Chambers Blog

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 Kate Richards, Barrister at New Walk Chambers, specialising in Civil Law.

  Ruth Manning of New Walk Chambers, Leicester, was called to the Bar in 1993 and has completed the Public Access training course and is registered with the Bar Council to advise and act directly on behalf of the public without the need for them to instruct a solicitor or intermediary. The obvious benefit of this is that it saves costs whilst providing an excellent standard of service to those who instruct her.

Ruth has enjoyed a varied legal background in both the public and private sector and works as a part-time tutor at the College of Law. She is an experienced barrister in the following areas.

Commercial Law:-Breach of contract, building disputes, sale of goods, personal injury, public liability, consumer credit agreements.

Education Law:- she has worked extensively for LEA's on Education and Exclusion Appeals. Ruth can draw on such experience to advise and assist parents who find themselves involved in appeals against unfavourable decisions in respect of school places and school exclusions.

Family Law proceedings :- matters involving Children Act 1989 proceedings, injunctions and occupation orders under Family Law Act 1996, and financial settlements (ancillary relief) under the Matrimonial Causes Act 1973.

Immigration Law:- Appeal in the Immigration courts regarding asylum claims, visa  appeals and deportation appeals.

Ruth is available to advise in writing, in conference, to assist with drafting letters  and forms for clients to send both before and during legal proceedings, to assist with drafting pleadings and to provide representation and advocacy at court hearings.

 New Walk Chamber's clerks are available to assist with the agreement of fees and dealing with initial instructions.

They can be contacted by e-mail: clerks@newwalkchambers.co.uk. Telephone 0116 255 9144.

The Bar Council web site, http://www.barcouncil.org.uk/  provides useful guidance for the lay client on public access to barristers.

Written by Ruth Manning, Barrister at New Walk Chambers, specialising in Direct Access.

Direct Public Access to the services of a barrister has been available to the general public since 2004; however only those barristers that are beyond thee years of call, have undertaken specific training and are registered with the Bar Council are eligible to provide such services.

 Since 2004 there has been a steady increase in the number of Direct Access instructions and in the number of barristers offering their services on a Direct Access basis. Due to the continued success of the Direct Access scheme a dedicated Public Access Bar Association was launched in 2007, and more recently an associated website has been launched which provides useful information to the general public and Direct Access barristers alike.

 Written by Karl Prosser, Barrister at New Walk Chambers, specialising in Civil Law.

  Anfang der Woche bekam ich sehr zu meiner Freude erstmals einen Fall mit, in dem es um Vertragsrecht ging. Der Termin verlief dann jedoch voellig anders, als ich erwartet hatte. Der Klaeger hatte naemlich (angesichts seiner bevorstehenden Auswanderung nach Zypern) genug von dem Rechtsstreit, der sich bereits fast ein Jahr hingezogen hatte und war deshalb bereit, dem Beklagten bei der Hoehe des geforderten Schadensersatzes entgegenzukommen, wenn dieser die Verletzung seiner vertraglichen Pflichten nicht laenger bestreiten und seinen counterclaim zurueckziehen wuerde. So kam es, dass ich anstelle einer langen Verhandlung nur einen fuenfminuetigen Termin, bei dem die barrister dem Richter die kurz zuvor auf dem Gerichtsflur erzielte Einigung vorlegten, mitbekam.

Zu erwaehnen waere noch, dass der barrister des Beklagten Deutscher war. Ich finde es bemerkenswert, dass man einen Beruf, bei dem es so sehr auf rhetorische Faehigkeiten ankommt, auch als Nichtmuttersprachler erfolgreich ausueben kann.

Gestern war ich dann erstmals ausserhalb von Leicester unterwegs: Ich begleitete einen barrister von New Walk Chambers zu einem Termin am Nottingham County Court. Es ging um einen Verkehrsunfall, ueber dessen Zustandekommen drei verschiedene Versionen vorgetragen wurden. Der Zeuge des Klaegers, der zum Zeitpunkt des Unfalls sein Beifahrer gewesen war, bestaetigte wenig ueberraschend dessen Darstellung des Geschehens. Der Zeuge des Beklagten hingegen wich in seiner Version erheblich von der des Beklagten ab, was letzteren natuerlich nicht gerade glaubwuerdig erscheinen liess. Hinzu kam, dass der Klaeger und sein Zeuge ihre Darstellung wesentlich praeziser vortrugen und auf die Fragen im Kreuzverhoer mit mehr Nachdruck und Bestimmtheit antworteten. Der Richter entschied daher verstaendlicherweise zugunsten des Klaegers.

  My second week began with a contract case in the Leicester County Court. I had read through the papers before and expected a controversial argument on breach and damage.

However, things developed in a way which is quite typical for the English legal system:  The barristers started to negotiate the amount of damages on the court floors and eventually the case was settled "last minute", i.e. just before the parties were supposed to enter the courtroom. So, instead of determining which of the party had actually been in breach of the contract, the judge then only had to approve of the agreement to which the parties had come.

Interestingly enough the barrister of the other party originally came from Germany. I found it remarkable that it is actually possible to practice law successfully as a foreigner.

Yesterday I got to observe a case in the Nottingham County Court dealing with a car accident. The parties gave two completely different versions of the event. The claimant's witness who had been his passenger when the accident happened described it in the same way as the former. The defendant's witness surprisingly did not confirm the defendant's statement but introduced a third version of the accident. Therefore, the judge finally decided in favour of the claimant.