity was confirmed in clearer terms by Kelly CB in the 1873
decision Dawkins v Lord Rokeby;[1096]
“No action lies against parties or witnesses for anything
said or done, although falsely and maliciously and without any reasonable or
probable cause, in the ordinary course of any proceedings in a court of
justice.”[1097]
6.178
Two public policy rationales have been repeatedly identified as
underling the immunity of witnesses.[1098]
The first of these was referred to in Munster v Lamb[1099]
where Frye LJ confirmed that witnesses are immune from action for statements
made in the course of giving evidence, even where it can be shown that the
witness acted with malice;
“The rule of law exists not because the conduct of those
persons ought not of itself to be actionable but because if their conduct were
actionable, action would be brought against judges and witnesses in cases in
which they had not spoken with malice, in cases in which they had not spoken
with falsehood. It is not a desire to prevent actions from being brought in
cases where they ought to be maintained that has led to the adoption of the
present rule of law: but it is the fear that if the rule were otherwise
numerous actions would be brought against persons who were merely discharging
their duty. It must always be borne in mind that it is not intended to protect
malicious and untruthful persons, but that it is intended to protect persons
acting bona fide who under a different rule would be liable, not perhaps to
verdicts and judgments against them but to the vexation of defending actions.”
6.179
Therefore, the first objective of the immunity is to ensure that
witnesses give their evidence freely without fear of liability.[1100]
This was reiterated by Salmon J in Marrinan v Vibart[1101] where he stated that witness immunity is necessary
because;
“….the administration of justice would be greatly impended if
a witness were to be in fear that any disgruntled or possibly impecunious
persons against whom they gave evidence might subsequently involve them in
costly litigation.”
6.180
The second objective of the immunity is to avoid successive actions and
ensure finality in court proceedings. This was referred to by Lord Wilberforce
in Roy v Prior[1102] where he stated the immunity is designed “to avoid
multiplicity of actions in which the value or truth of their evidence would be
tried over again.”[1103]
6.181
These justifications can be seen to have shaped the decision in Re N.[1104]
Here, the plaintiff sought damages for psychological trauma which she alleged
she suffered due to the defendant expert’s failure to show up in court to give
evidence in a rape case, in which she was the complainant, and where as a
result of the non arrival of the expert, it was held the defendant had no case
to answer.
6.182
The plaintiff acknowledged the existence on an immunity for experts
which prevented the allegation that a duty to give evidence was owed, but went
on to argue that on fundamental tort principles on the duty of care, that it
was reasonably foreseeable that the plaintiff would have suffered exacerbation
of psychiatric trauma where the accused in the rape case was not convicted,
therefore the defendant owed a duty of care to take all reasonable steps to
provide evidence and attend the trial as a prosecution witness.
6.183
The existence of such duty was rejected by the court. It was considered
that if any duty were to exist it would be a duty to take reasonable care to
prevent the plaintiff suffering psychiatric injury, but that this would be
bound to fail also had it been claimed due to the lack of proximity between the
parties. The plaintiff’s claim was also bound to fail as a result of the well
established existence of the witness’ immunity. Chadwick LJ explained that “an
attempt to assert and establish that the law recognises that, absent contract,
any duty of care is assumed by a potential witness, in that role, towards
anyone who may be affected by the evidence which he or she gives in court is
doomed to failure” in the light of those decisions expressly recognising
witness immunity. He went on to justify this:
“The reason, as the courts have stressed over many years, is
that the public interest in the proper administration of justice requires that
witnesses and potential witnesses should not be discouraged from coming forward
and giving such evidence as they properly can by a concern that their
participation may expose them to proceedings - however vexatious or
ill-conceived - by those who perceive themselves to be adversely affected by
that evidence.”[1105]
(ii)
Extent of
Immunity from Suit
6.184
More recent case law has given greater consideration to the parameters
of the immunity and it has been observed that the courts have shown a marked
reluctance to extend the immunity.[1106]
6.185
In Darker & Ors v Chief Constable of the Mid-Westland Police[1107]
the plaintiffs sought damages for conspiracy to injure and the tort of
misfeasance in public office against police officers in respect of their breach
of disclosure process prior to the plaintiff’s trial. As the actions concerned
occurred prior to the trial process, no challenge was made to what is referred
to as the ‘core immunity,’ namely the immunity covering things said or done
while in the witness box.
6.186
However, it was considered that the plaintiff’s claim necessitated a
determination of the exact extent of the immunity outside of its application in
court. As a result, all the Lords of Appeal all gave significant consideration
to the boundaries of the immunity, which provides a good summary of the current
English position regarding witness immunity.
6.187
The above mentioned public policy reasons for the immunity were
acknowledged and approved, but it was explained that these must be balanced
against the principle that a wrong ought not to be without a remedy. “The
immunity,” Hope LJ reasoned, “is a derogation from a person’s right of access
to the court which requires to be justified.” However, he also recognised that
if the public policy objective underlining the immunity, namely the protection
of witnesses for the proper administration of justice, the immunity cannot be
limited to things done or said in court and the Lord Justices went on to approve
a number of recognised extensions of the immunity.
6.188
In Watson v McEwan[1108]
it was held that the immunity must extend to the preliminary examination of
witnesses to determine what information they can provide. Similarly, in Evans
v London Medical College (University of London)[1109]
it was held that it must also cover evidence from potential witnesses when
court proceedings are in contemplation but not yet commenced.
6.189
In X (Minors) v Bedfordshire County Council[1110]
an expert report prepared in order to be relied on in child abuse proceedings,
even where the expert did not give evidence in the proceedings, was held to be
covered by the immunity.
6.190
In Taylor v Director of the Serious Fraud Office,[1111]
out of court statements that would be considered part of the process of
investigating crime with a view to prosecution were seen as covered.
6.191
However, Lord Hoffman’s decision was approved in Taylor v Director of
the Serious Fraud Office,[1112] where it was stressed that immunity cannot be claimed over a
charge of malicious prosecution.[1113]
6.192
The House of Lords recognised that the exact boundaries of the immunity
can be difficult to determine where the statements are made prior to the trial.
They held that the line is to be drawn at the time where court proceedings come
under consideration and thus where the statements related to the giving of
evidence; anything before this will not be covered. As described by Scott VC in
Bennett v Commissioner of Police for the Metropolis,[1114]
it applies only to out of court statements “if these were clearly and directly
made in relation to the proceedings in court.”
6.193
The Lords all expressed reluctance at the imposition of blanket immunity
and all reiterated the need to ensure that the immunity is limited to that
which is necessary for the administration of justice. The judgment of the
Australian High Court in Mann v O’Neill[1115] was approved:
“The general rule is that the extension of absolute privilege
is ‘viewed with the most jealous suspicion, and resisted, unless its necessity
is demonstrated’.”[1116]
6.194
The House of Lords here held that the work of police officers that
cannot fairly be said to form part of their participation in the judicial
process as witnesses should not be covered by the immunity. As the actions of
the officers here occurred in the investigatory stage and not at the stage
where they were considering the giving of evidence at trial, the reasons
justifying the immunity did not apply. The appeal was thus unanimously allowed.
(iii)
Immunity from
Suit and its Application to Expert Witnesses
6.195
In Palmer v Durnford Ford[1117] the expert engineer engaged by the plaintiff’s produced
a written report advising them that they had a justified claim. However, at
trial, and having seen the reports of the expert for the other side, it became
apparent that no claim was justifiable and the case was abandoned. The expert
claimed immunity from suit as he was acting at all times in the course of preparing
evidence for a possible claim.
6.196
The Court acknowledged earlier case law recognising immunity for
witnesses in preparing statements with a view to giving evidence. However, he
emphasised that this immunity should only be conferred where absolutely
necessary, and where it would inhibit the expert witness from giving truthful
and fair evidence. However, he went on to state that there is no good reason
why the imposition of liability for failure to give proper advice to clients
should inhibit the ability of expert witnesses to give such truthful and fair
evidence. The plaintiff was therefore entitled to sue for negligence. He
stated:
“I can see no good reason where an expert should not be
liable for the advice which he gives to his clients as to the merits of the
claim, particularly if proceedings have not been started and a fortiori as
to whether he is qualified to advise at all.”[1118]
6.197
The Court went on to make some general comments about the exact
circumstances where an expert could or could not rely on the immunity. He cited
the decision in Saif Ali v Sidney Mitchell & Co[1119] which considered the correct test to apply to determine
when advocates are entitled to avail of the immunity. The Court here opined
that a similar approach to that taken in Saif[1120] could apply in the context of experts, and thus the
immunity would only apply to that which could fairly be said to be preliminary
to his giving evidence in court, judged perhaps by the principal purpose for
which the work was done.
6.198
The test in Palmer was subsequently applied in Landall v
Faulkner & Ors[1121] and a claim for negligence struck out against an expert
consultant as it was held that his advice constituted “pre-trial work…so
intimately connected with the conduct of the case in court that it could fairly
be said to be a preliminary decision affecting the way that the case was to be
conducted when it came to a hearing.”
6.199
In Stanton v Callaghan[1122] the plaintiffs alleged negligence and breach of retainer
against an expert arising out of the expert’s conduct in preparing and
creating, in conjunction with the expert for the other party, a joint statement
for the plaintiff for the purposes of court proceeding, which they alleged
resulted in a significant and erroneous reduction in the award granted to them
at trial. The question for determination here was whether or not the expert’s
actions fell within the principles governing witness immunity from suit, where
the expert did not give evidence as the trial did not take place.
6.200
Chadwick LJ reasoned that the duty of expert witnesses, in the interests
of justice, to make all possible efforts to reduce contentious issues at trial
by engaging in full and frank pre-trial discussions necessitates an assurance
that the experts are free to make concessions without fear that departing from
any previous advice given to the retaining party could lead to a negligence
action. He approved the test set out in Palmer[1123]
as applied in Landall.[1124]
6.201
For these reasons, and by applying the Palmer test, he found that
the expert here was entitled to avail of the immunity, even where the trial
does not take place. Otton LJ and Nourse LJ concurred with this decision and
both agreed that the ‘principle purpose test’ was the appropriate one to apply
when considering the immunity of pre-trial work.
6.202
However, Otton LJ did express one note of caution. While he agreed with
the general points made by Chadwick J, he emphasised that such considerations
may not be present in every case. He explained that a greater degree of
protection may need to be given to some classes of experts than to others, for
example family law cases or those concerning the welfare of the child. He was
therefore reluctant to draw rigid categories determining the cases where
immunity would be granted preferring to leave determination on a case by case
basis. The test, he felt, should be is it in the best interests of the administration
of justice to grant immunity.
6.203
In the Scottish decision Karling v Purdue[1125]
the pursuer sought damages for loss and damages resulting from breach of
contract and negligence of the defender, a medical expert retained by the
pursuer to carry out a post-mortem and give conclusions on likely cause of
death in the context of a murder charge of which the pursuer was subsequently
convicted.
6.204
In his report, the defender had concluded that the deceased was most
likely to have died from suffocation, as did the Crown’s report. However, on
appeal additional scientific evidence was adduced and it was found that the
conclusion of suffocation was without scientific basis, and the pursuer’s
conviction was subsequently quashed.
6.205
The defender claimed that as he had prepared a post mortem report and
opinion in his capacity as an expert witness, and as these were prepared with a
view to forming part of the evidence to be given at the trial, absolute
immunity attaches to the defender both in terms of what is contained in that
report and opinion, and alleged to have been negligently omitted.
6.206
The pursuer argued that a functional test, requiring the statement to
have been prepared for the purposes of giving evidence, is discernible from Darker.[1126]
If the test is applied to the case at hand, it was argued, the defender’s
function was not to prepare a document which set out the evidence which he
would give in Court because he was preparing his report at a time when the
precise basis of the Crown’s case was unclear and he did not know whether he
was likely to give evidence on behalf of the accused. The immunity should not
therefore have applied.
6.207
The Court gave an extensive summary of the case law to date dealing with
the extent of the immunity for witnesses, including expert witnesses. Form the
conclusions that can be drawn from these cases, he found that the defender came
clearly within the scope of witness immunity. He rejected the pursuer’s
argument that at the time the expert had prepared the report it was not clear
if he would give evidence and held that in fact it was difficult to conclude
otherwise than that the principal purpose the defender was engaged was to give
evidence on his behalf in criminal proceedings.
(iv)
Curtailment of
the Immunity in the Context of Advocates
6.208
In Rondel v Worsley[1127] the necessity for immunity from suit in the specific
context of the conduct of barristers in court was unequivocally recognised.
Three public policy reasons were advanced in support of this blanket immunity.
First, the administration of justice required that a barrister should be able
to carry out his duty to the court fearlessly and independently. Second,
allowing such actions would necessitate retrying the original actions and thus
prolong litigation. Third, a barrister was obliged to accept any client,
however difficult, who sought his services.
6.209
The blanket immunity propounded in Rondel[1128]
was restricted somewhat by Saif Ali v Sidney Mitchell & Co.[1129] Here the question to be considered was whether or not the
immunity extended to cover the negligence of a barrister in failing to join a
party in court proceedings. Lord Wilberforce acknowledged the public policy
arguments in Rondel but also pointed out that that “account must be
taken of the counter policy that a wrong ought not to be without a remedy.”[1130]
The House of Lords concluded that a barrister’s immunity from suit should
extend only to such pre-trial work as was intimately connected with the conduct
of the case in Court as distinct from other work such as giving the client
legal advice.
6.210
Since these decisions, the position of the immunity of barristers and
solicitors has been dramatically altered by the House of Lords decision in Hall
v Simons[1131] where it was considered that societal changes
necessitated a rethinking of the immunity that should be granted to advocates.
As Lord Hoffman explained;
“I have now considered all the arguments relied upon in Rondel
v Worsley. In the conditions of today, they no longer carry the degree of
conviction which would in my opinion be necessary to sustain the immunity. The
empirical evidence to support the divided loyalty and cab rank arguments is
lacking; the witness analogy is based upon mistaken reasoning and the
collateral attack argument deals with a real problem in the wrong way. I do not
say that Rondel v Worsley was wrongly decided at the time. The world was
different then. But, as Lord Reid said then, public policy is not immutable and
your Lordship must consider the arguments afresh.”[1132]
6.211
The House of Lords went on to unanimously hold that advocates no longer
enjoyed immunity from suit in respect of their conduct of civil proceedings,
and, with some dissenting opinions, to hold that advocates should no longer
enjoy immunity from criminal proceedings.
6.212
However, in its recent decision in Moy v Pettman Smith (a firm)[1133]
the House of Lords
has indicated that it will be difficult indeed for plaintiffs to make out a
negligence claim against barristers.
Lord Hope referred to his judgment in Hall v Simons[1134]and
reiterated that;
“….the measure of the advocate's duty to his client is that
which applies in every case where a departure from ordinary professional
practice is alleged, and that it could not be stressed too strongly that a mere
error of judgment on his part will not expose him to liability for negligence.”
6.213
The shift in jurisprudence that has occurred in the context of immunity
of advocates has been raised in many cases in support of a similar change in
the context of immunity ofr expert witnesses. The advantages and disadvantages
of such a reform will now be discussed.
(3)
Expert Witness Immunity from Suit: Abolition or Retention?
6.214
Two alternative arguments can be made from the above analysis. On the
one hand that the argument in favour of the abolition, or at least curtailment,
of the immunity from suit as it applies to expert witnesses, has its strengths.
On the other, there are strong justifications operating in favour of its
retention. The appropriate course of action continues to be the focus of
debate, and it can be seen that there has been extensive judicial commentary
arguing both approaches.
(a)
Abolition or
Curtailment of the Immunity
6.215
In the wake of the abolition of immunity from suit for advocates, and in
the light of high profile cases of deception and negligence on the part of
expert witnesses leading to gross miscarriages of justice, there has been
increasing judicial and academic calls for similar reforms to take place in the
context of expert witnesses.[1135]
It is argued that although the public policy arguments underlying the immunity
still remain important, more emphasis is nowadays placed on a competing public
policy argument, namely that every wrong should have a remedy.
6.216
At the outset, it must be acknowledged that even in the above mentioned
decisions where immunity of expert witnesses was endorsed, the judgments have all
cautioned against extending the immunity and all emphasised the need to ensure
that it is limited to that which is necessary for the effective administration
of justice and the need to ensure that there is appropriate justifications for
its application.[1136]
6.217
One of the main public policy arguments supporting the immunity is to
ensure that witnesses are not deterred from coming forward to give evidence out
of a fear of litigation. However, it has been questioned if expert witnesses as
more likely to be deterred from giving evidence as lay witnesses, considering
they are professionals who are well reimbursed for their services in giving
evidence.
6.218
Other distinctions can also be made between experts and lay witnesses
which support the argument that they should be governed by different principles
and liabilities, such as the fact that experts have the ability to pick and
choose their cases and lay witnesses normally do not, and the fact that experts
are likely to be in a contractual arrangement with their instructing party.
6.219
Furthermore, experts are only likely to be dissuaded from acting as
expert witnesses if there were a flood of claims made against such expert
witnesses. As the definition of an expert requires them to be highly skilled
and knowledgeable in their area of expertise, it is unlikely – one would hope -
that there would be a large volume of cases where this skill and knowledge
would be found to be wanting. It could be further considered that the only
‘experts’ likely to be dissuaded from acting are those who are charlatans or
whose expertise is questionable and thus imposing liability may have the
positive effect of improving the standard and calibre of expert evidence given
across the board.
6.220
However, given the wide range of subject areas in which expert evidence
can be given, it may be appropriate to impose different liability on expert
witnesses in different areas. For example, it may not be considered appropriate
to impose liability on court appointed experts appointed in family law cases or
cases involving the welfare of the child in order to ensure that such experts
are not deterred from giving full and frank evidence.
6.221
This was recognised in Stanton v Callaghan[1137] where Chadwick J made the following comments;
“There is, if I may say so, no difficulty in recognising the
need for immunity in relation to the investigation and preparation of evidence
in criminal proceedings - or in child abuse cases - in order to ensure that
potential witnesses are not deterred from coming forward. For my part, however,
I find it much more difficult to recognise an immunity founded on the need to
ensure that witnesses are not deterred from giving evidence by the possibility
of vexatious suits in a case where the witness is a professional man who has
agreed, for reward, to give evidence in support of his opinion on matters
within his own expertise - a fortiori, where the immunity is relied upon
to protect the witness from suit by his own client, towards whom, prima facie ,
he owes contractual duties to be careful in relation to the advice which he
gives.” [1138]
6.222
Chadwick J also cited with approval the comments of Tuckey QC in Palmer
v Durnford Ford [1139] where he
argued that;
“. . . I do not think that liability for failure to give
careful advice to his client should inhibit an expert from giving truthful and
fair evidence in court.”[1140]
6.223
Chadwick J went on to point out that in the context of negligence
claims, expert witnesses, as professionals, will be covered by an additional
safeguard than lay witnesses in that they will not be considered liable for
negligence unless it can be shown that their actions were those actions that no
reasonable professional acting in the field would have taken. He expressed the
view that the imposition of liability is unlikely to have a negative impact on
the numbers of experts willing to offer their services as expert witnesses;
“I find it difficult to believe that the pool of those who
hold themselves out as ready to act as expert witnesses in civil cases, on
terms as to remuneration which they must find acceptable, would dry up if
expert witnesses could be held liable to those by whom they are instructed for
failing to take proper care in reaching the opinions which they advance.
Indeed, I would find it a matter of some surprise if expert witnesses offer
their services at present on the basis that they cannot be held liable if their
advice is negligent.”
6.224
Similar comments were made by Reid J in Karling v Purdue.[1141] Here, although the defender was considered on the facts
to be covered by the immunity, Reid J went on to argue that there is a strong
case to be made for the abolition of the immunity, in civil cases at least, for
all actions with the exception of defamation. He reasoned:
“It seems to me that it will generally be easier to reach a
conclusion that a forensic expert is immune from suit where he is engaged in
the course of ongoing criminal proceedings; there is a relatively short space
of time between engagement and trial, the fact finding role will usually mean
that the expert and his client will have in view that the expert will give
evidence if his findings are favourable. In civil proceedings, as the English
authorities illustrate, the position will often not be clear cut. Experts may
be engaged before actions are raised; their role may initially be restricted,
and subsequently broadened e.g. as to topic to report on, and as to function.
Some experts are particularly good at providing detailed background information
which can be used in cross examination, but are not themselves skilled at
giving evidence and explaining their position simply and persuasively to the
court. In civil proceedings many permutations are possible where fine
distinctions may have to be made. These considerations support the argument
that, in relation to civil proceedings, the expert witness should no longer
enjoy immunity from suit, except in relation to defamation.”
6.225
In the European Court of Human Rights decision Osman v United Kingdom[1142]
the court expressed serious dissatisfaction with the imposition of blanket
immunity.
6.226
In the wake of the incorporation into Irish law of the European
Convention of Human Rights,[1143]
the possibility remains that the continued operation of immunity in favour of
expert witnesses could be considered to breach the Right to a Fair Trial as
guaranteed under Article 6 of the Convention.
(b)
Retention of the
Immunity
6.227
The above mentioned cases where the immunity has been recognised all go
into considerable detail about the public policy reasons that have continuously
led to a finding that the immunity is necessary.
6.228
Many cases have rejected the contention that the abolition of the
advocates’ immunity provides support for the abolition of witness immunity
because an analogy can be made between the two groups. In Hall v Simons
Lord Hoffman explained this ‘witness analogy’.
“No one can be sued in defamation for anything said in court.
The rule confers an absolute immunity which protects witnesses, lawyers and the
judge. The administration of justice requires that participants in court
proceedings should be able to speak freely without being inhibited by the fear
of being sued, even unsuccessfully, for what they say. The immunity has also
been extended to statements made out of court in the course of preparing
evidence to be given in court. So it is said that a similar immunity against
proceedings for negligence is necessary to enable advocates to conduct the
litigation properly.”
6.229
However he went on to reject this analogy outright;
“My Lords, with all respect to Lord Diplock, it seems to me
that to generalise the witness immunity in this way is illegitimate and
dangerous….. A witness owes no duty of care to anyone in respect of the
evidence he gives to the court. His only duty is to tell the truth. There seems
to me no analogy with the position of a lawyer who owes a duty of care to his
client.”
6.230
Murphy J argues in O'Keeffe v Kilcullen & Ors,[1144]
that rather than reaffirming the abolition argument, this decision can be
interpreted as rejecting the argument as Lord Hoffman clearly explains why the
two groups should be considered under separate headings.
(c)
Conclusions
6.231
Having considered the extensive case law in this area, the Commission is
inclined to the view that the present position should be retained and that the
traditional immunity from civil or criminal suit for expert witnesses should be
retained. In view of the differing views that are evident on this, the
Commission would welcome views on this matter.
6.232
The Commission invites submissions on whether the traditional immunity
from civil or criminal suit for expert witnesses should be retained.
E
Alternative Remedies to Civil Suit
6.233
In the absence of any tortious liability being ascribed to experts for
their conduct whilst performing the role of expert witness, alternative ways to
sanction experts for wrongful conduct must be considered.
6.234
However, it has been recognised that such alternatives are limited and
that expert witnesses appear to have a highly protected position within the
legal system. Immunity from suit for expert witnesses has been upheld,[1145]
and
it has been considered impermissible to allow complaints to be made to the
professional body of the expert in question.[1146]
Furthermore, it has been acknowledged above that no approved expert witness
body exists in Ireland to which disgruntled solicitors, barristers and clients
can have recourse.
6.235
However, there are a number of existing common law and statutory
remedies which may provide a disappointed litigant with a limited method of
redress against an expert who he believes has behaved wrongfully.
(1)
Criminal Sanctions
(a)
Perjury
6.236
The offence of perjury is a common law offence that provides that in
where a person makes a statement in court and under oath or affirmation that is
untrue and which they know to be untrue they can be convicted of the criminal
offence of perjury and given a fine or a penal sanction.
6.237
The crime is committed by any person lawfully sworn as a witness or as
an interpreter in a judicial proceeding who wilfully makes a statement,
material in that proceedings, which he knows to be false or does not believe to
be true.[1147] It is an
indictable offence but, in certain circumstances, it may be tried summarily
under the Criminal Justice Act 1951, as amended by the Criminal
Procedure Act 1967.
6.238
In the context of expert witnesses this means that in, where an expert
gives an opinion in court which he does not truly believe, or where he makes
false claims which he supports by reference to his expertise, and is
subsequently revealed to have lied to the court, he can be convicted of the
offence of perjury. Furthermore, it has been held that where a person claims to
be an expert witness and gives evidence supported by this alleged expertise,
and their expertise later emerges to be fabricated, they will have lied under
oath thus perjuring themselves and this will give rise to a charge of perjury.[1148]
6.239
However, it is undeniable that, the very nature of the evidence that is
given by an expert – it being an ‘opinion’ - makes proving the dishonesty of
the opinion almost impossible. False claims based on alleged expertise may be
easier to identify, however, where very difficult or technical issues are
involved, the lay judge and jury will inevitably struggle with detecting
falsities and it may depend on the testimony of an expert for the other party
to challenge the veracity of the evidence given.
6.240
Furthermore, it has already been acknowledged that in Fagan v Burgess[1149]it
was held that a witness in a civil action cannot be sued for perjury as the
witness immunity from suit extends to cover civil claims based on
perjury.
6.241
As a result of these limitations, the prosecution of an expert witness
for the criminal offence of perjury is not likely to occur often. Indeed it has
been recognised that in reality, prosecutions of expert witnesses for perjury
are virtually unknown.[1150]
6.242
In the context of civil proceedings, section 25 of the Civil
Liability and Courts Act 2004[1151]
provides for a new offence of dishonestly giving false evidence in personal
injuries claims which is wider than the offence of perjury. Section 25(2)
specifically makes it an offence to give false evidence to a solicitor or an
expert. This implies that subsection (1) which makes it an offence for ‘a
person’ to give false evidence should have wide application and thus it can be
implied that this would apply to experts who are considered to have dishonestly
given false evidence.
(b)
Contempt of
Court
6.243
Contempt of court is also a common law offence, that can be both
criminal and civil, and which can be tried summarily or on indictment.[1152]
6.244
As can be seen in Re N,[1153]
where an expert witness fails to attend court to answer questions and give
evidence they can also be considered to be in contempt of court in facie
curiae[1154]
6.245
It has been held that impersonating an advocate can lead to a charge of
contempt in facie curiae,[1155] therefore by analogy; this could be used to argue that
falsely representing oneself as an expert in a particular area could lead to
similar charges.
6.246
In England, the Civil Procedure Rules Part 35.10 provides that the
expert report must comply with the provisions of the Practice Direction (PD35)
to Part 35. This provides that all expert reports must be verified by a
statement of truth. Part 2.5 of the Practice Direction further makes it clear
that proceedings for contempt of court can be brought where a person makes a
false statement in a document verified by a statement of truth without an
honest belief in its truth.[1156]
(c)
Perverting the
Course of Justice
6.247
This is a common law offence which, in the case of expert witnesses,
would probably require that the expert had agreed with the instructing party or
counsel for the party, to make false or misleading statements, or suppress,
fabricate or destroy evidence.[1157]
6.248
In February of this year, a man who falsely misrepresented himself as a
forensic psychologist in over 700 cases was convicted of 20 charges including
perverting the course of justice and perjury.[1158]
(2)
Civil Sanctions
(a)
Wasted Costs
Orders
6.249
It has been held that it is permissible for a party to bring an action
against an expert whose breach of duty and misconduct has resulted in wasted
time and cost.[1159] In the
English case Phillips v Symes & Zamar [1160] the second defendant was an expert witness whose
evidence was rejected by the court who found in favour of the plaintiff. The
first defendant was declared bankrupt which meant that the plaintiffs had
little chance of recovering costs against him. The court held that the
plaintiffs were entitled to have the expert witness joined in the costs
proceedings.[1161]
6.250
In the High Court, it was held that a third party costs order could be
made against an expert because, as a result of the way in which he gave his
evidence, which was in blatant disregard of his duties owed to the court,
significant costs were incurred. Smith J referred to the recognised immunity
from suit for witnesses but rejected that it should be applied to cover wasted
costs orders;
“It seems to me that I should approach the
matter along the principles (for example) set out in the Stanton case. Do
expert witnesses need immunity from a costs application against them as a
furtherance of the administration of justice? Alternatively, is it against the
administration of justice principles not to allow a costs application of the
type envisaged by the Administrators to be brought against Dr Zamar?
In my judgment, that question should be looked at in the
light of modern developments of the law in relation to litigation. Thus, wasted
costs applications against advocates have been decoupled from the immunity. The
immunity has been destroyed as regards advocates. In neither of those cases did
the Courts accept submissions that the immunity inhibited advocates fearlessly
representing their clients. Indeed they rejected them. As regards experts in
Stanton the Court of Appeal equally was dismissive of the belief that Experts
would be deterred from giving proper reports because of a potential action
against them.
It seems to me that in the administration of justice,
especially, in spite of the clearly defined duties now enshrined in CPR 35 and
PD 35, it would be quite wrong of the Court to remove from itself the power to make
a costs order in appropriate against an Expert who, by his evidence, causes
significant expense to be incurred, and does so in flagrant reckless disregard
of his duties to the Court.” [1162]
(b)
Withhold Payment
6.251
There is some authority for the proposition that evidence of misconduct
of an expert witness, such as professional negligence, could be allowed as
shield for a claim by the expert witness for unpaid fees.[1163]
6.252
Another possibility in this regard would be for the judge hearing a case
to have the power to limit or disallow the expert’s fees if there were costs
wasted attributable to the expert. The CPR may already contain this power in
CPR 35.4 (4), although on the wording it is not clear that this power contained
in the CPR can be used retrospectively.
(c)
Contempt of
Court
6.253
Civil contempt arises where a person fails to follow a court order.
Therefore it may occur that where an expert witness has failed to carry out an
order of the court for example to make full disclosure of expert reports as
required under Statutory Instrument No. 391 of 1998 to the expert for the other
side, the expert may be convicted of civil contempt of court.
F
Conclusion
6.254
The above shows the range of existing ways in which an expert witness
may be punished for failing to meet the required standard whilst giving expert
evidence. Some alternative or additional ways in which liability may be imposed
on an expert are also debated.
6.255
The Commission believes that reducing the likelihood of biased or
negligent experts and increasing the overall standard and quality of expert
evidence going before the courts is best achieved by the availability of
sufficient guidance and education for expert witnesses about their role and
duties, and the existence of appropriate punitive measures for dealing with
experts that fail in these duties.
CHAPTER 7
SUMMARY OF provisional recommendations
7.01
The Commission’s provisional recommendations in this Consultation
Paper may be summarised as follows.
7.02
The Commission provisionally recommends that further research be
conducted into the functioning of translators in our court system in order to
ascertain if reforms need to be taken to improve access to justice. [Paragraph
2.47]
7.03
The Commission provisionally recommends that the common knowledge rule
should not be abolished and that matters of common knowledge should remain
outside of the scope of matters on which expert testimony can be given.
[Paragraph 2.192]
7.04
The Commission provisionally recommends that the Ultimate Issue rule
should not be abolished and should have continued application as it does not
impose any excessive difficulties in practise. [Paragraph 2.242]
7.05
The Commission provisionally recommends that the Court should continue
to be entitled to allow expert evidence to inform and educate the judge and or
jury about the background to the ultimate issue where necessary, whilst
emphasising that the ultimate decision on such issues is for the court and not
the expert. [Paragraph 2.243]
7.06
The Commission provisionally recommends that experts should be required,
as far as possible, to distinguish clearly between matters of fact and matters
of opinion when giving their expert evidence both orally and in the expert
report. [Paragraph 2.252]
7.07
The Commission provisionally recommends that a reliability test should
be introduced as an additional requirement for admissibility of all expert
testimony. [Paragraph 2.383]
7.08
The Commission
provisionally recommends the introduction of a judicial guidance note outlining
the factors that can be taken into account by the trial judge when assessing
whether the expert evidence in question meets the requisite reliability
threshold. [Paragraph 2.390]
7.09
The Commission provisionally recommends that the general acceptance
test, by focusing on the number of experts in the area that recognise the
theory, rather than assessing the subjective merits of the theory itself, imposes
too onerous a burden in terms of its provenance as opposed to its content to be
considered an appropriate test to determine the reliability of the evidence.
[Paragraph 2.394]
7.10
The Commission provisionally recommends the introduction of a judicial
guidance note outlining a non-exhaustive and non-binding list of factors, based
on empirical validation, which can be used to help the court assess the
reliability of tendered expert evidence. [Paragraph 2.400]
7.11
The Commission provisionally recommends that the court should have the
discretion to determine whether or not evidence that fails to satisfy the
reliability test should be excluded. The Commission also provisionally
recommends that where the extent of the reliability is uncertain, or where the
trial judge feels it appropriate or necessary, he or she can argue that the
evidence be admitted subject to a warning to the jury about its uncertain
reliability. [Paragraph 2.406]
7.12
The Commission invites submissions as to whether experience-only based
knowledge should suffice to be entitled to give expert evidence or whether
formal, professional qualifications, study or training is necessary. [Paragraph
3.48]
7.13
The Commission
provisionally recommends the adoption of a definition of the term “expert” for
the purposes of giving expert testimony and invites submissions on the form of
wording that would be appropriate for such a definition. [Paragraph
3.58]
7.14
The Commission invites submissions as to whether experience-only based
knowledge should suffice for a witness to be entitled to give expert evidence
or whether formal, professional qualifications, study or training is necessary.
[Paragraph 3.59]
7.15
The Commission provisionally recommends that a person seeking to act as
an expert witness need not be actively involved in the field of expertise at
the time of the giving of expert evidence. [Paragraph 3.60]
7.16
The Commission provisionally recommends that, when assessing the
competency of an individual to be considered an expert, considerable account be
taken of the length of time they have spent studying or practising in the
particular area, as well as, in the case of retired people and others no longer
practising, the length of time they have spent away from the field. [Paragraph
3.61]
7.17
The Commission provisionally recommends that a formal guidance code for
expert witnesses, based on the principles set down in the English case National
Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikerian Reefer)[1164]
should be developed which would outline the duties owed by expert witnesses and
which would be made available to all persons seeking to act as expert witnesses.
The Commission invites submissions on the form, statutory or non-statutory,
this guidance should take and whether all the specific duties identified in The
Ikerian Reefer should be adopted. [Paragraph 3.246]
7.18
The Commission provisionally recommends that there should not be a
prohibition on treating therapists acting as expert witnesses. [Paragraph 4.28]
7.19
The Commission provisionally recommends that there should not be a
prohibition on the giving of evidence by experts who have a pre-existing
relationship with one of the parties to an action. [Paragraph 4.132]
7.20
The Commission provisionally recommends that an expert witness should be
obliged to disclose the existence of any pre-existing relationship with a party
to a case or any other potential conflict of interest. [Paragraph 4.133]
7.21
The Commission also provisionally recommends that the court should be
encouraged as far as possible to limit the amount of time spent by an expert
witness in court to that which is reasonably necessary to give their expert
evidence. [Paragraph 4.134]
7.22
The Commission provisionally recommends that there should be no change
to the overriding duty owed by the expert witness to the court. The Commission
also provisionally recommends that the expert witness should continue to owe a
duty to the court which supersedes any duty owed to the instructing party.
[Paragraph 4.136]
7.23
The Commission invites submissions on whether there should be a general
requirement that court permission is expressly required before a party can
adduce expert evidence. [Paragraph 5.41]
7.24
The Commission
provisionally recommends that determination of the admissibility of expert
evidence and expert witnesses should continue to take place during the trial
process but that the court should have discretion to order pre-trial
determination where this is likely to have a significant impact on the length
and costs of a trial. [Paragraph 5.52]
7.25
The Commission provisionally recommends that parties to litigation
should formally agree terms of engagement in writing from the outset with
expert witnesses instructed by them, and that this requirement could be
included as part of a draft code of guidance for expert witnesses and their
instructing parties. The Commission also provisionally recommends that any such
guide should set out the specific issues which should be agreed, that this
should be a non-exhaustive list. The Commission invites submissions on what
should be included in such guide, particularly in the context of individuals
not accustomed to the giving of expert testimony. [Paragraph 5.62]
7.26
The Commission provisionally recommends the inclusion in any guidance of
a provision recommending that full information be given by the instructing
party to expert witnesses throughout the extent of their appointment by the
party, in particular concerning procedural requirements, which should not
prejudice the manner in which the expert witness prepares his or her evidence
for court. [Paragraph 5.73]
7.27
The Commission provisionally recommends that there should be an express
provision prohibiting fee arrangements with expert witnesses which are
conditional on the outcome of a case, as such arrangements are likely to impede
the independence of the expert witness. [Paragraph 5.95]
7.28
The Commission provisionally recommends that it would be appropriate for
the court and the parties to be empowered to encourage pre-trial meetings
between experts, and invites submissions on the form or forms this might take.
[Paragraph 5.116]
7.29
The Commission provisionally recommends that both parties be required to
answer questions about the contents of their expert reports prior to the trial
when these are put by the other party. [Paragraph 5.120]
7.30
The Commission invites submissions on whether it would be appropriate
for an expert witness to put a request to the court for information about
issues relating to how he or she can satisfactorily fulfil their role and
duties as an expert witness where they feel they have not received sufficient
information from those instructing them. [Paragraph 5.125]
7.31
The Commission invites submissions as to whether the court should be
empowered to order that a party disclose all necessary information to the other
party where this is not forthcoming and where needed in order to create a
comprehensive expert report. [Paragraph 5.138]
7.32
The Commission invites submissions on whether it would be appropriate to
recommend the extension of a requirement to exchange expert reports, currently
confined to personal injuries actions, to all categories of civil claims.
[Paragraph 5.175]
7.33
The Commission provisionally recommends that there should be a set form
and structure for expert reports, which might include the following elements:
·
The report must be addressed to the court and not to the party or
parties from whom instructions have been received.
·
The expert’s qualifications and experience should be outlined in detail
and relevant certificates of proof attached.
·
The terms and conditions of the appointment of the expert witness
including the payment arrangements should be explained.
·
All material instructions, oral and written, which were given to the
expert, and on the basis of which the report was written must be outlined.
·
If a potential conflict of interest arises, the facts relating to this
should be stated.
·
All relevant information relating to the issue, including that which is
capable of detracting from the expert’s opinion, should be outlined.
·
All materials used by the expert in coming to the opinion, clearly
distinguishing between matters of fact and matters of opinion.
·
Where tests or experiments have been conducted in the course of creating
the report all related information must be included such as methodologies,
results and details about the individuals and qualifications of those involved
in the carrying out of these tests.
·
The expert should indicate if the opinion is provisional or conditional
on certain factors, or if they believe they cannot give a formal opinion on the
issue without further information, or where they believe they cannot make an
opinion without qualification.
·
A signed declaration that the contents of the report are true and that
the expert understands the overriding duty owed to the court and that the
report has been created in compliance with this.
·
If, subsequent to the completion of a report, an expert changes his or
opinion on any material issue in the report, the expert witness must state this
in a supplementary report. [Paragraph 5.202]
7.34
The Commission invites submissions on whether parties could be
facilitated to decide jointly on an appropriate expert to be appointed, rather
than having a single expert being imposed by the court. [Paragraph 5.299]
7.35
The Commission welcomes submissions on whether panels of experts or
mixed panels should be used in certain types of cases. [Paragraph 5.310]
7.36
The Commission provisionally recommends that current voluntary
arrangements for training of expert witnesses, in which appropriate
familiarisation training for experts is given, should continue, and that a
mandatory system should not be introduced. [Paragraph 6.62]
7.37
The Commission provisionally recommends that a mandatory regulatory body
for expert witnesses should not be introduced. [Paragraph 6.88]
7.38
The Commission provisionally recommends that the relevant professional
bodies should be encouraged to introduce their own regulatory and disciplinary
processes for professionals who wish to act as expert witnesses. [Paragraph
6.110]
7.39
The Commission provisionally recommends that the immunity from suit for
expert witnesses should not be extended to cover disciplinary proceedings from
professional bodies. [Paragraph 6.142]
7.40
The Commission invites submissions on whether the traditional immunity
from civil or criminal suit for expert witnesses should be retained. [Paragraph
6.232]
[1]
See Report on the
Third Programme of Law Reform 2008 – 2014 (LRC 86 – 2007). Project 11 in
the Third Programme commits the Commission to examine the admissibility of
expert evidence and the role of expert witnesses, on which the Commission began
work under its Second Programme of Law Reform 2000-2007. The Commission
is also currently (December 2008) examining two other aspects of the law of
evidence under its Third Programme of Law Reform, documentary evidence
and technology (Project 7) and the hearsay rule (Project 8).
[2]
LRC 78-2005, available
at www.lawreform.ie.
[3]
Lord Woolf, Access to
Justice, Interim Report (1995) and Lord Woolf, Access to Justice, Final
Report (1996).
[4] This
is a reference to the view of Lord Wilberforce in Whitehouse v Jordan [1981] 1 All ER 267, in which he stated: “It
is necessary that expert evidence presented to the court should be and should
be seen to be the independent product of the expert uninfluenced as to form or
content by the exigencies of litigation.”
[5]
ALRC Report 89 Managing
Justice (1999), Chapter 6.
[6]
Hand “Historical and
Practical Considerations Regarding Expert Testimony” (1901) 15 Harvard LR 40 at
50.
[7]
Holdsworth A History
of English Law (Vol IX 2nd ed Methuen & Co Ltd 1945) at 130.
[8]
Rosenthal “The Development of
the Use of Expert Testimony” (1935) 2 (4) Law and Contemporary Problems
406.
[9]
Sward “A History of the
Civil Trial in the United States” (2003) 51 Kan. LR 347 at 352.
[10]
Baker An Introduction
to English Legal History (Butterworths 1990) at 5.
[11]
Sward “A History of the
Civil Trial in the United States” (2003) 51 Kan. LR 347 at 352.
[12]
Sward “A History of the
Civil Trial in the United States” (2003) 51 Kan. LR 347 at 352.
[13]
McAuley “Canon Law and
the End of the Ordeal” (2006) 26 Oxford University Press 473.
[14]
As per Allen “It must
always be remembered…that the accusation was supported by a very solemn oath,
and so long as oaths retained their magic, doubtless the theory was that there
must be some substance in the accusation, or else the accuser would be blasted
on the spot.” Allen Legal Duties (Oxford 1931) cited in McAuley &
McCutcheon Criminal Liability: A Grammar (Roundhall Sweet and Maxwell
2000) at 27 fn. 146.
[15]
McAuley “Canon Law and the End
of the Ordeal” (2006) 26 Oxford University Press 473.
[16]
See Pollock & Maitland The
History of English Law Before the Time of Edward 1 (A reprint of 2nd
ed Cambridge University Press 1968) Vol. 2 at 600; Holdsworth A History of English Law
(7th ed Methuen & Co Ltd 1956) Vol. 1 at 310.
[17]
Rosenthal “The Development of
the Use of Expert Testimony” (1935) 2 (4) Law and Contemporary Problems
406.
[18]
Sward “A History of the Civil
Trial in the United States” (2003) 51 Kan. LR 347 at 353.
[19]
(1818) 1 B. & Ald. 405.
[20]
Baker An Introduction to
English Legal History (Butterworths 1990) at 87.
[21]
Baker An Introduction to
English Legal History (Butterworths 1990) at 88.
[22]
Rosenthal “The Development of
the Use of Expert Testimony” (1935) 2 (4) Law and Contemporary Problems
at 406.
[23]
Sward “A History of the Civil
Trial in the United States” (2003) 51 Kan. LR 347 at 352.
[24]
Rosenthal “The Development of
the Use of Expert Testimony” (1935) 2 (4) Law and Contemporary Problems
at 406; Sward “A History of the Civil Trial in the United States” (2003) 51
Kan. LR 347 at 353.
[25]
For a detailed discussion of
the reasoning see McAuley “Canon Law and the End of the Ordeal” (2006) 26
Oxford University Press 473.
[26]
McAuley & McCutcheon Criminal
Liability: A Grammar (Roundhall Sweet and Maxwell 2000) at 26.
[27]
The Act of 1562-1563 Eliz C.
9, §12 (1563).
[28]
Sir Thomas Smith De
Republica Anglorum (M. Dewar ed 1982) at ii 15 Cited in Mitnick “From
Neighbour-Witness to Judge of Proofs: The Transformation of the English Civil
Juror” 32 (1988) Am. J. Legal Hist. 201 at 204 fn. 20.
[29]
Holdsworth A History of
English Law (Vol. IX 2nd ed Methuen & Co Ltd 1945) at 130.
[30]
Langbein “The Criminal Trial
before the Lawyers” (1978) 45 U. Chic. LR 263 cited in Golan “The History of
Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in
Context 7 at 9.
[31]
This term was coined by
Langbein in “The Criminal Trial before the Lawyers” (1978) 45 U. Chic. LR 263
cited in McAuley & McCutcheon Criminal Liability: A Grammar (Roundhall
Sweet and Maxwell 2000) at 37.
[32]
Golan “The History of
Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in
Context 7 at 9.
[33]
Rosenthal “The Development of
the Use of Expert Testimony” (1935) 2 (4) Law and Contemporary Problems
at 407.
[34]
It could also describe either
a jury of individuals of a higher class than usual (in that they satisfied certain
property holding requirements), or a ‘struck jury’, which is one formed by a
special procedure allowing parties to strike names from a large panel of
prospective jurors. (See Oldham “The Origins of the Special Jury” (1983) 50
University of Chicago LR 137 at 139).
[35]
As per Erskine Childers Esq.
“Special Juries do not exist, as many people seem to suppose, by the authority
of a modern statute; on the contrary, they are as ancient as the law itself.” (R
v Lambert & Ors, Printers & Proprietors of the Morning Chronicle 2nd
ed., London, 1794 at 16) Cited in Oldham “The Origins of the Special Jury”
(1983) 50 University of Chicago LR 137.
[36]
Thayer A Preliminary Treatise
on Evidence at the Common Law (Reprint of the 1898 edition, Rothman
Reprints Inc & Augustus M Kelley Publishers, New Jersey & New York,
1969) at 94.
[37]
An Act for the Better
Regulation of Juries 3 Geo. II, Cap. 25, (1730) (Cited in: Oldham “The
Origins of the Special Jury” (1983) 50 University of Chicago LR 137 at 139-140
fn. 12).
[38]
An Act for the Amendment of
the Law with Respect to Outlawries, Special Juries and the Future Effects of
Bankruptcy in Certain Cases (17 & 18 Geo. III, cap. 45) (Cited in: Howlin “Special Juries: A Solution to the Expert Witness?”
(2004) 12 ISLR 19 at 35 fn. 128).
[39]
See: Howlin
“Special Juries: A Solution to the Expert Witness?” (2004) 12 ISLR 19 at 35.
[40]
3 & 4 Wm. IV, Cap 91.
[41]
This Act consolidated all
previous legislation that had dealt with juries. (See; Howlin
“Special Juries: A Solution to the Expert Witness?” (2004) 12 ISLR 19 at 35 fn.
124).
[42]
See 28 Edw. 1, ch. 9 (1300)
Cited in Mitnick “From Neighbour-Witness to Judge of Proofs: The Transformation
of the English Civil Juror” 32 (1988) Am. J. Legal Hist. 201 at 205 fn. 22.
[43]
In fact, as they reached a
verdict on the basis of their personal knowledge, jurors were held liable for a
false verdict and if a later jury found that the first jury had erred, the
members of this first jury would be severely punished and their verdict upset.
See Holdworth A History of English Law (2nd ed Methuen & Co Ltd
1945) at 333-34.
[44]
As per Vaughan J in Bushell's
Case “Being return’d of the vicinage, whence the cause of action
ariseth, the law supposeth them [the jury] thence to have sufficient knowledge
to try the matter in issue (and so they must) though no evidence were given in
either side in Court, but to this evidence the Judge is a stranger.” (Bushell’s
Case (1670) Vaughan 1006, 135 at 147.
[45]
Oldham explains that there is
no uniform definition of the term ‘hundred’, but that historically it was used
to describe a subdivision of a county, and was measured by either population or
number of villages. (Oldham “The Origins of the Special Jury” (1983) 50
University of Chicago LR 137 at 165).
[46]
As per Belknap J in Wike v
Gernon (1374) Y.B. 48 Edw. III. 30, 17; s.c. Lib. Ass. 48,5; “In
an assize in this county, if the court does not see six, or at least five, men
of the hundred where the tenements are, to inform the others who are further
away, I say that the assize will not be taken…those of one county cannot try a
thing which is another county. Cited in Thayer A Preliminary Treatise on Evidence
at the Common Law (Reprint of the 1898 edition, Rothman Reprints Inc &
Augustus M Kelley Publishers, New Jersey & New York, 1969) at 91.
[47]
Mitnick “From
Neighbour-Witness to Judge of Proofs: The Transformation of the English Civil
Juror” 32 (1988) Am. J. Legal Hist. 201 at 204.
[48]
Holdsworth A History of English Law
(2nd ed Methuen & Co Ltd 1945) at 333-334.
[49] For a
discussion of the evolution from a jury of witnesses to a jury of fact-finders
see; Mitnick “From Neighbour-Witness to Judge of Proofs: The Transformation of
the English Civil Juror” 32 (1988) Am. J. Legal Hist. 201.
[50]
Sward “A History of the Civil
Trial in the United States” (2003) 51 Kan. LR 347 at 354.
[51]
In the 14th century
six hundredors were required to be empanelled on the jury (13 Edw. 3, ch. 4
(1360), in the 15th century only four hundredors were required (J.
Fortescue De Laudibus Legum Angliae ch. 25 A. Amos ed. 1825)) and in the 16th
century this number had dropped to only two hundredors being required (35 Hen.
8 ch. 6, § 6 III (4) (1543); 27 Eliz., ch. 6 § 5 (1585) Cited in Mitnick “From
Neighbour-Witness to Judge of Proofs: The Transformation of the English Civil
Juror” 32 (1988) Am. J. Legal Hist. 201 at 205 fn. 22.
[52]
An Act for the Amendment of
the Law and Better Advancement of Justice, 4 & 5 Anne, ch. 16, § 6
(1705) Cited in: Oldham “The Origins of the Special Jury” (1983) 50 University
of Chicago LR 137 at 165 fn. 149.
[53]
Thayer A Preliminary
Treatise on Evidence at the Common Law (Reprint of the 1898 edition,
Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey & New
York, 1969) at 91.
[54]
Old Bailey Online “Punishments
at the Old Bailey – Late 17th Century to Early 19th
Century” available at http://www.oldbaileyonline.org/history/crime/punishment.html.
[55]
Lambard Eirenarcha 555
(London 1614) Cited in Oldham “The Origins of the Special Jury” (1983) 50
University of Chicago LR 137 at 171.
[56]
The Clerk of Assize would
issue them with the following oath: “You as [matrons] of this Jury shall swear
that you shall search and try the Prisoner at the Bar, whether she be quick
with Child of a quick Child, and thereof a true Verdict shall return according
to the best of your judgment; so help you God.” (The Office of the Clerk of
Assize (London 1682 ed.) (1st ed. London 1660) cited in: Oldham “The Origins of
the Special Jury” (1983) 50 University of Chicago LR 137 at 171.
[57]
Blackstone notes that the
required verdict was quick with child, meaning that the pregnancy was
sufficiently advanced. “For barely with child, unless it be alive in the womb,
is not sufficient.” (Blackstone Commentaries on the Laws of England Vol.
IX (A Facsimile of the First Edition 1769 University of Chicago Press) Book IV,
Ch. 31 at 360.
[58]
Oldham “The Origins of the
Special Jury” (1983) 50 University of Chicago LR 137 at fn. 190.
[59]
Blackstone Commentaries on
the Laws of England Vol IX (A Facsimile of the First Edition 1769
University of Chicago Press) Book IV, Ch. 31 at 388.
[60]
Blackstone Commentaries on
the Laws of England Vol IX (A Facsimile of the First Edition 1769
University of Chicago Press) Book Iii, Ch. 23 at 362.
[61]
Robinson “A Historical and
Comparative Perspective on the Common Law Jury” in Vidmar (Ed) World Jury
Systems (Oxford University Press 2000) at 23.
[62]
Blackstone Commentaries on
the Laws of England Vol IX (A Facsimile of the First Edition 1769
University of Chicago Press) Book III, Ch. 23 at 360.
[63]
Thayer A Preliminary
Treatise on Evidence at the Common Law (Reprint of the 1898 edition,
Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey & New
York, 1969) at 94 fn. 4.
[64]
Ramirez “The Mixed Jury and
the Ancient Custom of Trial by Jury de Medietate Linguae: A History and a
Proposal for Change” (1994) 74 B.U.L. Rev. 777 at 783-784.
[65]
Statute 28 Edw. III. c. 18 See:
Blackstone Commentaries on the Laws of England Vol IX (A Facsimile of
the First Edition 1769 University of Chicago Press) Book III, Ch. 23 at 360.
[66]
Naturalization Act of 1870,
33 & 34 Vict., ch. 14, 5 (Eng.) Cited in Ramirez “The Mixed Jury and the
Ancient Custom of Trial by Jury de Medietate Linguae: A History and a Proposal
for Change” (1994) 74 B.U.L. Rev. 787.
[67]
Hand “Historical and Practical
Considerations Regarding Expert Testimony” (1901) 15 Harvard LR 40 at 41.
[68]
These and other examples of
cases can been see in Riley Memorials of London and London Life in the 13th,
14th and 15th Centuries (Longmans Green & Co
1868) (Cited in Hand “Historical and Practical Considerations Regarding Expert
Testimony” (1901) 15 Harvard LR 40 at 41 fn. 2).
[69]
Hand “Historical and Practical
Considerations Regarding Expert Testimony” (1901) 15 Harvard LR 40 at 41.
[70]
Sayles (ed) Select Cases in
the Court of King’s Bench Volume VI Edward III 1314-1377 (1965
Selden Society) Cited in Oldham “The Origins of the Special Jury” (1983) 50
University of Chicago LR 137 at fn. 215.
[71]
Oldham “The Origins of the
Special Jury” (1983) 50 University of Chicago LR 137 at 175.
[72]
Oldham “Special Juries in
England: Nineteenth Century Usage and Reform” Journal of Legal History 148.
[73]
English Jury Act 1730 3
Geo. II, Cap. 25, 1730 (Cited in Oldham “Special Juries in England: Nineteenth
Century Usage and Reform” Journal of Legal History 151 fn. 18).
[74]
Oldham “Special Juries in
England: Nineteenth Century Usage and Reform” Journal of Legal History 148
at 149.
[75]
For examples of these cases
where special juries were utilised see Howlin
“Special Juries: A Solution to the Expert Witness?” (2004) 12 ISLR 19 at 39-40
fn. 165-179.
[76]
Oldham “Special Juries in
England: Nineteenth Century Usage and Reform” Journal of Legal History 148
at 151.
[77]
Minutes of Evidence, Select
Committee on Special and Common Juries, 7 July 1868, at 47 (Cited in: Oldham
“Special Juries in England: Nineteenth Century Usage and Reform” Journal of
Legal History 148 at 151).
[78]
Bentham The Elements of the
Art of Packing, as Applied to Special Juries, Particularly in Cases of Libel
Law (Effingham Wilson 1821) at Ch. 4 § 4 Available at:
http://www.constitution.org/jb/packing.htm
[79]
As per John Horne in R v
Horne 20 State Trials 651, 687 (1777) “The special jurors…are qualified by
the crown; they are esquired by the crown; and these crown esquires always
attend upon the special juries…The Solicitor of the Treasury, who is constantly
in this employ of striking special juries, knows all the men, their sentiments,
their descriptions, and the distinction of men.” (Cited in: Oldham “Special
Juries in England: Nineteenth Century Usage and Reform” Journal of Legal
History 148 at 153).
[80]
Oldham “Special Juries in
England: Nineteenth Century Usage and Reform” Journal of Legal History 148
at 158-9.
[81]
6 Geo IV, Cap. 50, section
31-32.
[82]
To compensate for the lack of
definition, the Juries Act (Ireland)1867 was introduced, section 14 of
which set out a list of all persons capable of sitting on an expert jury in
Ireland. The list included “the sons of Peers, Baronets, Knights and
Magistrates, persons who had served the office of Sheriff of Grand Juror,
bankers, wholesale merchants who did not carry out any retail trade; traders
who were possessed of personal property of the value of £5000, and the sons of
such persons.” (Howlin “Special Juries: A Solution to
the Expert Witness?” (2004) 12 ISLR 19 at 38).
[83]
6 Geo IV, c. 50, section 31.
Cited in; Oldham “Special Juries in England: Nineteenth Century Usage and
Reform” Journal of Legal History 148 at 155.
[84]
33 & 34 Vict. Cap. 77
Cited in; Oldham “Special Juries in England: Nineteenth Century Usage and
Reform” Journal of Legal History 148 at 159.
[85]
33 & 34 Vict. Cap. 77
sections 11-15, 17, 19.
[86]
33 & 34 Vict. Cap. 77
section 6.
[87]
Juries Act 1949, 12
& 13 Geo. 6, Ch. 27 sections 18-19. The remaining exception was the City of
London Special Jury, which was eventually abolished in 1971 in the Courts
Act 1971 Ch. 23, Para 42.
[88]
Section 66 of the Juries
Act 1927 states: “(1) On the passing of this Act every provision in any
statute, order, rule of court, or other enactment whereby any person is
entitled either generally or in particular circumstances to a special jury
shall cease to have effect. (2) Every reference in any statute, order, rule of
court, or other enactment not repealed or terminated by this Act to a special
jury or to a common jury shall be construed and have effect as a reference to a
jury under this Act.”
[89]
Dickey “The Province and
Function of Assessors in English Courts” (1970) 33 MLR 494.
[90]
Dickey “The Province and
Function of Assessors in English Courts” (1970) 33 MLR 494 at 501.
[91]
Re Rumney and Wood (1541),
Selden Society, Vol. 6, 102 (Cited in Dickey “The Province and Function of
Assessors in English Courts” (1970) 33 MLR 494).
[92]
Thus, section 59 of the Supreme
Court of Judicature (Ireland) Act 1877 provides for the use of assessors in
the High Court and Order 36, rule 41 of the Rules of the Superior Courts
1986 provides for their appointment “in such manner and upon such terms as
the court shall direct.” Similarly, under Section 95 of the Patents Act 1992,
in patents litigation the court may appoint a specially qualified assessor if
it thinks fit, and try the case wholly or partially with his or her assistance.
Under section 64 of the Railway Safety Act 1995, an assessor may be
called to assist the court of inquiry set up to investigate railway incidents.
In the context of admiralty, under section 38 of the Merchants Shipping
(Investigation of Marine Casualties) Act 2000, assessors can be enlisted to
assist the court in inquiries to investigate marine casualties, and under
section 73 of the Harbours Act 1996 assessors can be recruited if needed
where an inquiry has been set up in relation to the revocation or suspension of
a pilot’s license. Section 2 of the Tribunals of Inquiry (Evidence)
(Amendment) Act 1979 provides for the use of assessors in tribunals of
inquiry. Section 15 of the Comptroller and Auditor General and Committees of
the Houses of the Oireachtas (Special Provisions) Act 1998 provided that
the Committee could appoint an assessor if needed for the performance of its
functions.
[93]
[1944] A.C. 62.
[94]
Dickey “The Province and
Function of Assessors in English Courts” (1970) 33 MLR 494 at 501, 504.
[95]
The Gazelle (1842)
1 Wm. Rob 471, 474; 166 E.R. 648, 649; Saul v St. Andrew's Steam Fishing Co
Ltd, The St. Chad [1965] Lloyd’s Rep 1 (CA).
[96]
New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 2.14.
[97]
(1884) 9 P.D.
137.
[98]
(1884) 9 P.D. 137
at 141.
[99]
A mayhem was a common law
offence which consisted of the intentional removal of a body part needed by the
person to engage in combat.
[100]
(1345) Anonymous, Lib. Ass. 28
pl. 5 (28 Ed. III) Cited in Holdsworth A History
of English Law Vo. 10 (2nd ed Methuen
& Co Ltd 1945) at 212.
[101]
Holdsworth A History of English Law Vo. 10 (2nd ed Methuen & Co Ltd 1945) at 212.
[102]
(1494) Anonymous 21 H. VII. 33
pl. 30 Cited in Hand “Historical and Practical Considerations Regarding Expert
Testimony” (1901) 15 Harvard LR 40 at 43 fn. 2.
[103]
(1554) Plowden 124; 75 ER 182.
[104]
In this case the question
arose about the true meaning of the Latin word ‘licet,’ as the defendant
claimed that the use of this word made the plaintiff’s allegations uncertain.
It was argued that the word ‘licet’ is “not an allegation in fact….but is only
an argumentative allegation” Staunford J held; “In order to understand it
truly, being a Latin word, we ought to follow the steps of our predecessors
Judges of the law, who, when they were in doubt about the meaning of any Latin
words, enquired how those that were skilled in the study thereof took them, and
pursued their construction” (Per Staunford J Buckley v Rice Thomas
(1554) Plowden 124; 75 ER at 189).
[105]
Per Saunders J. Buckley v Rice
Thomas [1554] Plowden 124; 75 ER at 192.
[106]
Buckley v Rice Thomas (1554)
Plowden 124; 75 ER at 193.
[107]
Holdsworth A History of English Law Vol. 10 (2nd ed Methuen & Co Ltd 1945) at 212.
[108]
Rosenthal “The Development of
the Use of Expert Testimony” (1935) 2 (4) Law and Contemporary Problems
at 408.
[109]
Act of 1562-1563, 5 Eliz. Ch. 9
Paragraph 12 of this Act imposed a penalty of ten pounds on any person who
refused to attend when served with compulsory process to testify, and created a
private cause of action against the reluctant witness in favour of "the
party grieved" for the "loss and hindrance that the party which
procured the said process shall sustain, by reason of the non-appearance of the
said witness.” (Cited in Wasserman “The Subpoena Power: Pennoyer’s Last
Vestige” (1989) 73 Minn. L. Rev. 37).
[110]
Golan “The History of Scientific
Expert Testimony in the English Courtroom” (1999) 12 Science in Context
7 at 9.
[111]
Golan “The History of Scientific
Expert Testimony in the English Courtroom” (1999) 12 Science in Context
7 at 10.
[112]
(1671) Vaughan, 142, 22 Car. 2. Cited
in Hand “Historical and Practical Considerations Regarding Expert Testimony”
(1901) 15 Harvard LR 40 at 44-45.
[113]
Wigmore A Treatise on the
Anglo-American System of Evidence in Trial at Common Law (3rd edition,
Little Brown and Company, Boston, 1940) Vol. VII at §1918.
[114]
(1960) 94 I. L.T.R. 185.
[115]
AG (Ruddy) v Kenny (1960) 94
I. L.T.R. 185 at 190.
[116]
Wigmore A Treatise on the
Anglo-American System of Evidence in Trial at Common Law (3rd edition, Little
Brown and Company, Boston, 1940) Vol. VII at §1918.
[117]
(1960) 94 I. L.T.R. 185.
[118]
(1960) 94 I. L.T.R. 185 at
190.
[119]
Golan “The History of Scientific
Expert Testimony in the English Courtroom” (1999) 12 Science in Context
7 at 10.
[120]
Golan “The History of Scientific
Expert Testimony in the English Courtroom” (1999) 12 Science in Context
7 at 10.
[121]
Rosenthal “The Development of
the Use of Expert Testimony” (1935) 2 (4) Law and Contemporary Problems
at 412.
[122]
(1620) Cro. Jac. 541.
[123]
(1665) 6 Howell, State Trials, 687.
[124]
Rosenthal “The Development of
the Use of Expert Testimony” (1935) 2 (4) Law and Contemporary Problems
at 409.
[125]
(1678) Ib. 1337, 1228, 1340, 1341.
[126]
Hand “Historical and Practical
Considerations Regarding Expert Testimony” (1901) 15 Harvard LR 40 at 46.
[127]
(1679) 7 Howell, State Trials, 185,
186.
[128]
See for example R v Kidd,
(1701) 14 Howell, State Trials, 137; R v Blandy, (1744) 18 Howell, State
Trials, 1138; Cited in; Hand “Historical and Practical Considerations Regarding
Expert Testimony” (1901) 15 Harvard LR 40 at 48.
[129]
(1744) 18 Howell, State Trials, 70
Cited in Hand “Historical and Practical Considerations Regarding Expert
Testimony” (1901) 15 Harvard LR 40 at 47 fn. 1.
[130]
Per Irish K.B., Marley C.J., Ward
and Blennerhassett JJ.; “The apprehension of a witness is asked where no other
evidence can be had in capital cases; as where a witness is produced to prove a
wound was given, he is asked whether he apprehends that wound was the cause of
death. That must be asked, for he cannot tell otherwise. It is the best
evidence that can be had in that case. But as to a fact, if you make the
apprehension of a witness necessary, it takes away all proof of fact.” (R v
Heath (1744) 18 Howell, State Trials, 70 at 76).
[131]
(1782) 3 Douglas 157.
[132]
Golan “The
History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science
in Context 7 at 11.
[133]
Folkes v Chadd (1782) 3
Douglas 157 at 159.
[134]
Trinity House is a still-existing
corporation that is concerned with the safety of shipping and the well-being of
sea-farers. It is thought to have originated in a 1514 by Charter of King Henry
VIII to a fraternity of mariners “so that they might regulate the pilotage of
ships in the King's streams.” (Ruddock “The Trinity House at Deptford in the
Sixteenth Century” (1950) 65(257) The
English Historical Review 458).
[135]
Folkes v Chadd (1782) 3
Douglas 157 at 159.
[136]
Rosenthal “The Development of
the Use of Expert Testimony Law and Contemporary Problems” (1935) 2 (4) Expert
Testimony at 414.
[137]
(1699) 13 Howell, State Trials,
1126-1135.
[138]
(1760) 19 Howell, State Trials,
924-944.
[139]
Hand “Historical and Practical
Considerations Regarding Expert Testimony” (1901) 15 Harvard LR 40 at 48.
[140]
1 Camp. 116.
[141]
Beckwith v Sydebotham 1 Camp.
116 at 116.
[142]
(1843) 10 Cl. & Fin. 200.
[143]
Mc’Naghten’s Case (1843) 10
Cl. & Fin. 200 at 212.
[144]
Wigmore A Treatise on the
Anglo-American System of Evidence in Trial at Common Law (3rd edition, Little
Brown and Company, Boston, 1940) Vol. VII at §686.
[145]
(1782) 3 Douglas 157.
[146]
Golan “The
History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science
in Context 7 at 10.
[147]
(1782) 3 Douglas 157.
[148]
Folkes v Chadd (1782) 3
Douglas 157 at 159.
[149]
Golan “The
History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science
in Context 7 at 13.
[150]
Golan “The
History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science
in Context 7 at 14.
[151]
The Times April 14, 1820.
[152]
After hearing two days of expert
testimony the jury found in favour of the plaintiffs and the insurance company
appealed on the basis that the verdict had been reached against the weight of
the evidence. The court suspended the appeal until suits against other insurance
companies who had refused to pay out to the plaintiffs had been settled. The
next suit, against the Phoenix insurance company, involved the same
litany of experts and same amount of contradictory experiments, and was also
found in favour of the plaintiffs. No other trials were reported. (Golan “The History of Scientific Expert Testimony in the English
Courtroom” (1999) 12 Science in Context 7 at 20).
[153]
Severn, King and Company v
Imperial Insurance Company The Times April 14, 1820.
[154]
Severn, King and Company v
Imperial Insurance Company The Times April 14, 1820.
[155]
(1877) 6 Ch D 415.
[156]
Thorn v Worthing Skating Rink Co (1877)
6 Ch D 415.
[157]
Golan “The
History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science
in Context 7 at 20.
[158]
Golan “The
History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science
in Context 7 at 24.
[159]
(1960) 94 I. L.T.R. 185.
[160]
AG (Ruddy) v Kenny (1960)
94 I. L.T.R. 185 at 190.
[161]
As per Cooper LJ in Davie v
Edinburgh Magistrates [1953] SLT 54.
[162]
McGrath Evidence (Thomson Roundhall 2005), p.311.
[163]
(1960) 94 I.L.T.R.
185.
[164]
(1960) 94 I.
L.T.R. 185 at 190.
[165]
As per Cooper LJ in Davie
v Edinburgh Magistrates [1953] SLT 54.
[166]
(1960) 94 I.L.T.R. 185.
[167]
AG (Ruddy) v Kenny
(1960) 94 I.L.T.R. 185 at 190.
[168]
(1867) 1 I.C.L.R. 211.
[169]
McFadden v Murdock (1867)
1 I.C.L.R. 211 at 218.
[170]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 2-001 – 2-006.
[171]
United States Shipping
Board v St. Albans [1931] AC 632.
[172]
Lord Woolf (1996) Access to
Justice, Final Report, HMSO at 137.
[173]
Hannibal & Mountford The
Law of Civil and Criminal Evidence. Principles and Practices (Pearson
Education 2002) pg. 55.
[174]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 2-001 – 2-006.
[175]
See the cases discussed in the
Commission’s Report on the Establishment of a DNA Database (LRC
78-2005), including The People (DPP) v Mark Lawlor Central
Criminal Court, 2 December 1995; The People (DPP) v Ian Horgan Irish
Examiner 25 June 2002; The People (DPP) vl Murphy [2005] 4 IR 504; R v Doheny & Adams (1997)
1 Cr.App.R. 369.
[176]
Malek & Ors (Eds) Phipson
on Evidence (16th Ed Thomson Sweet and Maxwell 2005) at 1025.
[178]
[2004] UKHL
46 at 135.
[179]
[1925] 1 I.R. 90.
[180]
[1925] 1 I.R. 90 at 112; See
also Waterford Harbour Commissioners v British Railways Board [1979]
ILRM 296.
[181]
See Society for the
Protection of Unborn Children (Ireland) Ltd. v Grogan (No. 3) [1992] 2 IR
471; F. v Ireland [1995] 1 IR 321.
[182]
Roche v Pielow [1986]
I.L.R.M. 189.
[183]
English Exporters (London)
Ltd. v Eldonwall Ltd. [1973] Ch. 415.
[184]
O’Donovan v Cork Co.
Council [1967] I.R. 409.
[185]
O’ Connail v The Gaelic
Echo (1954) Ltd. (1958) 92 I.L.T.R. 194.
[186]
McFadden v Murdock (1867)
Exchequer IR ICL 211.
[187]
[1993] 1 I.R. 123.
[188]
[1978] 3 All ER 571.
[189]
Midland Bank Trust Co. Ltd
v Hett Stubbs & Kemp [1978] 3 All ER 571 at 582.
[190]
[1906] WN 54.
[191]
See also Re Cook [1948]
Ch. 212.
[192]
[1998] EWCA Civ 1081.
[193]
Hoechst Celanese Corporation
v BP Chemicals Limited [1998] EWCA Civ 1081.
[194]
See for example Baldwin
& Francis Ltd. v Patents Appeal Tribunal [1959] 1 Q.B. 105; Cooper
(Max) and Sons Pty Ltd v Sydney City Council (1980) 54 A.L.J. 234 cited in
Lewison The Interpretation of Contracts (Sweet and Maxwell 2004) at
130-132.
[195]
[2003] EWCH 1274.
[196]
Under section 80 of the
English Copyright Patents and Designs Act 1988 the author of a
literary, dramatic, musical or artistic work has the right, in certain
circumstances, not to have his work subjected to derogatory treatment. Under section 80 (2) (b) of the Act a treatment is derogatory if
“it amounts to distortion or mutilation of the work or is otherwise prejudicial
to the honour or reputation of the author”.
[197]
Di Sora v Phillips
(1863) 10 H.L. Cas. 624; Fothergill v Monarch Airlines Ltd [1981] A.C.
251 Cited in Lewison The Interpretation of Contracts (Sweet and
Maxwell 2004) at 128-129
[198]
Hodgkinson & James argue
that court interpreters can properly be described as expert witnesses in that
they provide expert advice to the court, in evidential form, that is outside
the specialist knowledge or ability of the court, and which can be evidentially
challenged. (Hodgkinson & James Expert Evidence: Law and Practice (2nd ed Sweet & Maxwell 2007) at
5-016)
[199]
Article 5(2) provides:
“Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.”
Article 6 (3) provides: “Everyone charged with a criminal offence has the
following minimum rights: a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the accusation against
him…e) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court.”
[200]
The Courts Service Strategic
Plan 2005-2009 states that the Courts Service will continue to provide
interpreters in court to ensure that all court users can do their business in
the language of their choice. Courts Service ‘Sustaining the Momentum – Courts
Service Strategic Plan 2005-2009’ at 17. Available at www.courts.ie.
[201]
Phelan (2002) ‘Working
Group on the Jurisdiction of the Courts: Submission from the Irish Translators
and Interpreters Association (ITIA)’ Available at http://www.translatorsassociation.ie/component/option,com_docman/task,cat_view/gid,28/Itemid,16;
Battles “Mistranslating Court Interpreters are ‘a Threat to Justice’” The
Sunday Times 6 May 2007; National Consultative Committee on Racism and
Interculturalism ‘Interpreting, Translation and Public Bodies in Ireland: The
Need for Policy and Training’ (2007, NCCRI) Available at:
http://www.translatorsassociation.ie/component/option,com_docman/task,cat_view/gid,10/Itemid,16.
[203]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 2-003.
[204]
[1996] Crim LR 519, CA.
[206] In this
case, the defendant was accused of murdering her baby by excessive shaking.
Both parties’ experts were in conflict about the results which were
demonstrated by a slide taken from the victim’s brain. One expert was of the
view that the slide demonstrated blood oozing from the dura into the subdural
space which was indicative of intradural haemorrhages; the other expert
believed the slide was indicative of subdural haemorrhages.
[207]
[2005]
EWCA Crim 1980 at para. 73.
[208]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 1-012.
[209]
[1983] 2 Lloyd’s Rep. 210.
[210]
[1983] 2 Lloyd’s Rep. 210 at
233.
[211]
R.T. v V.P. [1990] 1
I.R. 545; R. v Abadom [1983] 1 W.L.R. 131.
[212]
LRC 25-1988. The Commission is
currently reviewing the hearsay rule in both civil and criminal cases under its
Third Programme of Law Reform 2008-2014, project 8.
[213]
For a detailed discussion of
the categories of exceptions to the hearsay rule see McGrath Evidence
(Thomson Roundhall 2005) at 235-304.
[214]
For a detailed discussion of
operation of the hearsay rule in England in the context of expert witnesses see
Hodgkinson & James Expert Evidence: Law and Practice (2nd ed Sweet & Maxwell 2007) at
8-001 - 8-056.
[215]
Section 1 (1) provides that
“evidence shall not be excluded on the grounds that it is hearsay.”
[216]
As
per Dixon J in Ramsay v Watson (1961) 108 C.L.R. 642 “if the man
whom the physician examines refuses to confirm in the witness box what he said
in the consulting room, then the physician’s opinion may have little or no
value, for part of the basis of it has gone.” (at 649) See also; R v Abbey [1982] 2 S.C.R. 24 at 44.
[217]
(1838) 4 Bing. N.C. 489.
[218]
(1838) 4 Bing. N.C. 489 at
589.
[219]
(1961) 108 C.L.R. 642.
[220]
(1961) 108 C.L.R. 642 at 649.
[221]
Pattenden “Expert Opinion
Evidence Based on Hearsay” [1985] Crim. L.R. 85 at 86.
[222]
(1867) Exchequer IR ICL 211.
[223]
(1867) Exchequer IR ICL 211 at
219 Pigot CB approved the comments of Mansfield LJ in Folkes v Chadd (1782)
3 Douglas 157 in support of this view.
[224]
Pattenden “Expert Opinion
Evidence Based on Hearsay” [1985] Crim. L.R. 85 at 93.
[225]
Pattenden “Expert Opinion
Evidence Based on Hearsay” [1985] Crim. L.R. 85 at 93-95.
[226]
[1983] 1 W.L.R. 126.
[227]
[1983] 1 W.L.R. 126 at 131.
[228]
(1966) CanLII 3 (S.C.C.);
[1967] S.C.R. 14.
[229]
Wilband v The Queen 1966 CanLII 3 (S.C.C.),
[1967] S.C.R. 14 at 21.
[231]
[1973] 1 Ch. 415.
[232]
[1973] 1 Ch. 415 at 421.
[233]
R.T. v V.P. [1990] 1
I.R. 545
[234]
Per Richie J in Phillion v The Queen, [1978] 1 S.C.R. 18 at 24.
[235]
Per Jessup J.A. in the Canadian case R v Rosik [1971] 2 O.R. 47 at 84-85.
[236]
[1982]
2 S.C.R. 24.
[237]
R v Abbey [1982] 2 S.C.R. 24 at 45
[238]
[1990] 1IR 348.
[239]
[1990] 1 IR 545.
[240]
McGrath Evidence (Thomson
Roundhall 2005) at 319.
[241]
Unreported, High Court
February 25, 1998.
[242]
Unreported, High Court
February 25, 1998.
[243]
[1990] 1 I.R. 305
[244]
Under section 58 of the Children
Act 1908 a child under the age of 15 years could, in certain circumstances,
be placed in the care of a ‘fit person.’
[245]
In State (D and D) v
Groarke & Ors [1990] 1 I.R. 305 at 310, Finlay CJ stated: “In order to
determine with safety, having regard to the nature of this interview, such a
vital matter as to whether the conclusion reached by the doctor carrying out is
a sound conclusion which would warrant such a drastic step as the possibly
long-term removal of the care of a child out of the custody of its parents, it would
be necessary for the tribunal before which such evidence of conclusion was
given to have, in addition, the basic evidence from which that conclusion was
reached, namely the video recording (where it existed) of the interview between
the doctor and the child and a demonstration, in addition, of the precise use
and the expert witness’s belief in the meaning of the use by the child, of the
anatomical dolls.”
[246]
[1996] 1 I.R. 219.
[247]
Per O’Flaherty J Southern
Health Board v C [1996] 1 I.R. 219 at 239.
[248]
McGrath Evidence (Thomson
Roundhall 2005) at 321 – The admissibility of videotape evidence in civil cases
involving children is now provided in the Children Act 1997, and to a
certain extent in criminal proceedings by the Criminal Evidence Act 1992.
[249]
[2000] IEHC
11, High Court, 28 January 2000.
[250]
[2000] IEHC
11, High Court, 28 January 2000, at 19.
[251]
[2000] IEHC
11, High Court, 28 January 2000, at 21.
[252]
McG(P) v F(A) [2000] IEHC
11, High Court, 28 January 2000, at 25.
[253]
Supreme Court, 31 October
2003.
[254]
Toohey v Metropolitan
Police Commissioner [1965] 1 All ER 506 at 509-510, 512.
[255]
One of the duties of expert
witnesses identified by Cresswell J National Justice Compania Naviera SA v
Prudential Assurance Co Ltd (The Ikerian Reefer) [1993] 2 Lloyd’s Rep 68
is that an expert should clearly state when a particular issue falls
outside his area of expertise.
[258] [1990] ILRM
780
[259]
At paragraph 16.8 of the
expert’s report.
[260]
[1975] Q.B. 834.
[261]
R v Turner (1974), 60 Crim. App. R. 80, at p. 83.
[262]
(1955) 99 C.L.R. 111.
[263]
Transport Publishing Co. Pty.
Ltd. v The Literature Board of Review (1955) 99 C.L.R. 111 at 119.
[264]
[1975] QB 834.
[265]
Per Lawton LJ at 841-842.
[266]
[1975] Q.B. 834.
[267]
[1994] 2 S.C.R. 9 at 21.
[268]
[1992] I.L.R.M. 481.
[269]
[1993] 1 I.R. 123 at 148.
[270]
There are several other examples of
cases where the court has considered it inappropriate or unnecessary to hear
evidence relating to the role and duties of solicitors. See for example R v
Wahab & Ors [2002] EWCA Crim 1570 at Para 43 (Cited in
Malek & Ors (Eds) Phipson on Evidence (16th Ed Thomson
Sweet and Maxwell 2005) at 1033 fn. 97.
[271]
See for example R v Turner [1975]
Q.B. 834 and R v Mackenny (1981) 76 Cr. App. Rep. 271 However, this
decision was overturned in R v Pinfold and Mackenny (2003) where the
Court of Appeal held that the Court’s approach has developed over the years and
is now more generous towards the admission of expert evidence than was once the
case. (See Roberts “Towards the Principled Reception of Expert Evidence of
Witness Credibility in Criminal Trials (2004) 8 E. & P. 215).
[272]
See for example R v Raghip The
Times, December 9 1991; R v Ward 96 Cr App R 1; R v Steele [2003]
EWCA Crim 1640 all of which dealt with the credibility of confessions made
in custody.
[273]
(1981) 2 Frewen 57.
[274]
Per O’Higgins CJ (1981) 2 Frewen 57
at 88 (cited in Healy Irish Laws of Evidence (Thomson Roundhall 2004).
[275]
King v Lowery & R [1974]
A.C. 85.
[276]
This defence was introduced in
Ireland under section 6(1) of the Criminal Law (Insanity) Act 2006
which provides: “ Where a person is tried for murder and the jury or, as the
case may be, the Special Criminal Court finds that the person— (a) did
the act alleged, (b) was at the time suffering from a mental disorder,
and (c) the mental disorder was not such as to justify finding him or
her not guilty by reason of insanity, but was such as to diminish substantially
his or her responsibility for the act, the jury or court, as the case may be,
shall find the person not guilty of that offence but guilty of manslaughter on
the ground of diminished responsibility.”
[277]
Section 1 of the 2006 Act states:
“mental disorder includes mental illness, mental disability, dementia or any
disease of the mind but does not include intoxication.”
[278]
Section 2(1) of the UK Homicide
Act 1957 provides: “Where a person kills or is a party to the
killing of another, he shall not be convicted of murder if he was suffering
from such abnormality of mind (whether arising from a condition of arrested or
retarded development of mind or any inherent causes or induced by disease or
injury) as substantially impaired his mental responsibility for his acts and
omissions in doing or being a party to the killing.”
[279]
See Law Reform Commission Consultation
Paper on Child Sexual Abuse LRC CP 2-1989, Chapter 6; Law Reform Commission
Report on Child Sexual Abuse LRC 32 1990.
[280]
Law Reform Commission Consultation
Paper on Child Sexual Abuse LRC CP 2-1989 at 6.02.
[281]
Lowery v The Queen [1973] 3 All ER 662 (PC).
[282]
Toohey v Metropolitan Police
Commissioner [1965] 1 All ER 506 (HL).
[283]
Law Reform Commission Consultation
Paper on Child Sexual Abuse LRC CP 2-1989 at 6.05.
[284]
Law Reform Commission Consultation
Paper on Child Sexual Abuse LRC CP 2-1989 at 6.07-6.15.
[285]
Law Reform Commission Consultation
Paper on Child Sexual Abuse LRC CP 2-1989 at 6.16; Law Reform Commission Report
on Child Sexual Abuse LRC 32 1990 at 6.04.
[286]
93 Cr App R 382.
[287]
96 Cr App R 1.
[288]
People (AG) v Fennell (No 1) [1940]
I.R. 445.
[289]
R v Thornton (No. 2) [1996] 2
All ER 605; R v Sally Lorraine Emery (And another) (1993).
[290]
Hill v Baxter [1958] 1 Q.B.
277.
[291]
See Dix (1981) 74 Cr. App. R.
306 at 311 Cited in Mackay & Coleman “Excluding Expert Evidence: A Tale of
Ordinary Folk and Common Experience” [1991] Crim. L.R. 800 at 801.
[294]
[1989] 164 CLR 94.
[295]
Murphy v The Queen [1989] 164
CLR 94 at 110.
[296]
[1989] 164 CLR 94
[297]
Australian Law Reform Commission
“Interim Report 26 – Evidence” (ALRC June 1984) at 354-355.
[298]
Australian Law Reform Commission
“Interim Report 26 – Evidence” (ALRC June 1984) at 354-355.
[299]
Australian Law Reform Commission
“Interim Report 26 – Evidence” (ALRC June 1984) at 354-355.
[300]
Australian Law Reform Commission
“Interim Report 26 – Evidence” (ALRC June 1984) at 354-355. These
recommendations were reiterated in Australian Law Reform Commission “Report 38
– Evidence” (ALRC 1987) para 151(c).
[301]
Evidence Act 1995 (Cth) s. 80
provides: “Evidence of an opinion is not inadmissible only because it is
about…. (b) a matter of common knowledge.”
[302]
ALRC Report 102; NSWLRC Report 112;
VLRC Final Report; “Uniform Evidence Law” (December 2005).
[303]
Australian Law Reform Commission, Review
of the Evidence Act 1995, IP 28 (2004) at 6.52; See also Clark v Ryan
(1960) 103 CLR 486.
[304]
Australian Law Reform Commission, Review
of the Evidence Act 1995, IP 28 (2004) at 6.53; See also R v Smith
(2000) 116 A Crim R 1.
[305]
ALRC Report 102; NSWLRC Report 112;
VLRC Final Report; “Uniform Evidence Law” (December 2005) at 9.130.
[306]
ALRC Report 102; NSWLRC Report 112;
VLRC Final Report; “Uniform Evidence Law” (December 2005) at 9.133.
[307]
ALRC Report 102; NSWLRC Report 112;
VLRC Final Report; “Uniform Evidence Law” (December 2005) at 9.137.
[308]
New Zealand Law Commission “Evidence
Law: Expert Evidence and Opinion Evidence – A Discussion Paper (Preliminary
Paper 18, December 1991, NZLC).
[309]
Per McMullin J in R v B (an
accused) [1987] 1 NZLR 362, 367 cited in New Zealand Law Commission
“Evidence Law: Expert Evidence and Opinion Evidence – A Discussion Paper
(Preliminary Paper 18, December 1991, NZLC) at Para. 39.
[310]
New Zealand Law Commission “Evidence
Law: Expert Evidence and Opinion Evidence – A Discussion Paper (Preliminary
Paper 18, December 1991, NZLC) at Para. 40.
[311]
Federal Rules of Evidence Rule 702
(Available at http://www.law.cornell.edu/rules/fre/index.html.
[312]
New Zealand Law Commission “Evidence
–Evidence Reform of the Law” (Report 55 Volume 1 August 1999, NZLC) at
Para.74-75.
[313]
No 69 of 2006. The 2006 Act came
into force in 2007.
[314]
C. Fennell The Law of Evidence in
Ireland (2nd ed LexisNexis Butterworths 2003) at 168.
[315]
[1992] I.L.R.M. 481.
[316]
[1992] I.L.R.M. 776.
[317]
For example in Attorney General
(Ruddy) v Kenny (1960) 94 I.L.T.R. 185, opinion evidence that an accused
was unfit to drive due to drunkenness was admitted from a member of the Garda
Siochana, whereas in the later English decision R v Davies [1962] 3 All
ER 97 evidence on the same issue was excluded. Although these decisions are
from two different jurisdictions, the ultimate issue rule is a common law rule
that had equal application in both jurisdictions.
[319]
[1996] IEHC 23; [1997] 2 IR 506 at para [8].
[320]
See for example, F (Orse C) v C [1991]
2 I.R. 330
[321]
Law Reform Committee “Seventeenth
Report – Evidence of Opinion and Expert Evidence” (1970, London, HMSO) at para
63.
[322]
[1968] 1 Q.B. 159.
[323]
DPP v A and BC Chewing Gum Ltd
[1968] 1 Q.B. 159.
[324] (1993) 97
Cr.App.R. 260.
[325]
The rule has been similarly
abolished in civil cases by Section 3 of the Civil Evidence Act 1972.
[326]
R v Stockwell (1993) 97
Cr.App.R. 260 at 265-66.
[327]
[1968] 1 Q.B. 159.
[329]
Per Mance LJ R v Ugoh [2001]
EWCA Crim 1381 at 20.
[330]
Australian Law Reform Commission Interim
Report 26 – Evidence (ALRC June 1984) at para 359.
[331]
Australian Law Reform Commission
“Interim Report 26 – Evidence” (ALRC June 1984) at para 359.
[332]
Australian Law Reform Commission
“Interim Report 26 – Evidence” (ALRC June 1984) at para 359.
[333]
Australian Law Reform Commission
“Interim Report 26 – Evidence” (ALRC June 1984) at para 743.
[334]
Ontario Law Reform Commission, Report
on The Law of Evidence, 1976, 153-8; Law Reform Commission of Canada, Report
on Evidence, 97, 98 (ss 67-71); Federal/Provincial Task Force, Report on
Uniform Rules of Evidence, para 8-10.
[335]
Scottish Law Commission Memo No
46 Law of Evidence R.01-R.06. See also Law Reform Committee, 17; Criminal
Law Revision Committee, England and Wales, Eleventh Report, Evidence (General)
HMSO, London. 1977, para 266-272.
[336]
Criminal Law and Penal Methods
Reform Committee of South Australia, Third Report, Court Procedure and
Evidence, Govt Printer, Adelaide, 1975, para 6.
[337]
Australian Law Reform Commission, Review
of the Evidence Act 1995, IP 28 (2004).
[338]
Australian Law Reform Commission, Review
of the Evidence Act 1995, IP 28 (2004) at para 6.45.
[339]
Australian Law Reform Commission, Review
of the Evidence Act 1995, IP 28 (2004) at para 6.47; ALRC Report 102;
NSWLRC Report 112; VLRC Final Report; “Uniform Evidence Law” (December 2005) at
9.1116.
[340]
Australian Law Reform Commission, Review
of the Evidence Act 1995, IP 28 (2004) at para 6.47; ALRC Report 102;
NSWLRC Report 112; VLRC Final Report; “Uniform Evidence Law” (December 2005)
[341]
Australian Law Reform Commission, Review
of the Evidence Act 1995, IP 28 (2004) at para 6.47; ALRC Report 102;
NSWLRC Report 112; VLRC Final Report; “Uniform Evidence Law” (December 2005) at
9.1116.
[342]
[1982] 1 NZLR 618.
[343]
[1982] 1 NZLR 618 at 628.
[344]
New Zealand Law Commission “Evidence
Law: Expert Evidence and Opinion Evidence – A Discussion Paper (Preliminary
Paper 18, December 1991, NZLC).
[345]
New Zealand Law Commission “Evidence
Law: Expert Evidence and Opinion Evidence – A Discussion Paper (Preliminary
Paper 18, December 1991, NZLC) at para 43.
[346]
New Zealand Law Commission “Evidence
Law: Expert Evidence and Opinion Evidence – A Discussion Paper (Preliminary
Paper 18, December 1991, NZLC) at para 42, 44
[347]
New Zealand Law Commission “Evidence
–Evidence Reform of the Law” (Report 55 Volume 1 August 1999, NZLC) at Para.77.
[348]
This was the interpretation adopted
by the Federal Court of Australia in Arnotts Ltd v Trade Practices
Commission (1990) 24 FCR 313, 350 (Lockhart, Wilcox and Gummow JJ) quoting
Eggleston Evidence, Proof and Probability (2nd ed, 1983), at 147–148.
[349]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) 6-003.
[350]
(1843) 1 Car & Kir 23.
[351]
(1843) 1 Car & Kir 23 at 695.
[352]
See for example DN Greenwich
London Borough [2004] EWCA Civ 1659 a professional
negligence case where the court held that evidence from the defendant, an
educational psychologist, was evidence of fact, not evidence of an expert
witness, notwithstanding the fact that their evidence would be that of a
professional in the issue at hand.
[354]
[1980] 1 W.L.R. 874, [1980] 1 All
E.R. 467, 70 Cr. App. Rep. 39.
[355]
[1972] Crim. L.R. 174.
[356]
[2007] IEHC
150 at para. 16.
[357]
Per Charleton J, The People (DPP)
v Buckley [2007] IEHC 150 at para. 16.
[358]
[1972] Crim. L.R. 174.
[359]
[1980] 1 W.L.R. 874, [1980] 1 All E.R. 467, 70 Cr. App. Rep. 39.
[360]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 82.
[361]
[1982] 2
S.C.R. 24.
[362]
[1965] N.I. 151.
[363]
Sherrard v Jacob [1965] N.I.
151at 156.
[364]
Per Kingsmill Moore J in AG
(Ruddy) v Kenny (1960) 94 I. L.T.R. 185 at 190.
[365]
(1960) 94 I. L.T.R. 185.
[366]
No. 26 of 1972.
[367]
Section 8 provides that where a
garda states in proceedings that he believes that property which the respondent
is in control of constitutes the proceeds of crime, or was acquired by the
proceeds of crime, then that statement can be evidence of the matter referred
to an the value of the property.
[368]
Section 3 (4) (b) provides that
where an applicant for a barring order states a belief that he has a legal or
beneficial interest in the property the subject of the barring order, which
equals or rivals that of the respondent, the such belief is admissible in
evidence.
[369]
Section 9 provides that for
proceedings under the Act, the opinion of a person who appears to the
court to have the necessary qualifications or experience with respect to the
matter calling for specialist knowledge, shall be admitted in evidence. It also
sets out a number of matters on which expert evidence will be permitted.
[370]
(1953) SLT 54.
[371]
(1953) SLT 54 at 57.
[372]
(1903) 37 ILTR 54.
[373]
[1988] IESC 1; [1988] ILRM 629 (5th July, 1988).
[374]
[1988] IESC 1; [1988] ILRM 629 (5th July, 1988) at 35.
[375]
[1940] I.R. 445.
[376]
(1962) Frewen 267.
[377]
As per Keane J in F (Orse C) v F [1991]
ILRM at p.79: “It is the responsibility of the courts alone and not of
psychiatrists, however eminent, to determine whether a decree of nullity should
be granted.”
[378]
(1960) 94 I. L.T.R. 185.
[379]
[1953] SLT 54.
[380]
Freckelton, Reddy & Selby “Australian Judicial Perspectives on Expert
Evidence; an Empirical Study” (Australian Institute of Judicial Administration,
1999) at Question 3.7.
[381]
Lord Woolf Access to Justice,
Final Report, HMSO (1996) Ch. 13.8.
[382] [1993] 3 I.R.
421.
[383]
[1993] 3 I.R. 421 at 462.
[384]
Hand “Historical and Practical
Considerations Regarding Expert Testimony” (1901) 15 Harvard LR 40 at 54-55.
[385]
O’Sullivan ‘A Hot Tub for Expert
Witnesses’ [2004] 4 Judicial Studies Institute Journal 1. In this article, he
recommends adopting the Australian Competition Tribunal model which consists of
a panel, or ‘hot tub’ of opposing experts who debate the issue amongst
themselves without initial intervention from lawyers.
[386]
Kenny “The Expert in Court” (1983)
99 LQR 197 at 208.
[387]
[1975] 1 QB 834 CA.
[388]
[1975] 1 QB 834 CA at 842-3.
[389]
[1992] I.L.R.M. 481.
[390]
Per O’Flaherty J, in The People (
DPP) v Kehoe [1992] I.L.R.M. 481.
[392]
Special Criminal Court, 23 January
2002.
[393]
(1953) SLT 54.
[394]
See for example L(P) v DPP [2002] IEHC
25 (16th April, 2002); The People (DPP) v Murphy [2005] IECCA
52 (5 May 2005).
[395]
[1991] ILRM 79.
[396]
[1992] 2 IR 11.
[397]
[1992] 2 IR 11 at 21.
[398]
[2000] IEHC 11 (28th January, 2000).
[399]
[2000] IEHC
112 (28th March, 2000).
[400]
[2000] IEHC 11 (28th January, 2000) at 20.
[401]
(1996) PIQR 36.
[402]
Heffernan Scientific Evidence,
Fingerprints and DNA (Firstlaw).
[403]
Heffernan “Gauging the Reliability
of Expert Witnesses” (2006) 6 JSIJ 140 at 150.
[404]
The term ‘junk science’ was first
coined in the renowned work by Huber Galileo’s Revenge: Junk Science in the
Courtroom (Basic Books 1991).
[405]
Special Criminal Court, January 23,
2002.
[406]
Supreme Court, 5 July 2001.
[407]
See Law Reform Commission Consultation
Paper on The Establishment of a DNA Database LRC CP 29-2004 at 9.01-9.50.
[408]
Central Criminal Court 2 December
2005 – See Law Reform Commission Consultation Paper on The Establishment of
a DNA Database LRC CP 29-2004 at 9.04.
[409]
Irish Examiner 25 June 2002.
[410]
Irish Times 15 October 2003,
Central Criminal Court (Butler J).
[411]
[2003] 4 I.R. 295
[412]
[2003] 4 I.R. 295 at 4.
[413]
(1923) 54 App. D. C. 46, 293 F.
1013.
[414]
Frye v United States (1923)
54 App. D. C. 46, 293 F. 1013 at 1014.
[415]
Imwinkelried, “’Junk Science’ in the
Courtroom: Will the Changes in the American Law of Expert Testimony Influence
the Irish Courts?” (2004) 26 Dublin University Law Journal 83.
[416]
509 U.S. 579; 113 S. Ct. 2786
[1993].
[417]
Federal Rule 702 provides; “If
scientific, technical or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training or education,
may testify thereto in the form of an opinion or otherwise.”
[418]
509 U.S. 579; 113 S. Ct. 2786 [1993]
at 593-594.
[419]
Imwinkelried “’Junk Science’ in the
Courtroom: Will the Changes in the American Law of Expert Testimony Influence
the Irish Courts?” (2004) 26 Dublin University Law Journal 83.
[420]
Bernstein “Junk Science in the
United States and the Commonwealth” (1996) 21 Yale Jn’l Intn’l L. 123 at 136.
[421]
As per Blackmun J in Daubert v
Merrell Dow Pharmaceuticals, Inc 509 U.S. 579; 113 S. Ct. 2786 (1993) fn.
11 “Although the Frye decision itself focused
exclusively on "novel" scientific techniques, we do not read the
requirements of Rule 702 to apply specially or exclusively to unconventional
evidence. Of course, well established propositions are less likely to be
challenged than those that are novel, and they are more handily defended.”
[422] Imwinkelried
“’Junk Science’ in the Courtroom: Will the Changes in the American Law of
Expert Testimony Influence the Irish Courts?” (2004) 26 Dublin University
Law Journal 83.
[423]
Bernstein “Junk Science in the
United States and the Commonwealth” (1996) 21 Yale Jn’l Intn’l L. 123.
[424]
522 US 136 (1997).
[425]
Rehnquist J in General Electric
Co. v Joiner 522 US 136 (1997).
[426]
526 U.S. 137 (1999).
[427]
Breyer J in Kumho Tyre Co v
Carmichael 526 U.S. 137 (1999).
[428] Per Beyer J Kumho
Tyre Co v Carmichael 526 U.S. 137 (1999).
[429]
See Imwinkelried, “’Junk Science’ in
the Courtroom: Will the Changes in the American Law of Expert Testimony
Influence the Irish Courts?” (2004) 26 Dublin University Law Journal 83
for examples for studies conducted in the 1980’s and 1990’s revealing vast
discrepancies in evidence adduced in court.
[430]
For extensive discussion on US
developments in the context of reliability in expert testimony see, inter alia:
Imwinkelried, “’Junk Science’ in the Courtroom: Will the Changes in the
American Law of Expert Testimony Influence the Irish Courts?” (2004) 26 Dublin
University Law Journal 83; Bernstein “Junk Science in the United States and
the Commonwealth” (1996) 21 Yale Jn’l Intn’l L. 123; Faigman & Ors “Check
Your Crystal Ball at the Courthouse Door Please: Exploring the Past,
Understanding the Present and Worrying about the Future of Scientific Evidence”
(1994) 15 Cardoza LR 1799; Koutchoukos “Solomon meets Galileo (And Isn’t Quite
Sure What to Do With Him)” (1994) 15 Cardoza LR 2237; Imwinkelried “The Next
Step After Daubert: Developing a Similarly Epistemological to Ensuring the
Reliability of Non-Scientific Expert Testimony” (1994) 15 Cardoza LR 2271;
Bernstein “Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the
Daubert Revolution” (2007) George Mason Law & Economics Research Paper
No. 07-11 Available at SSRN: http://ssrn.com/abstract=963461.
[431]
Australian Law Reform Commission Review
of the Evidence Act 1995, IP 28 (2004) at 6.13.
[432]
Section 79 Evidence Act 1995.
[433]
Australian Law Reform Commission Review
of the Evidence Act 1995, IP 28 (2004) at 6.20.
[434]
(1999) 197 CLR 414, [58].
[435]
(1999) 197 CLR 414, [58].
[436]
(2002) H.C.A. 4 (14 February
2002).
[437]
(1999) 197 CLR 414, [58].
[438] (2002) H.C.A. 4
(14 February 2002) at 154.
[439]
(2002) H.C.A. 4 (14 February 2002)
at 158.
[440]
Odgers Uniform Evidence Law (6th
ed, 2004) at 1.3.4260 Cited in: Australian Law Reform Commission, Review of
the Evidence Act 1995, IP 28 (2004) at para 6.47; ALRC Report 102; NSWLRC
Report 112; VLRC Final Report; “Uniform Evidence Law” (December 2005) at 9.37.
[441]
[1984] 38 SASR.
[442]
R v
Bonython (1984) 38 SASR at 45.
[443]
(1994) 75 A Crim R 522.
[444]
(1994) 75 A Crim R 522 at 535.
[445]
ALRC Report 102; NSWLRC Report 112;
VLRC Final Report; “Uniform Evidence Law” (December 2005).
[446]
ALRC, NSWLRC, VLRC “Uniform Evidence
Law – Report 102” (December 2005) at Ch. 9.31-9.38.
[447]
Australian Law Reform Commission, Review
of the Evidence Act 1995, IP 28 (2004) at para 6.24.
[448]
United Bank of Kuwait v
Prudential Property Services (1995) Court of Appeal 27th November 1995 at
4.
[449]
Per Butler-Sloss LJ Re M and R
(Minors) [1996] 4 All ER at 239.
[450]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 3-001.
[451]
[2005]
EWCA Crim 1980 (21 July 2005).
[452]
[2005]
EWCA Crim 1980 (21 July 2005) at [270] In R v Clarke (1995) 2
Cr.App.R. at 425, 429 the Court of Appeal stated: “It is essential that
our criminal justice system should taken into account modern methods of crime
detection…There are no closed categories where such evidence may be placed
before a jury. It would be entirely wrong to deny the law of evidence the
advantages to be gained from new techniques and new advances in science.”
(Cited in Hodgkinson & James Expert Evidence: Law and Practice (2nd ed Sweet & Maxwell 2007) at
3-001).
[453]
(1991) 93 Cr.App.R. 161.
[454]
See also Lord Russell’s comments in R
v Silverlock [1894] 2 Q.B. 766 at 771.
[455]
(1993) 97 Cr App 260.
[456]
(1993) 97 Cr App 260 at 264.
[457]
(2001) 2 Cr. App. R. 5.
[458]
(2001) 2 Cr. App. R. 5 at 25.
[459]
(1994) 99
Cr. App. 326.
[460]
54 App. D. C. 46, 293 F. 1013.
[461]
(2001) 2 Cr. App. R. 5 at 25.
[463]
54 App. D. C. 46, 293 F. 1013.
[464]
509 U.S. 579; 113 S. Ct. 2786
[1993].
[465]
Tapper Cross and Tapper on
Evidence (9th ed Butterworths 1999) at 523; cited in R v
Dallagher [2002] EWCA Crim 1903.
[469]
[2004]
EWCA Crim 1344 at 34.
[470]
[1984] 38 SASR.
[471]
[1984] 38 SASR.
[472]
Per King CJ R v Bonython [1984]
38 SASR at 46.
[473]
[2001]
EWHC Ch 17 (9 February 2001).
[474]
[1984] 38 SASR.
[475]
[2001] EWHC
Ch 17 (9 February 2001) at [38].
[476]
[2002]
EWCA Crim 1903 Hodgkinson and James cite other civil and criminal cases
where a ‘general acceptance’ test appears to have been applied; See the
comments of; Mance J in “The Ardent” [1997] 2 Lloyds's Law Reports
at547; Evans-Lombe J in Barings Cooper v Lybrand (No. 1) [2001]
EWHC Ch 17 (9th February, 2001); See also R v Hodges [2003] EWCA
Crim 290 and R v O’Doherty [2003] 1 Cr.App.R. 77 (Hodgkinson & James
Expert Evidence: Law and Practice (2nd ed Sweet & Maxwell 2007) at
3-0016 fn. 34).
[477]
R v Robb (1991) 93 Cr.App.R.
161.
[478]
R v Stockwell (1993) 97 Cr
App 260.
[479]
R v Kempster [2003]
EWCA Crim 3555.
[480]
R v Adams and Doheny (1997) 1
Crim App R 369; People (DPP) v Allen [2003] 4 I.R. 295.
[481]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 3-006.
[482]
[1984] 38 SASR.
[483]
Imwinkelried, “’Junk Science’ in the
Courtroom: Will the Changes in the American Law of Expert Testimony Influence
the Irish Courts?” (2004) 26 Dublin University Law Journal 83.
[484]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 1-020.
[485]
Heffernan “Gauging the Reliability
of Expert Witnesses” (2006) 6 JSIJ 140 at 147.
[486]
As per Rose J in R v Luttrell [2004]
EWCA Crim 1344; Davie v Edinburgh Magistrates (1953) SLT 54.
[487]
Heffernan “Gauging the Reliability
of Expert Witnesses” (2006) 6 JSIJ 140 at 168.
[488]
ALRC Report 102; NSWLRC Report 112;
VLRC Final Report; “Uniform Evidence Law” (December 2005) at 9.38.
[489]
See, for example the prosecutor’s
fallacy cases involving DNA such as R v Doheny & Adams [1997]
1 Cr.App.R. 369, CA and Pringle v The Queen [2003] UKPC 9;
The Birmingham 6 case R v McIlkenney (1991) 93 Cr.App.R. 287.
[490]
See, for example, the one in
73,000,000 statistic in R v Clarke (Sally) [2003]
EWCA Crim 1020.
[491]
R v Clarke (Sally) [2003]
EWCA Crim 1020 (microbiology report); R v Ward (Judith) [1993] 1 WLR
619; R v Maguire (1992) 94 Cr.App.R. 133, CA and see also, Sir
John May’s Report into the cases of the Maguire 7.
[492]
R v Ward (Judith) ibid.; R
v Maguire ibid.; and see also, Sir John May’s Report into the cases of the
Maguire 7.
[493]
Hodgkinson and James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 3-006.
[494]
The term ‘junk science’ was first
coined in Huber Galileo’s Revenge: Junk Science in the Courtroom (Basic
Books 1991). The term ‘junk science,’ refers to the abuse of science and
scientific terminology in the courtroom setting by importing irrelevant or
accurate evidence to advance a party’s arguments.
[495]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 1-021.
[496]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 1-021 – 1-022.
[497]
However, it should be noted that the
Bonython test also requires the evidence to be “sufficiently organised
or recognised to be accepted as reliable” which requires examining the
substantive nature of the evidence as well as assessing the degree of support
it has received from experts in the field.
[498]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 3-006.
[499]
Koukoutchos “Solomon Meets Galileo
(And Isn’t Quite Sure What to Do With Him)” (1994) 15 Cardozo Law Review 2237; McMullen “Expert Witnesses: Who
Plays the Saxophones?” (1999) Journal of Judicial Administration.
[500]
The article was entitled; “Transgressing the boundaries: Towards a
transformative hernemuetics of quantum gravity” in the American Culture Studies
Journal Social Text. McMullan explains that the authors aim appears to have
been to poke fun at certain learned authors (McMullen “Expert Witnesses: Who
Plays the Saxophones?” (1999) Journal of Judicial Administration.
[501]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 3-006.
[502]
See for example Kenny “The Expert in
Court” (1983) 99 LQR 197 at 205-206; Moles “The Role and Function of the Expert
Witness” Available at: http://netk.net.au/Reports/ExpertWitness.asp;
Imwinkelried “’Junk Science’ in the Courtroom: Will the Changes in the American
Law of Expert Testimony Influence the Irish Courts?” (2004) 26 Dublin
University Law Journal 83.
[503]
An example of this is R v Pitchfork (January 23 1988) the first
publicised use of DNA evidence in England. Although the reliability of DNA
evidence had been repeatedly proven, the accused here initially escaped charges
as he had substituted another person’s blood sample for testing in place of his
own. (See Law Reform Commission Consultation Paper on The Establishment of a
DNA Database LRC CP 29-2004 at 2.04).
[504]
Imwinkelried “The Next Step after Daubert: Developing A Similarly
Epistemological Approach to Ensuring The Reliability of Non-Scientific Expert
Testimony” (1994) 15 Cardozo LR 2271.
[505]
526 U.S. 137 (1999).
[506]
[2004]
EWCA Crim 1344 (28 May 2004).
[507]
(1867) Exchequer IR ICL
211.
[508]
(1867) Exchequer IR ICL
211 at 217.
[509]
(1960) 94 I. L.T.R. 185.
[510]
(1960) 94 I. L.T.R. 185 at 186.
[511]
Unreported, Special
Criminal Court, January 23, 2002.
[513]
[2000] IESC
78 at 85.
[514]
Freckelton, Reddy & Selby “Australian Judicial Perspectives on
Expert Evidence; an Empirical Study” (Australian Institute of Judicial
Administration, 1999) at 15.
[515]
Federal Court Rules -
Statutory Rules 1979 No. 140 as amended made under the Federal Court of
Australia Act 1976 Order 34A r 2.
[516]
Family Law Rules 2004 (Cth)
r 15.43.
[517]
See Uniform Civil Procedure
Rules 2005 (NSW).
[518]
Uniform Civil Procedure
Rules 2005 (NSW) r. 35.18.
[519]
Uniform Civil Procedure
Rules 1999 (Qld) r 425.
[520]
Court Procedure Rules 2006 (ACT)
r. 1201.
[521]
Court Procedure Rules 2006 (ACT)
r. 1201.
[522]
[1894] 2 QB 766.
[523]
[1894] 2 QB 766.
[524]
Civil Procedure Rule 35.2.
[525]
Criminal Procedure Rule 33.1.
[526]
AG ( Ruddy) v Kenny
(1960) 94 I.L.T.R. 185 at 190.
[527]
Unreported 15 March 2001.
[528]
Unreported, Special Criminal
Court, January 23, 2002.
[529]
[1894] 2 QB 766.
[530]
[1894] 2 QB 766.
[531]
See chapter two for a
discussion on the range of subject areas which the courts consider to be a
field of specialised knowledge and outside the range of knowledge of the finder
of fact.
[532]
(1766) 3 Burr 1905.
[533]
(1960) 103 C.L.R. 486.
[534]
(1960) 103 C.L.R. 486 at 491.
[535]
(1960) 103 C.I.R. 486 at 491.
[536]
[2006] Crim. L.R. 183.
[537]
R v Oakley [1979]
R.T.R. 417.
[538]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 1-030.
[539]
Bernstein
“Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert
Revolution” (February 2007). George Mason Law & Economics Research Paper
No. 07-11 Available at SSRN: http://ssrn.com/abstract=963461, at 29.
[540]
See for example DC v DPP [2005] IEHC
431 where Quirke J placed considerable emphasis on the expert witness’s
academic qualifications and professional experience: “Mr. Gilligan has
testified on oath as to his qualifications. They included B.A. and M.A. degrees
and a B.C.S. Diploma in clinical psychology. He has averred in evidence that he
worked for many years as a clinical psychologist and retains a practice as a
working clinical psychologist.” Quirke J concluded: “[T]here is, accordingly,
no reason why this court should doubt his professional competence, his
qualifications or his professional capacity to adduce independent expert
testimony for the benefit of this court.”
[541]
Heald “A Judge’s Analysis”
(1996) NLJ 1723 at 1724.
[542]
[1998] EWCA Civ 310 (20
February 1998).
[543]
Hawkes v London Borough of
Southwark [1998] EWCA Civ 310 (20 February 1998).
[544]
Hawkes v London Borough of
Southwark [1998] EWCA Civ 310 (20 February 1998).
[545]
R v Marquard, 1993
CanLII 37 (S.C.C.).
[546]
Healy Irish Laws of
Evidence (2004 Thomson Roundhall) at 361.
[547]
Martin v Quinn [1980]
I.R. 244; Minister for Agriculture v Concannon, High Court, 14 April
1980; DPP v O'Donoghue [1991] 1 I.R. 448. Cited in McGrath Evidence
(Thomson Roundhall 2005) at 318.
[548]
See the comments of Hardiman J in JF
v DPP [2005]
IESC 24 (26 April 2005), quoted at paragraph 3.123, below.
[549]
The Times, 24 February 1931.
[550]
O’Flaherty “The Expert Witness
and the Courts” (1997) 3 MLJI 3 at 6 See also Normanton (ed) The Trial of
A.A. Rouse (1931, William Hodge and Company).
[551]
See O’Boyle “Leave it to the
Experts” (1998) 92 (9) Law Society of Ireland Gazette 20 at 22.
[553]
Civil Justice Council
“Protocol for the Instruction of Experts to Give Evidence in Civil Claims”
(June 2005).
[554]
Civil Justice Council
“Protocol for the Instruction of Experts to Give Evidence in Civil Claims”
(June 2005) at 7.1.
[555]
Herbert J in Sheeran v
Meehan High Court, 6 February 2003.
[557]
[1986] 2 All ER 911.
[558] [2000] IESC
78 at 85.
[559]
See also R v Gokal
[1999] EWCA Crim 669 (11 March 1999) where one of the grounds of appeal against
a conviction for conspiracy to defraud was that two of the expert witnesses
proffered should not have been entitled to give evidence on the grounds that
they were not independent as their company was at the time of the case involved
in a negligence action against one of the parties to the case. The judge held
that the expert’s were properly entitled to give evidence as the trial judge
had clearly pointed out the factors that might affect the reliability of the
expert’s evidence and the extent of independence could go only to weight not
admissibility.
[560]
[1999]
EWCA Civ 3013 (8 December 1999).
[561]
Per Waller LJ at [27] [1999]
EWCA Civ 3013 (8 December 1999).
[562]
Per May LJ at [31] [1999]
EWCA Civ 3013 (8 December 1999).
[563]
[2001]
EWHC Ch 396 (6 July 2001).
[564]
[2001]
EWHC Ch 396 (6 July 2001) at [12].
[565]
[2001]
EWHC Ch 396 (6 July 2001) at [13].
[566]
[2002]
EWCA Civ 932 (3 July 2002).
[567]
[2002]
EWCA Civ 932 (3 July 2002) at [70].
[568]
Per Phillips MR at [70] [2002]
EWCA Civ 932 (3 July 2002).
[569]
[2003] EWHC 367.
[570]
[2003] EWHC 367 at [65].
[571]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at para. 10-015.
[572]
Head “A Judge’s Analysis”
(1996) NLJ 1723.
[573]
Special Criminal Court, 23
January 2002.
[574]
(1953) SLT 54.
[575]
(1953) SC 34 at 40.
[576]
Barr “Expert Evidence - A Few
Personal Observations and the Implications of Recent Statutory Development”
(1999) 4 (4) BR 185.
[577]
[1993] 2 Lloyd’s Rep 68.
[578]
[1993] 2 Lloyd's Rep 68, at
81-82.
[579]
Per Lord President Cooper in Davie
v Edinburgh Magistrates [1953] SLT 54.
[580]
Per Garland J Polivitte
Ltd. v. Commercial Union Assurance Co. Plc. [1987] 1 Lloyd's Rep. 379 at p.
386; Cazalet J in Re J, [1990] F.C.R. 193.
[581]
(1844) 7 Irish L. Rep 261.
[582]
(1844) 7 Irish L. Rep 261 at
[321]; This decision was cited in approval in Rondel v Worsley [1967] 1
QB 443.
[583]
O’Flaherty “The Expert Witness
and the Courts” (1997) 3 MLJI 3.
[584]
Edmond “Edmond “After
Objectivity: Expert Evidence and Procedural Reform” (2003) Syd L Rev 8.
[585]
Edmond “Edmond “After
Objectivity: Expert Evidence and Procedural Reform” (2003) Syd L Rev 8.
[586]
Edmond “Edmond “After
Objectivity: Expert Evidence and Procedural Reform” (2003) Syd L Rev 8.
[587]
As per Heydon J in Makita
(Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001), a
prime duty of expert witnesses in giving opinion evidence is “to furnish the
trier of fact with criteria enabling evaluation of the validity of the expert's
conclusions.” In this case, the NSW Court of Appeal rejected the expert’s
opinion as he had failed to properly explain how he had reached his
conclusions, and failed to outline the facts and assumptions underlying his
conclusions.
[588]
Head LJ states that in giving
evidence, an appropriate checklist for an expert should be: “1. What truly are
the allegations which concern me; do they define what I see as the true
issue(s)? 2. Have I studied all the witness statements and disclosed documents
to ascertain the facts 3. Have I made all appropriate factual observations of
bodies, places, machines, buildings, accounts etc? 4. Have I specified for
myself the assumptions that I shall rely on so clearly that, if challenged, I
can detail them and identify all my sources? 5. Have I prepared by report in
simple, intelligible English, using as few technical words as I can, explaining
those that necessarily remain? 6. What, if any, do I see as the points of
challenge to my observations, assumptions, and conclusions; and what, if any,
are the answers to them? 7. Since the expert is not an advocate but must inform
the mind of the court fully not partially, have I improperly omitted anything
relevant?” See Head LJ “A Judge’s Analysis” (1996) NLJ 1723.
[589]
High Court, 5 December 1997.
[590]
[2003] 4 I.R. 295.
[591]
[2003] 4 I.R. 295 at 299.
[592]
[2003] 4 I.R. 295 at 299.
[593]
Special Criminal Court, 23
January 2002.
[594]
(1953) SLT
54.
[597]
R v Clark [2000]
EWCA Crim 54 (2nd October, 2000).
[598]
See Dwyer “Case Note – The
Duties of Expert Witnesses of Fact and Opinion; R v Clark (Sally)”
(2003) 7 International Journal of Evidence and Proof 264.
[599]
Civil Justice Council
“Protocol for the Instruction of Experts to Give Evidence in Civil Claims”
(June 2005) at 4.3.
[600]
Head “A Judge’s Analysis”
(1996) NLJ 1723.
[601]
Number 20 of 2003.
[602]
[2006]
EWCA Civ 1028 at [106].
[603]
[2006] IESC 5
(9 February 2006).
[604]
[2005] IESC
24 (26 April 2005).
[605]
[2005] IESC
24 (26 April 2005).
[606]
Per Lord Wilberforce Whitehouse v
Jordan [1981]
1 W.L.R. 246 at p. 256.
[608]
[1928] 1 Ch 31.
[609]
[1998]
EWCA Civ 1176 (8 July 1998).
[610]
The Expert Witness Directory of
Ireland “Code of Conduct; Expert Witnesses Engaged by Solicitors” Available at;
http://www.expertwitnessireland.info/.
[612] As Murphy J
stated: “The fact that an engineer is employed by one or other of the parties
may affect his independence with a consequent reduction in the weight to be
attached to his evidence but it could not deprive him of his status as an
expert.” [2000]
IESC 78 at 85.
[613]
[2006]
EWCA Civ 1028 (19 July 2006).
[614]
[2006]
EWCA Civ 1028 (19 July 2006) at [77].
[615]
National Justice Compania Naviera
SA v Prudential Assurance Co Ltd (The Ikerian Reefer) [1993] 2
Lloyd’s Rep 68.
[616]
[2006]
EWCA Civ 1028 (19 July 2006) at [102].
[617]
[2006]
EWCA Civ 1028 (19 July 2006) at [108].
[618]
[2006]
EWCA Civ 1028 (19 July 2006) at [111].
[619]
[2006]
EWCA Civ 1028 (19 July 2006) at [111] He also pointed out that the court
may take a different view to the party as to the existence of a material
conflict of interest which might lead the court to reject the expert’s evidence
and cited Liverpool Roman Catholic Archdeacon Trustees Inc v Goldberg No 2 [2002] 1 WLR 237 in support of this.
[620]
See, for example, Rule 1 – 2) CNCEJ
“Regles de Deontologie de L’Expert Judiciaire” Available at;
http://www.fncej.org/.
[622]
R v Clark (Sally) [2003]
EWCA Crim 1020 at [178].
[623]
Professor Meadow came to the figure of one
in 73 million by squaring the statistical chance of one child dying from SID
under certain factors as set out in the report (1:8543), by itself
(1:8543x8543), thus assuming that the two events were to be considered as independent
of each other, without taking account of conditions specific to the Clark
family. However, as explained by Collins J in the later case of General
Medical Council v Meadow [2006] EWHC 146 (Admin) (17 February 2006)
“As will be obvious, [Dr. Meadow’s evidence] was based on the extract from the
CESDI study which I have already cited. It was a statement based on a
misunderstanding of the significance of the squaring. The squaring was not
intended to be a guide to the risk of recurrence. The figures given were
estimates based on a mathematical modelling and were not observed rates. Since
independence could not be assumed, the squaring was a statistically invalid
assumption and was intended to do no more than show that it produced in truth
an underestimate of the real risk. I am bound to say, having read Professor
Fleming's evidence (he was a witness before the FPP), I am far from clear why
the squaring exercise was included at all.” (at [37]).
[624]
General Medical Council v Meadow
[2006]
EWCA Civ 1390 (26 October 2006) at [83].
[625]
Euroexpert “Code of Practice”
Available at: http://www.euroexpert.de/en/Code-of-practice/341.
[626]
[1999] EWCA Civ 1452 (20 May 1999).
[627]
Re N [1999] EWCA Civ 1452 (20
May 1999) at [9].
[628]
Stuart-Smith LJ stated in Re N [1999]
EWCA Civ 1452 (20 May 1999) at [17]: “Mr Nicol also submitted that there was no
potential conflict between the duties owed by the Defendant to the police or
CPS and that to the Plaintiff, to attend court to give evidence. That may be
so, if one restricts the ambit of the duty to that sole obligation. I have
already indicated that in my view it is not permissible to do so. It is quite
apparent that the defendant’s duty to the police, CPS and indeed the Court in
giving evidence may be entirely in conflict with a complainant’s interests.
Hence the need for the immunity”.
[629]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
19.1.
[630]
NSW Law Reform Commission “Report
109 – Expert Witnesses” (June 2005) at 9.17.
[631]
[2002] NSWSC 980.
[632]
These rules have now been replaced
by the Uniform Civil Procedure Rules 2005. This, however, carries the Code of
Conduct over into law, and UCPR rule 31.23 provides that an expert’s report
cannot be given in evidence, nor can an expert give oral evidence until the
court is satisfied that the expert has read the code of conduct set out in
Schedule 7 of the UCPR and has agreed to be bound by it.
[633]
Commonwealth Development Bank of
Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [9].
[634]
[2006]
EWCA Civ 1028, [2006] All ER (D) 271 (Jul).
[635]
Toth v Jarman [2006] EWCA Civ 1028, [2006] All ER (D) 271
(Jul) at [199].
[636]
See: Lord Woolf, Access to
Justice (Interim Report, HMSO, London, 1995) and Lord Woolf, Access to
Justice (Final Report, HMSO, London, 1996).
[637]
Lord Woolf, Access to Justice
(Interim Report, HMSO, London, 1995) at Ch. 23.1.
[638]
In Vinos v Marks & Spencers
plc [2001] 3 All ER 784 May LJ stated: “The Civil Procedure Rules are a new
procedural code, and the question for this court in this case concerns the
interpretation and application of the relevant provisions of the new procedural
code as they stand untrammelled by the weight of authority that accumulated
under the former Rules.” See also the comments of Lord Woolf in Biguzzi v
Rank Leisure Plc [1999] 1 WLR 1926: “The whole purpose of
making the CPR a self-contained code was to send the message which now
generally applies. Earlier authorities are no longer generally of any relevance
once the CPR applies.”
[639]
See for example Garratt v Saxby
[2004] EWCA 341 at 18: “Although it has been said on a number of occasions that
decisions on pre-CPR procedural rules are not binding for the purpose of
interpreting the CPR, there are circumstances in which they may be of
considerable persuasive force.”
[640]
See CPR r.1.1.
[641]
CPR r.35.1; CPR r. 35.4.
[642]
Lord Woolf Access to Justice (Final
Report, HMSO 1996) Ch. 13.12.
[643]
Civil Procedure Rules “Practice
Direction to supplement CPR Part 35 Experts and Assessors” at 1.1.
[644]
Civil Procedure Rules “Practice
Direction to supplement CPR Part 35 Experts and Assessors” at 1.2-3.
[645]
[2001] 2 C.P.L.R. at 24.
[646]
Civil Procedure Rules “Practice
Direction to supplement CPR Part 35 Experts and Assessors” at 1.4.
[647]
Civil Procedure Rules “Practice
Direction to supplement CPR Part 35 Experts and Assessors” at 1.5.
[648]
Civil Procedure Rules “Practice
Direction to supplement CPR Part 35 Experts and Assessors” at 1.6.
[649]
CPR r. 35.5.
[650]
CPR r. 35.10.
[651]
Civil Procedure Rules “Practice
Direction to supplement CPR Part 35 Experts and Assessors” at 2.4 states “The
form of the state of truth is as follows: I confirm that insofar as the facts
stated in my report are within my own knowledge I have made clear which they
are and I believe them to be true, and that the opinions I have expressed
represent my true and complete professional opinion.”
[652]
CPR r. 35.7 provides that the court
can direct that evidence in a particular case is to be given by a single joint
expert where two or more parties to the case wish to give evidence on a
particular issue. The court is given the power under CPR r. 35.7.3 to decide
how such experts are to be appointed. CPR r. 35.8 sets out the instructions
that can be given by the court prior to the appointment of a single joint
expert.
[653]
CPR r. 36.1 (a) & (b) – The
reason behind this procedure is explained in Civil Justice Council “Protocol
for the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
16 as being designed to facilitate the clarification of opinions and issues
after expert’s reports have been served.
[654]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at 2.1
[655]
See Part 4 “Duties of Experts” in
Civil Justice Council “Protocol for the Instruction of Experts to Give Evidence
in Civil Claims” (June 2005).
[656]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
4.1.
[657]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
4.2.
[658]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
4.3.
[659]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
4.5.
[660]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
4.4.
[661]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
4.6.
[662]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at 17.
[663]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
17.11.
[664]
Civil Justice Council “Protocol for
the Instruction of Experts to Give Evidence in Civil Claims” (June 2005) at
17.14.
[665]
[2000]
EWHC Technology 127 (8th March, 2000)
[666]
[1992] Q.B. 936, CA.
[670]
The English Courts Act 2003
sets out the provisions for the making of Criminal Procedure Rules, the
creation of the Committee and the making of practice which is responsible for
making, updating and reviewing the rules on a regular basis. (see “Explanatory
Memorandum to the Criminal Procedure Rules 2005 (2005 No. 384 L.4))”.
[671]
See Auld A Review of the Criminal
Courts of England and Wales by The Right Honourable Lord Justice Auld
(September 2001) at Ch 2.2.
[672]
Further guidance on the duties
expected of experts witnesses instructed by the prosecution in criminal
investigations can also be found in the Crown Prosecution Service’s Disclosure
Manual Annex K “Experts' evidence and unused material - Guidance Booklet for
Experts” Available at;
http://www.cps.gov.uk/legal/section20/chapter_a_annex_k.html.
[673]
See; http://www.academy-experts.org/
[674]
See; http://www.ewi.org.uk/
[675]
See; EWI & The Academy of
Experts “Code of Practice for Experts” (22 June 2005).
[676]
See for example the RICS Expert
Witness Registration Scheme, a voluntary scheme which sets standards for
chartered surveyors who act as expert witnesses in the UK. See
http://www.rics.org/RICSservices/Findasurveyor/ Findanexpertwitness/. Another
example is the Council for the Registration of Forensic Practitioners, an
independent regulatory body established to improve the standards of forensic
practitioners in the UK. The CRFP’s Code of Conduct sets out the standards to
which a forensic practitioner must adhere in order to be registered with the
body. Interestingly, this Code makes it expressly clear that a forensic
practitioner cannot discriminate on grounds of race, beliefs, gender, language,
sexual orientation, social status, age, lifestyle or political persuasion.
(See; http://www.crfp.org.uk/standards/setting/code/code.htm)
[677]
For example New South Wales,
Tasmania and Norfolk Island have all passed mirror legislation to the Evidence
Act 1995, with other jurisdictions, such as Victoria, in the process of
considering similar moves.
[678]
Section 79 provides: “If a person
has specialised knowledge based on the person’s training, study or experience,
the opinion rule does not apply to evidence of an opinion of that person that
is wholly or substantially based on that knowledge.”
[679]
The Federal Court of Australia
“Guidelines for Expert Witnesses in Proceedings in the Federal Court of
Australia” (Version 5, 6 June 2007) Available at:
http://www.fedcourt.gov.au/how/prac_direction.html, at fn. 2, 5 & 6.
[680]
The predecessor to these rules; the
New South Wales Supreme Court Rules, also provided a Code of Conduct for
experts engaged in providing an expert report or giving expert evidence (Supreme
Court Rules 1970 (NSW) Part 36 rules 13C f.f.
[681]
NSW Law Reform Commission “Report
109 – Expert Witnesses” (June 2005) at 9.15.
[682]
NSW Law Reform Commission “Report
109 – Expert Witnesses” (June 2005) at 9.17.
[683]
Wilson J “The New Expert Witness
Rules” Breakfast Address to Australian Insurance Law Association Brisbane Club
(28 October 2004).
[684]
See Explanatory Statement to the
Court Procedure Rules 2006 SL2006-29 Available at:
http://www.courts.act.gov.au/supreme/content/pdfs/Ct%20Procedures%20Rules%202006%20Explanatory%20Statement.pdf.
[685]
See Professions Australia “Role and
Duties of an Expert Witness in Litigation” (1998) Available at:
http://www.professions.com.au/index.cfm?paraID=61. See also The Australian and
New Zealand Forensic Science Society ‘Code of Ethics” which sets down what is
expected of forensic practitioners in giving evidence, giving results and
providing evidence in court. (see ANZFSS “Code of Ethics” Available at:
http://www.anzfss.org.au/code_of_ethics.htm).
[686]
See; Euroexpert – The Organisation
for European Expert Associations Available at;
http://www.euroexpert.de/en/About-us/338.
[687]
Euroexpert “Code of Practice”
Available at: http://www.euroexpert.de/en/Code-of-practice/341.
[688]
This is recognized by Euroexpert in
the Code itself; “It is recognized that there are different systems of law and
many jurisdictions in Europe, any of which may impose additional duties and
responsibilities which must be complied with by the Expert. (See Euroexpert
“Code of Practice” Available at:
http://www.euroexpert.de/en/Code-of-practice/341).
[689]
Conseil Nationale des Compagnies
d’Experts de Justice “Report: Access to Judicial Expertise in Criminal Matters
Implying More Than One Member State, Especially in Serious Cases and Organised
Crime” (AGIS, June 2007) Available at:
http://www.euroexpert.de/sixcms/media.php/61/Report-En-Anglais.pdf.
[690]
See: http://www.fncej.org/.
[691]
CNCEJ “Regles de Deontologie de
L’Expert Judiciaire” Available at; http://www.fncej.org/.
[692] High Court, 5
December 1997.
[693]
High Court, 5 December, 1997. This
view was approved in JL v DPP [2000] 3 IR 122 where Hardiman J warned
that in such cases the “need for caution and for a very full and impartial
presentation of psychiatric and psychological evidence.”
[694]
High Court, 23 November 2001.
[695]
High Court, 23 November 2001 at 31.
[696]
High Court, 23 November 2001 at 31.
[698]
[2000] IESC 58 at [169].
[699]
High Court, 21 December 2004.
[700]
High Court, 21 December 2004.
[701]
FC v
DPP High Court, 7 March, 2003; TM v DPP
High Court, 20 June 2001; Fitzgerald v DPP High Court, 5 December
1997; and PL v DPP High Court, 16 April 2002.
[702]
On this issue see the comments of
Kearns J in TH v DPP High Court, 22 October 2004.
[703]
O’Flaherty “The Expert Witness and
the Courts” (1997) 3 at 5-7.
[704]
O’Flaherty “The Expert Witness and
the Courts” (1997) 3 at 6.
[705]
See: Expert Witness Directory of
Ireland “Code of Practice: Expert Witnesses Engaged by Solicitors” Available
at: http://www.expertwitnessireland.info/.
[706]
See INTO “Teachers and Court Cases”
Available at:
http://www.into.ie/ROI/LegalAndIndustrialRelations/ParentTeacherRelations/TeachersandCourtCases/#top.
[707]
INTO “Teachers and Court Cases”
Available at:
http://www.into.ie/ROI/LegalAndIndustrialRelations/ParentTeacherRelations/TeachersandCourtCases/#top.
[708]
See Society of Actuaries in Ireland
“Actuarial Standard of Practice EXP1 - The Actuary as Expert Witness” (2006)
Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Expert%20Witness/ASP%20EXP-1%20v1.1.pdf.
[709]
Society of Actuaries in Ireland
“Actuarial Standard of Practice EXP1 - The Actuary as Expert Witness” (2006)
Available at; http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Expert%20Witness/ASP%20EXP-1%20v1.1.pdf,
at 2.1-2.2.
[710]
Society of Actuaries in Ireland “Actuarial
Standard of Practice EXP1 - The Actuary as Expert Witness” (2006) Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Expert%20Witness/ASP%20EXP-1%20v1.1.pdf,
at 3.1.
[711]
Society of Actuaries in Ireland
“Actuarial Standard of Practice EXP1 - The Actuary as Expert Witness” (2006)
Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Expert%20Witness/ASP%20EXP-1%20v1.1.pdf,
at 3.2 -3.3.
[712]
Society of Actuaries in Ireland
“Actuarial Standard of Practice EXP1 - The Actuary as Expert Witness” (2006)
Available at; http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Expert%20Witness/ASP%20EXP-1%20v1.1.pdf,
at 3.2.4-3.2.5.
[713]
Society of Actuaries in Ireland
“Actuarial Standard of Practice EXP1 - The Actuary as Expert Witness” (2006)
Available at; http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Expert%20Witness/ASP%20EXP-1%20v1.1.pd,
at 4.4.2.
[714]
Society of Actuaries in Ireland
“Actuarial Standard of Practice EXP1 - The Actuary as Expert Witness” (2006)
Available at; http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Expert%20Witness/ASP%20EXP-1%20v1.1.pdf,
at 4.4.4.
[715]
[1993] 2 Lloyd’s Rep 68.
[716]
[1993] 2 Lloyd’s Rep 68.
[717]
[1993] 2 Lloyd’s Rep 68.
[718]
For more discussion on
the various forms of adversarial bias, see: Bernstein “Expert Witnesses,
Adversarial Bias, and the (Partial) Failure of the Daubert Revolution”
(February 2007). George Mason Law & Economics Research Paper No. 07-11
Available at SSRN: http://ssrn.com/abstract=963461,
at 4.
[719]
Dwyer “The Causes and
Manifestations of Bias in Civil Expert Evidence” (2007) 26 CJQ 425 at 427
[720]
Dwyer states that
examples of moral opinions affecting the independence of expert evidence are
relatively rare. She cites the Wyoming state family decision Hertzler v
Hertzler (1995) WY 206; 908 P. 2d 946 where the expert appointed by one of
the parties admitted under cross-examination that his religious beliefs
regarding homosexuality affected his opinions in the case. (See American
Psychology Association “Brief of Amici Curiae American Psychology Association
and Wyoming Psychology Association” Available at:
http://www.apa.org/psyclaw/hertzler.pdf; (Dwyer “The Causes and Manifestations
of Bias in Civil Expert Evidence” (2007) 26 CJQ 425 at 427).
[721]
In Toth v Jarman [2006]
EWCA Civ 1028, [2006] All ER (D) 271 (Jul) the appellant argued that the
judgment should be set aside where the expert failed to disclose the potential
conflict of interest due to his membership of a committee associated with the
defence. The court here did not find the expert to be biased but did emphasise
the duty on the expert to disclose any potential conflict of interest at an
early stage in proceedings.
[724]
Healy Irish Laws of
Evidence (2004 Thomson Roundhall).
[725]
[1989] IR 91 (SC).
[726]
Healy refers to a
survey, referred to in Morris v Metriyakool (1981) 309 N.W. 2d 910,
where they were a number of medical practitioners presented with a scenario of
a doctor who grossly negligently removes the wrong kidney from a patient. Only
31% of specialists and 27% of general practitioners said they would be willing
to testify as an expert witness on behalf of the plaintiff patient. (See Healy Irish
Laws of Evidence (2004 Thomson Roundhall) at 366.
[727]
(1951) 37 Cal 2d 465; 234 P.2d
34 Cited in Nockelby & Curreri “100 Years of Conflict; The Past and Future
of Tort Retrenchment” Loyola of Los Angeles Law Review Vol XX:nnn 101 at
140.
[728]
(1951) 37 Cal 2d 465 at
484; 234 P.2d 34 at 46 Cited in Nockelby & Curreri “100 Years of
Conflict; The Past and Future of Tort Retrenchment” Loyola of Los Angeles
Law Review Vol XX:nnn 101 at 140.
[729]
For more on this see Dwyer
“The Causes and Manifestations of Bias in Civil Expert Evidence” (2007) 26 CJQ
425 at 430-433.
[730]
[2005]
UKFSM FSM013 (18 January 2005).
[731]
[2005]
UKFSM FSM013 (18 January 2005) at [60].
[732]
See above at 3.42-3.51.
[734]
As Lord Phillips MR stated in R
(Factortame) v Secretary of State for Transport [2002] EWCA 932 at [70]:
“This passage seems to us to be applying to an expert witness the same test of
apparent bias that would be applicable to the tribunal. We do not believe
that this approach is correct. It would inevitably exclude an employee
from giving expert evidence on behalf of an employer. Expert evidence
comes in many forms and in relation to many different types of issue. It
is always desirable that an expert should have no actual or apparent interest
in the outcome of the proceedings in which he gives evidence, but such
disinterest is not automatically a precondition to the admissibility of his
evidence. Where an expert has an interest of one kind or another in the
outcome of the case, this fact should be made known to the court as soon as
possible. The question of whether the proposed expert should be permitted
to give evidence should then be determined in the course of case management.
In considering that question the Judge will have to weigh the alternative
choices open if the expert’s evidence is excluded, having regard to the
overriding objective of the Civil Procedure Rules.”
[735]
See Slovenko “On a Therapist
Serving as a Witness” (2002) 30 J Am Acad Psychiatric Law 10.
[736]
“Letter to the Editor” (1996)
9 Psychiatry News 4 Cited in: Slovenko “On a Therapist Serving as a
Witness” (2002) 30 J Am Acad Psychiatric Law 10.
[737]
It is noted that an expert can
be compelled to give evidence just as an ordinary witness can, however, in
practice this will rarely occur.
[738]
L.R. 17 Eq. 358, 373 (1873).
[739]
Abinger v Ashton L.R.
17 Eq. 358, 373 (1873).
[740]
[2002] EWCA 932.
[741]
Similarly, in Davis v Stena
Line Ltd [2005] EWHC 420 (QB) the defendant argued
that the claimant’s expert witness should not be permitted to give evidence due
to the fact that he had been hired on a ‘no win no fee’ basis and had thus
carried out his task in circumstances where he had a significant financial
interest in the outcome of the proceedings, a fact that may “nullify his
neutrality.” (at [20]) However, on the evidence Forbes J considered that
neither the expert nor the party involved had understood that contingency fees
were an inappropriate remuneration arrangement for experts, and rejected the
contention that their evidence was lacking in objectivity in any way or was
biased. (at [29]).
[742]
Dwyer “The Causes and
Manifestations of Bias in Civil Expert Evidence” (2007) 26 CJQ 425 at 434.
[743]
[2005]
EWHC 920 (TCC) (09 May 2005).
[744]
Mahendra “Mistakes in Court” (2007)
New Law Journal 462.
[745]
[2005]
EWHC 920 (TCC) (09 May 2005) at [74].
[746]
Bernstein “Expert Witnesses,
Adversarial Bias, and the (Partial) Failure of the Daubert Revolution”
(February 2007). George Mason Law & Economics Research Paper No. 07-11
Available at SSRN: http://ssrn.com/abstract=963461,at 4.
[747]
Dwyer “The Causes and
Manifestations of Bias in Civil Expert Evidence” (2007) 26 CJQ 425 at 438.
[748]
JF v DPP [2005] IESC
24 (26 April 2005).
[749]
L.R. 17 Eq. 358, 373 (1873).
[750]
L.R. 17 Eq. 358, 373 (1873) at
374.
[751]
Bernstein “Expert Witnesses,
Adversarial Bias, and the (Partial) Failure of the Daubert Revolution”
(February 2007). George Mason Law & Economics Research Paper No. 07-11
Available at SSRN: http://ssrn.com/abstract=963461, at 4.
[752]
(1993) 96 Cr App R 1.
[753]
(1993) 96 Cr App R 1 at 51.
[754]
(1993) 96 Cr App R 1.
[755]
R v Ward (1993) 96 Cr
App R 1.
[756]
For more information on the
exact nature of the misleading evidence given by the prosecution forensic
experts in this case see; Schurr “Expert Witnesses and the Duties of Disclosure
and Impartiality: The Lessons of the IRA Cases in England” Paper presented at
the Law, Medicine and Criminal Justice Conference (Surfer’s Paradise, 6-8 July
1993).
[757]
Bernstein “Junk Science in the
United States and the Commonwealth” (1996) 21 Yale Jn’l of Int’l L. 123 at 171;
Stockdale “Running with the Hounds” (1991) 141 NLJ 772.
[758]
The Royal Commission on
Criminal Justice ‘The Role of Forensic Science Evidence in Criminal
Proceedings” (Stationary Office Books, 1993).
[760]
However, it has been argued
that this change is more “nomenclature than substance” and has not improved
defence access to forensic scientists. See; Alldridge “Forensic Science
and Expert Evidence” (1994) 21 Jnl L. & Soc’y 136 at 139; Bernstein “Junk
Science in the United States and the Commonwealth” (1996) 21 Yale Jn’l of Int’l
L. 123 at 172.
[762]
See Law Reform Commission Consultation
Paper on The Establishment of a DNA Database (LRC CP 29-2004) at 8.04-8.23
and Law Reform Commission Report on The Establishment of a DNA Database LRC
(78-2005) at 4.02-4.13.
[763]
See Law Reform Commission Consultation
Paper on The Establishment of a DNA Database LRC CP 29-2004 at 8.06; Law
Reform Commission Report on The Establishment of a DNA Database LRC
78-2005 at 4.06-4.07.
[764]
Barr “Expert Evidence - A Few
Personal Observations and the Implications of Recent Statutory Development”
(1999) 4 (4) BR 185.
[765]
Barr “Expert Evidence - A Few
Personal Observations and the Implications of Recent Statutory Development”
(1999) 4 (4) BR 185.
[766]
Barr “Expert Evidence - A Few
Personal Observations and the Implications of Recent Statutory Development”
(1999) 4 (4) BR 185.
[767]
Barr “Expert Evidence - A Few
Personal Observations and the Implications of Recent Statutory Development”
(1999) 4 (4) BR 185.
[768]
71 So.2d 242 (La. Ct. App.
1954).
[769]
71 So.2d 242 (La. Ct. App.
1954) at 244 Cited in Alldridge “Forensic Science and Expert Evidence” (1994)
21 Jnl L. & Soc’y
[771]
Bernstein “Expert Witnesses,
Adversarial Bias, and the (Partial) Failure of the Daubert Revolution”
(February 2007). George Mason Law & Economics Research Paper No. 07-11
Available at SSRN: http://ssrn.com/abstract=963461, at 6.
[772]
L.R. 17 Eq. 358, 373 (1873).
[773]
(1877) 6 Ch D 415.
[775]
[2006]
EWCA Civ 1028, [2006] All ER (D) 271 (Jul).
[776]
[2005]
UKFSM FSM013 (18 January 2005).
[779]
[2006]
EWCA Civ 1028, [2006] All ER (D) 271 (Jul).
[780]
[2006]
EWCA Civ 1028, [2006] All ER (D) 271 (Jul) at [100].
[781]
[2006]
EWCA Civ 1028, [2006] All ER (D) 271 (Jul) at [102].
[782]
[2006]
EWCA Civ 1028, [2006] All ER (D) 271 (Jul) at [113].
[783]
[2000] IEHC
11 (28th January, 2000).
[784]
Solicitors' Journal of 3rd
February, 1961, Volume 105.
[785]
[1994] IEHC 1;
[1994] 1 ILRM 450 (20th January, 1994).
[786]
Freckelton, Reddy & Selby
Australian Judicial Perspectives on Expert Evidence; an Empirical Study
(Australian Institute of Judicial Administration, 1999).
[787]
These are a summary of the
results of the survey as outlined by Williams “Accreditation and Accountability
of Experts” Paper presented at the Medico-Legal Conference (Gold Coast, 5
August 2000).
[788]
Sperling J in “Expert
Evidence: The Problem of Bias and Other Things” (2000) 4 JR 347.
[789]
(1960) 103 CLR 486.
[790]
Clark v Ryan (1960) 103
CLR 486 at 510.
[791]
(1996) EGCS 23.
[792]
Cited in: McConnell “Strange
Bedfellows in the Witness Box” (1996) NLJ 1746 at 1749.
[793]
Woolf, Access to Justice
(Interim Report to the Lord Chancellor on the civil justice system in England
and Wales, HMSO, London, 1995) Ch. 23 at [5].
[794]
[1995] EWHC
7 (Ch) (06 July 1995).
[795]
Goodall “The Expert Witness:
Partisan with a Conscience” (1990) Journal of the Chartered Institute of
Arbitrators.
[796]
Goodall “The Expert Witness:
Partisan with a Conscience” (1990) Journal of the Chartered Institute of
Arbitrators.
[797]
Per Laddie J Cala Homes
(South) Ltd & Ors v Alfred McAlpine Homes East Ltd [1995] EWHC
7 (Ch) (06 July 1995).
[798]
In the course of his judgment,
Laddie J referred to the fact that Mr. Goodall had been called upon to give
expert evidence in over 120 proceedings in litigation or arbitration. (Cala
Homes (South) Ltd & Ors v Alfred McAlpine Homes East Ltd [1995] EWHC
7 (Ch) (06 July 1995).
[799]
[2001]
EWHC Ch 455 (2nd November, 2001).
[800]
[2001]
EWHC Ch 455 (2nd November, 2001) at [58].
[801]
[2001]
EWHC Ch 455 (2nd November, 2001) at [60].
[802]
[1981] 1 WLR 549.
[803]
[1981] 1 WLR 549 at 556.
[804] See JF v
DPP [2005]
IESC 24 (26 April 2005); McGrory v Electricity Supply Board [2003] IESC
45 (24 July 2003); Law Society of Ireland Litigation Committee
“Medico-Legal Recommendations” (September 2003) Available at:
https://www.lawsociety.ie/newsite/documents/Committees/medicolegal.pdf.
[805]
[2005] IESC
24 (26 April 2005).
[806]
[2005] IESC
24 (26 April 2005).
[807]
[1995] EWHC
7 (Ch) (6 July 1995).
[808]
[1995] EWHC
7 (Ch) (6 July 1995).
[809]
[2006] IESC 5
(9 February 2006).
[810]
[2005] IESC
24 (26 April 2005).
[811]
[2005] IESC
24 (26 April 2005).
[812]
Woolf, MR Lord (1996) Access
to Justice, Final Report, HMSO at ch 13.7.
[813]
Woolf, MR Lord (1996) Access
to Justice, Final Report, HMSO at ch 13.7.
[814]
Tompkins J “The Disconnect
between Scientific and Legal Method” Paper delivered at the Legal Research
Foundation Conference The Role and Use of Expert Witnesses in Trials (7 November
2002).
[815]
Langbein “The German Advantage
in Civil Procedure” (1985) 52 U. Chic. LR 823 at 832.
[817]
R v Clark EWCA Crim 1020 (11
April 2003) at (40).
[818]
Dwyer “The Effective Management of
Bias in Civil Expert Evidence” (2007) 26 CJQ 57.
[819]
See Dwyer “The Effective Management
of Bias in Civil Expert Evidence” (2007) 26 CJQ 57 at 70 for more on this
suggested reform.
[821]
This is also the approach advocated
by Morris J in Morris “Getting Real About Expert Evidence” (2006) Paper
delivered at the Dealing with Expert Witnesses Seminar hosted by the
Victorian Planning and Environmental Law Association (16 November 2006).
[822]
Lord Woolf Access to
Justice, Final Report, HMSO (1996).
[823]
The Irish Examiner, 30 June 2004.
[824]
518 Dáil Debates, col. 164 (18 April 2000).
[825]
165 Seanad Debates, col. 1538 (29 March 2001), per Senator Glennon.
[826]
Howlin “Special Juries: A Solution to the
Expert Witness?” (2004) 12 ISLR 19 at 25-26.
[827]
UK Register of Expert Witnesses “Your Witness Newsletter” (No 49 Sept
2007, JS Publications) at 2.
[828]
See the Commission’s
comments at paragraph 3.66, above, to the effect that the actual qualifications
of an expert are not, in practice, often challenged.
[829]
Balance in the Criminal
Law Review Group Final Report (15 March 2007, Department of Justice, Equality
and Law Reform) Available at:
http://www.justice.ie/en/JELR/Pages/Balance_in_criminal_law_report, at 167.
[830]
Balance in the Criminal
Law Review Group Final Report (15 March 2007, Department of Justice, Equality
and Law Reform) Available at:
http://www.justice.ie/en/JELR/Pages/Balance_in_criminal_law_report, at
173. At the time of writing, the recommendations of the Review Group are
under consideration by Government and the Commission does not therefore propose
to make any specific recommendation on this matter.
[831]
This replaced Order 38 Rule 36
Rules of the Superior Courts 1962 which provided that expert evidence
could be adduced by agreement between the parties or with leave of the court.
[832]
Civil Procedure Rules 35.4.2.
[833]
The 2001 Auld Report also
recommended that the criminal court’s power to control the admission of expert
evidence should be formalised in the new Criminal Procedure Rules and also
recommended that judges and magistrates rigorously apply the newly introduced
test governing their power and duty to admit expert evidence: Auld A Review
of the Criminal Courts of England and Wales by The Right Honourable Lord
Justice Auld (September 2001) at Ch 2.2.
[834]
This includes (a) whether the
party has attempted to agree on the appointment of a single expert witness with
the other party and, if not, why not; (b) the name of the expert witness; (c)
the issue about which the expert witness’s evidence is to be given; (d) the
reason the expert evidence is necessary in relation to that issue; (e) the
field in which the expert witness is expert; (f) the expert witness’s training,
study or experience that qualifies the expert witness as having specialised
knowledge on the issue; and (g) whether there is any previous connection
between the expert witness and the party. (Family Law Rules 2004 (Cth) r
15.52(1)).
[835]
Family Law Rules 2004 (Cth)
r 15.52(2).
[836]
New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 6.8.
[837]
New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 6.8.
[838]
Rule 31.19 Uniform Civil
Procedure Rules 2005 (NSW).
[839]
See the comments of Schieman
LJ in Woodford & Ackroyd v Burgess 1999 Lloyd's (PN) at 231
and Evans-Lombe J in Barings Plc (in liquidation) v Coopers & Lybrand [2001]
EWHC Ch 17 (9th February, 2001) at 20.
[840]
Balance in the Criminal Law
Review Group Final Report (15 March 2007, Department of Justice, Equality and
Law Reform) Available at:
http://www.justice.ie/en/JELR/Pages/Balance_in_criminal_law_report, at 175.
[841]
Balance in the Criminal Law
Review Group Final Report (15 March 2007, Department of Justice, Equality and
Law Reform) Available at:
http://www.justice.ie/en/JELR/Pages/Balance_in_criminal_law_report, at 175.
[842]
See the discussion at paragraph
3.66, above.
[843]
UK Register of Expert
Witnesses “CJC Experts Protocol – It’s Official!” Available at:
http://www.jspubs.com/Experts/library/lib_g4e.cfm.
[844]
Civil Justice Council
“Protocol for the Instruction of Experts to Give Evidence in Civil Claims”
(June 2005) at 7.2.
[845]
Legal Services Commission “The
Use of Experts Consultation Paper: Quality, Price and Procedures in Publicly
Funded Cases” (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_consultation_paper.pdf,
at 10.10 See Annex H for Draft Terms of Appointment.
[846]
Legal Services Commission “The
Use of Experts Consultation Paper: Quality, Price and Procedures in Publicly
Funded Cases” (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_consultation_paper.pdf,
at 10.10 See Annex H for Draft Terms of Appointment.
[847]
Civil Procedure Rule 35.10
(3).
[848]
UK Register of Expert
Witnesses “CJC Experts Protocol – It’s Official!” Available at:
http://www.jspubs.com/Experts/library/lib_g4e.cfm.
[849]
Legal Services Commission “The
Use of Experts Consultation Paper: Quality, Price and Procedures in Publicly
Funded Cases” (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_consultation_paper.pdf,
at 10.10 See Annex H for Draft Terms of Appointment.
[850]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 12-001.
[851]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 12-003.
[852]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 12-003.
[853]
No. 27 of 1994.
[854]
Such agreements can also be
seen as illegal because they effectively amount to the offence of champerty
(Per Lord Denning MR in Wallersteiner v Moir (No. 2) [1975] Q.B. 373 at
393).
[855]
Lord Denning M.R. in Trendtex
Trading Corporation v Credit Suisse [1980] Q.B. 629 at 789.
[856]
[1975] Q.B. 373.
[857]
[1975] Q.B. 373 at 401.
[858]
Field v Liverpool City Council
[1999]
EWCA Civ 3013 (8 December 1999); Liverpool Roman Catholic Archdiocesan
Trustees Inc. v Goldberg (No. 3) [2001] 1 WLR 2337.
[860]
[2002]
EWCA Civ 932 at [73].
[862]
[2005] EWHC 420 (QB) at [28].
[863]
Civil Justice Council
“Protocol for the Instruction of Experts to Give Evidence in Civil Claims”
(June 2005).
[864]
See; EWI & The
Academy of Experts “Code of Practice for Experts” (22 June 2005).
[865]
Williams “Accreditation and
Accountability of Experts” Paper presented at the Medico-Legal Conference (Gold
Coast, 5 August 2000).
[866]
[1928] 1 Ch 31.
[867]
[1928] 1 Ch 31 at 38.
[868]
[2000]
EWHC Technology 127 (8 March 2000).
[869]
As inserted by the Rules
of the Superior Courts (Competition Proceedings) 2005 (SI No. 130 of 2005).
[870]
Order 63B Rule 6(1)(ix), Rules
of the Superior Courts 1986.
[871]
This was inserted the Rules
of the Superior Courts (Commercial Law Proceedings) 2004 (SI No. 2 of
2004).
[872]
Order 63A Rule 6(1)(ix), Rules
of the Superior Courts 1986.
[873]
[1998]
EWCA Civ 1176 (8 July 1998).
[874]
Civil Procedure Rules 35.12.
[875]
Civil Justice Council
“Protocol for the Instruction of Experts to Give Evidence in Civil Claims”
(June 2005).
[876]
[2006] EWHC 2338.
[877]
Civil Procedure Rules 35.14.
[880]
[1971] IR 217.
[883]
This concept was explained by the European Court of Human Rights in Steel
and Morris v United Kingdom (15 February 2005) where the Court stated: “It
is central to the concept of fair trial in civil as in criminal proceedings
that a litigant is not denied the opportunity to present his or her case
effectively before the Court and that he or she is able to enjoy equality of
arms with the opposing side.”
[884]
Edmeades v Thames Board [1969] 2 QB 68; Dunne v British Coal
Corporation [1993] ICR 601; Harmony Shipping Co v Saudi Europe
[1979] 1 WLR 1381.
[885]
[1979] 1 WLR 1380
[886]
Civil Justice Council
“Protocol for the Instruction of Experts to Give Evidence in Civil Claims”
(June 2005) at 12.2.
[887]
The 1998 Rules were made under
section 45(3) of the Courts and Court Officers Act 1995 which provides
that notwithstanding the existence of the rule of privilege for legal advice,
the court may order disclosure of any reports from an expert who is to be
called to give evidence in relation to an issue in question.
[888]
Per Kearns J in Payne v Shovlin [2006] IESC 5
(9 February 2006).
[889]
Order 39, Rule 46 (1) of the 1986 Rules, as inserted by the 1998 Rules.
[890]
The issue of who can be an
expert was also dealt with in the case of Galvin v Murray [2000] IESC
78 where Murphy J made the point that the problem (in defining an
expert) created by the 1998 Rules is serious and may not be easily solved. He
held that where a County Council relied on their own engineers, they should
still be considered as expert witnesses for the purpose of the Rules. However,
he recognised that the report of the Council’s engineers may contain certain
observations that would not be present in an independent engineer’s report
therefore he afforded the respondents the opportunity to argue that certain
parts of the engineer’s report should be deleted before disclosure.
[891]
Order 39, Rule 45 (1)(e) of the 1986 Rules, as inserted by the 1998 Rules.
[892]
[2003] IESC
31 (9 May 2003).
[893]
[2006] IESC 5
(9 February 2006).
[894]
[2006]
IESC 5 (9 February 2006).
[896]
Order 39 Rule 45 (1)(e), Rules of the Superior Courts 1986, as inserted by the
1998 Rules.
[897]
See Carthy “Expert Assistance” (2006) Aug/Sept Law Society of Ireland Gazette
30 at 33.
[898]
[1989] 1 WLR 1189 This decision was later overturned in Derby &
Co. v Weldon (No.9) (The Times, November 9, 1990).
[899]
Carthy “Expert Assistance” (2006) Aug/Sept LSG 30 at 33.
[900]
[2003] IESC
31 (9 May 2003).
[901]
Civil Procedure Rule 35.10(1).
[902]
Civil Procedure Rule 35.10(2)(a)(b).
[903]
Civil Procedure Rule 35.10(3).
[904]
Practice Direction Part 35 2.1.
[905]
Part 13 Civil Justice Council “Protocol for the Instruction of Experts
to Give Evidence in Civil Claims” (June 2005)).
[906]
UK
Register of Expert Witnesses “Factsheet No 27: Expert Reports: Requirements and
Characteristics” Available to members at:
http://www.jspubs.com/Experts/library/lib_fsidx.cfm; Academy of Experts
Available at: http://www.academy-experts.org; Expert Witness Institute “Model
Form of Reports” Available at: http://www.ewi.org.uk/lawandyou/lawandyou.asp.
See also the very detailed and helpful Psychologists
as Expert Witnesses: Guidelines and Procedure for England and Wales (Final Report August 2007). This was a Report commissioned by the Professional
Practice Board (PPB) and Research Board (RB) of the British Psychological
Society. Produced by the British Psychological Society Expert Witnesses Working
Party. Available at
http://www.bps.org.uk/downloadfile.cfm?file_uuid=3393E220-1143-DFD0-7EC1-94B653B296A6&ext=pdf
[907]
These training courses are discussed in greater detail in Chapter 6.
[908]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007.
[909]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007 at 2.1.
[910]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007 at 2.3.
[911]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007 at 2.11.
[912]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007 at 2.2.
[913]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007 at 2.4-2.5
[914]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007 at 2.9
[915]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007 at 2.10
[916]
Federal Court of Australia “Practice Direction: Guidelines for Expert Witnesses
in Proceedings in the Federal Court” Version 5 (Current) 6 June 2007 at 2.6
[917]
Australian Capital Territory Court Procedure Rules 2006 made under the Court
Procedure Act 2004
[918]
Section 423(1) Uniform Civil Procedure Rules 1999 (Qld)
[919]
Civil Procedure Rule 35.1
[920]
Civil Procedure Rule 35.5(1)
[921]
The Civil Procedure Rules divides cases into a number of different categories.
The ‘small claims track’ deals with cases involving a financial value of £5000
or less (CPR 27). Cases with a value between £5000 and £15000 are usually
allocated to the ‘fast track.’ (CPR 28) Claims above £15000 are usually
allocated to the ‘multi-track.’(CPR 29)
[922]
Section 1(1)
[923]
UK Register of Expert Witnesses
“Your Witness Newsletter” (No 49 Sept 2007, JS Publications) at 2
[924]
In 1988 the Commission recommended that the rule against hearsay should be
abolished in civil cases: Report on the Rule Against Hearsay in Civil Cases
(LRC 25-1988). The Commission is currently (December 2008) involved in a new
project on the hearsay rule as part of the Third Programme of Law Reform
2008-2014, project 8.
[925]
As already mentioned, in 1988 the Commission recommended that the rule against
hearsay should be abolished in civil cases: Report on the Rule Against
Hearsay in Civil Cases (LRC 25-1988). The Commission is currently (December
2008) involved in a new project on the hearsay rule as part of the Third
Programme of Law Reform 2008-2014.
[926]
Auld “A Review of the Criminal
Courts of England and Wales by The Right Honourable Lord Justice Auld”
(September 2001) at Para 138
[927]
For a critical discussion of this
provision see D. Holland “Civil Liability & Courts Act 2004: Some Thoughts
on Practicalities” [2006] 6 Judicial Studies Institute Journal 43
[928]
L. Heffernan “Gauging the
Reliability of Expert Witnesses” (2006) 6 JSIJ 140
[929]
Holland “Civil Liability &
Courts Act 2004: Some Thoughts on Practicalities” [2006] 6 JSIJ 43; William
Binchy also outlines a number of criticisms of the Section in Binchy &
Craven Civil Liability & Courts Act 2004: Implications for Personal
Injury Litigation (Firstlaw 2005)
[930]
The heading for this part of the
Rules uses the word ‘assessors,’ although as previously discussed in this
Consultation Paper this has been considered to convey a different meaning to
expert witnesses. However, the Rules go on to call persons subject to the rule
‘experts’ which indicates the intention that they be expert witnesses as
opposed to assessors.
[931]
Dwyer “The Effective Management of
Bias in Civil Expert Evidence” (2007) 26 CJQ 57 at 59; Woolf “Access to
Justice” (Interim Report to the Lord Chancellor on the civil justice system in
England and Wales, HMSO, London, 1995)
[932]
Woolf “Access to Justice” (Interim
Report to the Lord Chancellor on the civil justice system in England and Wales,
HMSO, London, 1995)
[933]
This aim is reflected in the title
of this section, which refers to single ‘joint’ experts, which reiterates that
such experts should be, where possible, jointly appointed by the parties.
[934]
Woolf, MR Lord (1996) Access to
Justice, Final Report, HMSO at [17]
[935]
Civil Procedure Rules r. 35.7
[936]
Civil Procedure Rules r. 35.8
[937]
Auld “A Review of the Criminal
Courts of England and Wales by The Right Honourable Lord Justice Auld”
(September 2001) at Para 139
[938]
UK Register of Expert Witnesses
“Your Witness Newsletter” (No 49 Sept 2007, JS Publications) at 2
[939]
[2000]
EWCA Civ 508 (3 May 2000)
[940]
[2000]
EWCA Civ 508 (3 May 2000) at [24] and [26]
[942]
Auld “A Review of the Criminal
Courts of England and Wales by The Right Honourable Lord Justice Auld”
(September 2001) at Para 140
[943]
Auld “A Review of the Criminal
Courts of England and Wales by The Right Honourable Lord Justice Auld”
(September 2001) at Para 141
[944]
See for example Federal Court Rules
(Cth) Statutory Rules 1979 No. 140 as amended made under the Federal
Court of Australia Act 1976 Order 34A r 2; Uniform Civil Procedure Rules
2005(NSW) r. 31.37, r. 31.46; Uniform Civil Procedure Rules 1999 (Qld) r.
425(1); Family Law Rules 2004 (Cth) r. 15.44
[945]
New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 3.34; Sperling “Expert
Evidence: The Problem of Bias and Other Things” (2000) 4 JR 347
[946]
Freckelton, Reddy & Selby “Australian Judicial Perspectives on
Expert Evidence; an Empirical Study” (Australian Institute of Judicial
Administration, 1999) at 9.13
[947] New South Wales
Law Reform Commission Expert Witnesses (Report 109, 2005) recommendation
8.1
[948]
These provisions were inserted by;
Uniform Civil Procedure Rules (Amendment No 12) 2006. GG No 175 of 8.12.2006, p
10468 Date of commencement, on gazettal.
[949]
The Law Reform Commission of New
South Wales recommended the terminology used for the type of experts envisaged
here be “joint expert witnesses.” They point out that various jurisdictions use
different terminology, for example “single joint expert” in the English CPR
rules (where the idea originated), “single expert” in the Queensland Supreme
Court, and “agreed expert” in the ACT Supreme Court, however, all of these
terms provide for the same type of structure, namely, the appointment of an
expert witness, by joint agreement of the parties, to give expert testimony in
a case. (New South Wales Law Reform Commission Expert Witnesses (Report
109, 2005) at 7.4-7.7)
[950]
Uniform Civil Procedure Rules
2005(NSW) r 31.37(1)
[951]
Uniform Civil Procedure Rules
2005(NSW) r 31.37(2)
[952]
New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 7.7
[953]
New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 7.34
[954]
New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 8.37
[955]
Uniform Civil Procedure Rules
2005(NSW) r 31.52
[956]
New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 3.37
[957]
McClellan “Expert Witnesses: Recent Developments in NSW” Paper delivered at the
Australasian Conference of Planning and Environmental Courts and Tribunals 2006
(16 September 2006)
[958]
McClellan “Expert Evidence – Aces up
Your Sleeve?” Paper presented at the Industrial Relations Commission of New
South Wales Annual Conference 2006 (20 October 2006)
[959]
McClellan “Expert Witnesses – The
Experience of the Land and Environment Court of New South Wales” Speech given
at the XIX Biennial Lawasi Conference (20-24 March 2005 Gold Coast) at
14
[960]
Rule 15.46(a)-(c)
[961]
Rule 15.46 (e)
[962]
For the range of orders the court can make see Rule 15.46
[963]
See inter alia Australian Law
Reform Commission “Adversarial Background Paper 6 Experts” (1999); McClellan
“Expert Witnesses – The Experience of the Land and Environment Court of New
South Wales” Speech given at the XIX Biennial Lawasi Conference (20-24
March 2005 Gold Coast) at 14; Woolf “Access to Justice” (Interim Report to the
Lord Chancellor on the civil justice system in England and Wales, HMSO, London,
1995) and Woolf, MR Lord (1996) Access to Justice, Final Report, HMSO; Sperling
“Expert Evidence: The Problem of Bias and Other Things” (2000) 4 JR 347; Family
Court of Australia “The Changing Face of the Expert Witness” (2002) at 14 Cited
in New South Wales Law Reform Commission Expert Witnesses (Report 109,
2005) at 3.35; Howard “The Neutral Expert: A Plausible Threat to Justice”
(1991) Crim. L.R. 98; New South Wales Law Reform Commission Expert Witnesses
(Report 109, 2005) at 7.14-7.33
[964]
[2005]
IESC 24 (26 April 2005)
[965]
[2005]
IESC 24 (26 April 2005)
[966]
Howard “The Neutral Expert: A
Plausible Threat to Justice” (1991) Crim. L.R. 98 at 101
[967]
Howard “The Neutral Expert: A
Plausible Threat to Justice” (1991) Crim. L.R. 98 at 101
[968]
Howard “The Neutral Expert: A
Plausible Threat to Justice” (1991) Crim. L.R. 98 at 105
[969]
See Heerey “Expert Evidence: The
Australian Experience” (2001) 7 (3) BR 166; O’Sullivan “A Hot Tub for Expert
Witnesses” (2004) 4 JSIJ 1; McInnis “Expert Evidence and the Federal Courts –
Current Developments” Paper presented at Experts and Lawyers: Surviving the
Brave New World Conference (October 2005, Broome, Western Australia)
[970]
O’Sullivan “A Hot Tub for Expert
Witnesses” (2004) 4 JSIJ 1
[971]
Heerey “Expert Evidence: The
Australian Experience” (2002) 7 (3) BR 166
[972]
[2004] ACompT 9 (12 October 2004)
[973]
[2004] ACompT 9 (12 October 2004) at
[216]
[974]
McInnis “Expert Evidence and the
Federal Courts – Current Developments” Paper presented at Experts and
Lawyers: Surviving the Brave New World Conference (October 2005, Broome,
Western Australia)
[975]
Davies “Recent Australian
Developments: A Response to Peter Heerey” [2003] 23 CJQ 396
[976]
Davies “Recent Australian
Developments: A Response to Peter Heerey” [2003] 23 CJQ 400
[977]
McInnis “Expert Evidence and the
Federal Courts – Current Developments” Paper presented at Experts and
Lawyers: Surviving the Brave New World Conference (October 2005, Broome,
Western Australia)
[978]
This court was established in 1993 under the Environment, Resources and
Development Court Act 1993
[979]
Hodgson “The Role of the Expert
Witness – A Court Perspective” Paper delivered to the Planning Education
Foundation Seminar “Evidence, Experts and Experience” (15 October 2004,
Adelaide)
[980]
See “Courts Administration Authority” Available at: http://www.courts.sa.gov.au/courts/environment/index.html.
[981]
18 Dáil Debates, (15 February 1927), Orders of the Day. Juries Bill 1927 –
Second Stage (Cited in Howlin “Special Juries:
A Solution to the Expert Witness?” (2004) 12 ISLR 19 at 41)
[982]
See inter alia Howlin “Special Juries: A
Solution to the Expert Witness?” (2004) 12 ISLR 19; Jones “The Case for Special
Juries in Complex Civil Litigation” (1980) 89 Yale LJ 1155;
[983]
Taylor v Louisiana 419 US 522, 530 (1975) Cited in: Jones “The Case for Special Juries in Complex Civil
Litigation” (1980) 89 Yale LJ 1155 at 1159
[984]
[1976] IR 38
[985]
[1976] IR 38 at 57
[986]
Howlin “Special Juries: A Solution to the
Expert Witness?” (2004) 12 ISLR 19 at 46
[987]
Law Reform Commission “Report on a Fiscal Prosecutor and the Revenue Court”
(LRC 72-2004) at 8.31
[988]
See for example Heerey “Expert Evidence: The Australian Experience”
(2001) 7 (3) BR 166
[990]
Hallett J “Expert
Witnesses in the Courts of England and Wales” (2005) ALJ 288 at 295
[991]
See: “Bogus Doctor
Jailed for 10 Years” BBC News 26 January 2005 Available at:
http://news.bbc.co.uk/2/hi/uk_news/england/london/4209509.stm.
[992]
See; “Fraudulent
Forensic Expert Jailed” BBC News 22 February 2007 Available at:
http://news.bbc.co.uk/2/hi/uk_news/england/manchester/6386069.stm; “‘Bogus’
Psychologist Admits Lying to Police” Manchester Evening News 7 February
2007 Available at;
http://www.manchestereveningnews.co.uk/news/s/235/235509_bogus_psychologist_admits_lying_to_police.html;
Wilson “The Trouble with Experts” The Guardian 25 February 2007
Available at:
http://commentisfree.guardian.co.uk/david_wilson/2007/02/bea_campbell_in_these.html.
[993]
See:
www.witnesstraining.ie (La Touche Bond).
[994]
See www.itsligo.ie.
[995]
See: The Expert
Witness Directory of Ireland (Thomson Roundhall Reuters, published
annually). Another directory to source expert witnesses is available on
http://www.expertwitness.ie.
[996]
Bawdon “A Crowded
Thoroughfare” (1996) New Law Journal 1742
[997]
For example Cardiff
University in conjunction with Bond Solon Witness Training provides an ‘expert
witness certificate’ which requires experts to be independently assessed by
Cardiff University. It is interesting to note that in the first year of this
course, 20% of experts failed, a worrying statistic as many of them had been
giving expert testimony for many years. (Solon “Experts: Amateurs or
Accredited?” (2004) New Law Journal 7117)
[998]
See: “The Expert Witness
Institute” Available at: http://www.ewi.org.uk/.
[999]
See “The Society of Expert
Witnesses” Available at: http://www.sew.org.uk/noidxbar/wel_fs.htm.
[1000]
See: The UK Register of Expert
Witnesses” Available at: http://www.jspubs.com/index.cfm.
[1001]
See “The Academy of Experts”
Available at: http://www.academy-experts.org/.
[1002]
Cooper “More to Learn” (2007)
New Law Journal 459
[1003]
See: “The UK Register of
Expert Witnesses” Available at: http://www.jspubs.com/.
[1004]
See “Council for the
Registration of Forensic Practitioners” Available at; http://www.crfp.org.uk/.
[1005]
Cooper “More to Learn” (2007)
New Law Journal 459; McConnell “Strange Bedfellows in the Witness Box” (1996)
New Law Journal 1746
[1006]
Woolf, MR Lord (1996) Access
to Justice, Final Report, HMSO at ch 13 para 60
[1007]
Auld J “A Review of the
Criminal Courts of England and Wales by The Right Honourable Lord Justice Auld”
(September 2001) at para 131
[1008]
Legal Services Commission “The
Use of Experts Consultation Paper: Quality, Price and Procedures in Publicly
Funded Cases” (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_consultation_paper.pdf,
at 6.14
[1009]
Legal Services Commission “The
Use of Experts Consultation Paper: Quality, Price and Procedures in Publicly
Funded Cases” (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_consultation_paper.pdf,
at 6.14
[1010]
[2005]
EWCA Crim 3107 (30 November 2005)
[1012]
[2005]
EWCA Crim 177 at [48]
[1013]
[2005]
EWCA Crim 177 at [49]
[1014]
[2005] EWCA 3107
[1015]
[2005] EWCA 3107 at [60]
[1016]
See for example The Australian
College of Legal Medicine, the Medical-Legal Special Interest Group of the
Royal Australian College of Surgeons, the Australian and New Zealand Forensic
Science Society and The National Institute of Forensic Science. (As outlined
in; Wood J “Expert Witnesses – The New Era” Paper delivered at the 8th
Greek Australian International Legal & Medical Conference (Corfu, June
2001)
[1017]
See for example;
http://www.ewia.org.au/;
http://www.mit.com.au/professional_development/course/expert_witness_preparation_1067.htm
; http://www.expertopinion.com.au/info/training.html.
[1018]
See for example,
http://www.expertwitnesses.com.au/; http://www.expertopinion.com.au/.
[1019]
Freckelton, Reddy & Selby
Australian Judicial Perspectives on Expert Evidence; an Empirical Study
(Australian Institute of Judicial Administration, 1999) Question 4.1
[1020]
McClellan “Contemporary
Challenges for the Justice System – Expert Evidence” Paper given at the Australian
Lawyer’s Alliance Medical Law Conference 2007 (20 July 2007)
[1021]
See “Most Lawyers Fail to
Check on their Expert Witnesses” Times on Line 12 November 2007
Available at: http://business.timesonline.co.uk/tol/business/law/article2852661.
[1022]
See “Most Lawyers Fail to
Check on their Expert Witnesses” Times on Line 12 November 2007
Available at:
http://business.timesonline.co.uk/tol/business/law/article2852661.ece.
[1023]
See: http://www.inab.ie
[1024]
Walton “Deployed Bias” (2006)
156 NLJ 1084
[1025]
The Institute of Chartered
Accountants in Australia “Chartered Accountants Showcase Leadership in Expert
Witness Arena” (Press Release, 29 September 2005) Available at:
http://www.charteredaccountants.com.au/news_releases_2005/september_2005/A117398811.
[1026]
For more on this see Pamplin
“Bearing False Witness: The Regulatory Effect” (2005) 155 New Law Journal 1756
[1027]
Regulating Better: A
Government White Paper Setting Out Six Principles of Better Regulation (Department
of An Taoiseach, The Stationary Office, 2004)
[1028]
Conseil Nationale des
Compagnies d’Experts de Justice “Report: Access to Judicial Expertise in
Criminal Matters Implying More Than One Member State, Especially in Serious
Cases and Organised Crime” (AGIS, June 2007) Available at:
http://www.euroexpert.de/sixcms/media.php/61/Report-En-Anglais.pdf, at 75
[1029] Conseil
Nationale des Compagnies d’Experts de Justice “Report: Access to Judicial
Expertise in Criminal Matters Implying More Than One Member State, Especially
in Serious Cases and Organised Crime” (AGIS, June 2007) Available at:
http://www.euroexpert.de/sixcms/media.php/61/Report-En-Anglais.pdf.
[1030]
Conseil Nationale des
Compagnies d’Experts de Justice “Report: Access to Judicial Expertise in
Criminal Matters Implying More Than One Member State, Especially in Serious
Cases and Organised Crime” (AGIS, June 2007) Available at:
http://www.euroexpert.de/sixcms/media.php/61/Report-En-Anglais.pdf
[1031]
Bawdon “A Crowded
Thoroughfare” (1996) New Law Journal 1742
[1032]
See; The Society of Actuaries
in Ireland – Categories of Membership Available at:
http://www.actuaries.ie/About_the_Society/Membership/Categories/Categories_Listing.htm.
[1033]
See: “The Society of Expert
Witnesses – How To Join” Available at:
http://www.sew.org.uk/welcome/join_fs.htm.
[1034]
See: Law Society of Ireland
Complaints & Client Relations Committee Available at:
http://www.lawsociety.ie/displayCDAContent.aspx?node=192&groupID=192&code=society_committees.
[1035]
The procedures of the Tribunal
are regulated by the Solicitors Acts 1954 to 2002 and by the Solicitors
Disciplinary Tribunal Rules 2003. See The Solicitors Disciplinary Tribunal
Available at; http://www.distrib.ie/default.htm.
[1036]
See for example the Academy of
Experts Available at: http://www.academy-experts.org/default.htm.
[1037]
See for example the “General
Medical Council” Available at: http://www.gmc-uk.org/; “Actuarial
Profession – Disciplinary Board” Available at: http://www.actuaries.org.uk/Display_Page.cgi?url=/professional_affairs/discipline/board.html;
the “Taxation Disciplinary Board” Available at: http://www.tax-board.org.uk/;
Royal Institute of Chartered Surveyors” “Disciplinary Sentencing Policy”
Available at: http://www.rics.org/AboutRICS/RICSProfessionalRegulationandConsumerProtection/RICSdisciplinaryprocedures/sentencing_policy.htm;
The “Accountancy and Investigation Disciplinary Board” Available at:
http://www.frc.org.uk/aadb/index.cfm.
[1038]
[2001]
EWHC Ch 455 (2 November 2001) at [60]
[1039]
[2001]
EWHC Ch 455 (2 November, 2001) at [61]
[1040]
[2004] EWHC 208 (QB) (18 February 2004)
[1041]
[2004] EWHC 208 (QB) (18 February 2004) at
[34]
[1042]
[1996] 1 IR 144
[1043]
[1996] 1 IR 144 at 155
[1044]
[2006]
EWHC 146 (Admin) (17 February 2006); [2006]
EWCA Civ 1390 (26 October 2006)
[1045]
[2006]
EWHC 146 (Admin) (17 February 2006); [2006]
EWCA Civ 1390 (26 October 2006)
[1046]
The extent of this immunity
and whether or not it should be abolished will be discussed further on.
[1047]
[2006]
EWHC 146 (Admin) (17 February 2006) at [21]-[25]
[1048]
[2001]
EWHC Ch 455 (2 November 2001)
[1049]
[2004] EWHC 208 (QB) (18 February 2004)
[1050]
[2006]
EWHC 146 (Admin) (17 February 2006) at [23]
[1051]
[2006]
EWCA Civ 1390 (26 October 2006) at [45]
[1052]
[2006]
EWCA Civ 1390 (26 October 2006) at [115]
[1053]
See Blom-Cooper “Fault Lines
Remain After Meadow” (2006) 156 NLJ 1697
[1054]
[2006]
EWHC 146 (Admin) (17 February 2006); [2006]
EWCA Civ 1390 (26 October 2006)
[1055]
As per Collins J General
Medical Council v Meadow [2006] EWHC 146 (Admin) (17 February 2006 at
[55]
[1056]
[2006]
EWHC 146 (Admin) (17 February 2006); [2006]
EWCA Civ 1390 (26 October 2006)
[1057]
[1996] 1 IR 157
[1058]
[1996] 1 IR 157 at 161
[1059]
(1859) 10 Ir. Com. Law Rep.
195; (1859) 4 Ir. Jur. N.S. 286
[1060]
(1859) 10 Ir. Com. Law Rep.
195; (1859) 4 Ir. Jur. N.S. 286
[1061]
[1971] IR 217
[1062]
[1996] 1 IR 157
[1063]
(1859) 10 Ir. Com. Law Rep.
195; (1859) 4 Ir. Jur. N.S. 286
[1064]
(1859) 10 Ir. Com. Law Rep.
195 at 200
[1065]
[1996] 1 IR 157 at 161
[1066]
[1996] 1 IR 157 at 160
[1067]
[1996] 1 IR 157 at 161
[1068]
[1971] I.R. 217
[1069]
[1971] I.R. 217
[1070]
[1996] 1 IR 157
[1072]
[1996] 1 IR 157
[1073]
[1998] IEHC
52 at [9]
[1075]
[1962] 3 All ER 3
[1076]
[1958] 3 All ER 122
[1078]
[1999] IEHC
252; The existence of witness privilege was endorsed without question on
appeal: McMullen v McGinley [2005] IESC 10
[1080]
(1962) 1 All ER 869
[1081]
[1981] 1 All ER 715
[1082]
[1992] 2 All ER 122
[1083]
[2001] IEHC
17 at 22-23
[1084]
[1996] 1 IR 157
[1086]
[1996] 1 IR 157
[1088]
[1996] 1 IR 157
[1092]
[1971] I.R. 217
[1093]
[1996] 1 IR 157; Unreported, Supreme
Court 9 May 1997
[1095]
(1585) 4 Co. Rep. 14b, 76 E.R. 886
Cited in Darker & Ors v Chief Constable of The Mid-Westland Police [2000] UKHL
44; [2000] 3 WLR 747 (27th July, 2000)
[1096]
(1873) LR 8 QB 255
[1097]
(1873) LR 8 QB 255 at 264 This
statement was cited with approval by the House of Lords in Darker & Ors
v Chief Constable of The Mid-Westland Police [2000] UKHL
44; [2000] 3 WLR 747 (27th July, 2000)
[1098] See Simon-Brown
LJ’s summary of the public policy purposes underlying the immunity in Silcott
v Commissioner of Police for the Metropolis [1996]
8 Admin L.R. 633 at 637
[1099]
(1883) 11 QBD 588
[1100]
See also Hoffman LJ’s comments in Taylor
v Serious Fraud Office [1999] 2 AC 177 where he explained that the
immunity rule “is designed to encourage freedom of speech and communication in
judicial proceedings by relieving persons who take part in the judicial process
from the fear of being sued for something they say.”
[1101]
(1962) 1 All ER 869
[1102]
[1971] A. C. 470
[1103]
[1971] A. C. 470 at 480
[1104]
[1999] EWCA Civ 1452 (20 May 1999)
[1105]
[1999] EWCA Civ 1452 (20 May 1999)
at [8]
[1106]
Per Clarke MR in Meadow v GMC [2006]
EWCA Civ 1390 at [17]
[1107]
[2000] UKHL 44; [2000] 3 WLR 747 (27th July, 2000)
[1109]
[1981] 1 WLR 184
[1113]
Four elements are necessary to establish
this tort; 1. The claimant is prosecuted in the criminal courts 2. The
prosecution is resolved in the claimant’s favour 3. The prosecution was brought
without reasonable and probable cause 4. The prosecution was malicious.
(Hodgkinson & James Expert Evidence: Law and Practice (2nd ed Sweet & Maxwell 2007) at
13-001 fn. 2
[1114]
(1997) 10 Admin. L.R. 245
[1115]
(1997) 71 A.L.J.R. 903
[1116]
Per Brennan CJ, Dawson J, Toohey J
and Gaudron J (1997) 71 A.L.J.R. 903 at 907
[1117]
[1992] QB 483
[1118]
This decision was approved in X
(Minors) v Bedforshire County Council [1995] 2 AC 633
[1121]
[1994] 5 Med LR 268
[1122]
[1998]
EWCA Civ 1176 (8 July 1998)
[1123]
[1992] QB 483
[1124]
[1994] 5 Med LR 268
[1126]
[2000] UKHL 44; [2000] 3 WLR 747 (27July 2000)
[1130]
[1980] AC 198 at 214
[1132]
[2000] 3 All ER 673 at 701
[1135]
For a comprehensive summary of the
major arguments supporting the abolition of the immunity see Hodgkinson &
James Expert Evidence: Law and Practice (2nd ed Sweet & Maxwell 2007) at
13-010
[1136]
See Clarke MR’s judgment in General
Medical Council v Meadow [2006] EWCA Civ 1390 at [17] for a summary
of judicial statements exemplifying the reluctance to extend the immunity.
[1137]
[1998]
EWCA Civ 1176 (8 July 1998)
[1138]
[1998]
EWCA Civ 1176 (8 July 1998)
[1139]
[1992] 1 QB 483
[1140]
[1992] 1 QB 483 at 488
[1142]
No. 23452/94 [1998] ECHR
101
[1143]
Pursuant to the European
Convention on Human Rights Act 2003 (No. 20 of 2003)
[1145]
O'Keeffe v Kilcullen & Ors
[2001]
IEHC 17
[1146]
MP v AP: John Connolly Applicant
(Practice: In Camera) [1996] 1 IR 144
[1147]
Law Reform Commission Report on
Oaths and Affirmations LRC 34-1990 at 2.28
[1148]
See; “Fraudulent Forensic Expert
Jailed” BBC News 22 February 2007 Available at:
http://news.bbc.co.uk/2/hi/uk_news/england/manchester/6386069.stm; See: “Bogus
Doctor Jailed for 10 Years” BBC News 26 January 2005 Available at:
http://news.bbc.co.uk/2/hi/uk_news/england/london/4209509.stm.
[1150]
Dwyer “The Effective Management of
Bias in Civil Expert Evidence” (2007) 26 CJQ 57 at 73
[1151]
No 31 of 2004
[1152]
Law Reform Commission Report on
Contempt of Court LRC 47-1994 at 3.7
[1153]
[1999] EWCA Civ 1452 (20 May 1999)
[1154]
Contempt in facie curiae consists
of conduct which is so direct and immediate as to be deemed to be “in the
personal knowledge of the court.” (Law Reform Commission Consultation Paper
on Contempt of Court LRC 47-1994 at 4
[1155]
See In the Marriage of Slender
(Mr. H and DM) 29 FLR 267 (Cited in Law Reform Commission Consultation
Paper on Contempt of Court LRC 47-1994 at 13)
[1156]
This is provided in CPR r. 32.14
[1157]
Dwyer ““The Effective Management of
Bias in Civil Expert Evidence” (2007) 26 CJQ 57 at 73
[1158]
See; “Fraudulent Forensic Expert
Jailed” BBC News 22 February 2007 Available at:
http://news.bbc.co.uk/2/hi/uk_news/england/manchester/6386069.stm; “‘Bogus’
Psychologist Admits Lying to Police” Manchester Evening News 7 February
2007 Available at;
http://www.manchestereveningnews.co.uk/news/s/235/235509_bogus_psychologist_admits_lying_to_police.html;
Wilson “The Trouble with Experts” The Guardian 25 February 2007
Available at:
http://commentisfree.guardian.co.uk/david_wilson/2007/02/bea_campbell_in_these.html.
[1159]
This is expressly acknowledged in
Part 4.7 of the Civil Justice Council’s Guidance Protocol on Part 35 of the
Civil Procedure Rules (Civil Justice Council “Protocol for the Instruction of
Experts to Give Evidence in Civil Claims” (June 2005))
[1160]
[2004]
EWHC 2330 (Ch) (20 October 2004)
[1161]
[2004] EWHC
1887 (Ch) (30 July 2004)
[1162]
[2004]
EWHC 2330 (Ch) (20 October 2004) at [93]-[95]
[1163]
Hodgkinson & James Expert
Evidence: Law and Practice (2nd
ed Sweet & Maxwell 2007) at 13-011
[1164]
[1993] 2 Lloyd’s Rep 68.