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Entries for June 2008:

Re’ B (children) (sexual abuse and standard of proof) 2008 UKHL 35

25 Jun 2008, 10:41 by Rebecca Fitton-Brown

Labels: house-of-lords, sexual-abuse

The House of Lords has overturned Re'H on the standard of proof in sexual abuse allegations. The simple balance of probabilities applies and neither the seriousness of the allegation nor the seriousness of the consequences make any difference to the standard of proof; there is no logical or necessary connection between seriousness and probability.

Written by Rebecca Fitton-Brown, Barrister at New Walk Chambers, specialising in Family Law.


Hill v. Haines 2007 EWCA Civ 1281

20 Jun 2008, 14:08 by Rebecca Fitton-Brown

The Court of Appeal has held that parties to an ancillary relief order do give consideration under s.339 of the Bankruptcy Act 1986 (unless the case is exceptional and there has been fraud or collusion). The consideration is the determination of the transferee's right to ancillary relief. The value of the consideration is quantified by reference to the value of the property transferred so it will be irrelevant that and order may have been generous to one party because of the welfare of children. A wife to whom the former matrimonial home is transferred does not therefore need to worry about the husband's subsequent bankruptcy.

Written by Rebecca Fitton-Brown, Barrister at New Walk Chambers, specialising in Family Law.


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

09 Jun 2008, 15:17 by Kate Richards

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

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

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

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

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

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

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

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

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

Written by K Richards.


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