Expert Witnesses: Guidance on giving remote evidence

Given the increased use of remote hearings as a result of the COVID-19 pandemic, the Academy of Experts has recently published guidance for expert witnesses. The guidance is useful not only to expert witnesses but all parties in litigation.

Most expert witnesses will have had the experience of giving remote evidence via a videolink where they are the only person who is not in the hearing room (a remote hearing). Few will have had the experience of doing so in circumstances where some or all of the other participants are also communicating via video conferencing software at a virtual hearing.

Expert evidence is important and can help prove a claim or disprove allegations, especially where the case involves matters on which the court does not have the requisite technical or academic knowledge, or the case involves issues of foreign law. Unlike witnesses of fact, a qualified expert is permitted to give opinion evidence on any relevant matter.

A selection of the guidance is provided below.

Preliminary stages

• Check if it is intended that your evidence is to be given remotely.
• This should also be confirmed prior to the Hearing.
• In practice the final decision is often taken very close to the actual Hearing.
• Therefore, check when you are instructed and again 3 months before the Hearings and finally say, 1 week before the Hearing.

Report preparation

• Write the report with screen display in mind
• If you have been provided with confidential information (whether covered by GDPR or other confidentiality), do you need to repeat it in your report?
• Will it need to be redacted?

Technology

• Which platform is being used?
• The range of different software applications is growing, and they can vary significantly in how they work.
• Check which platform is being used, ensure it works on your technology and familiarise yourself with how it works.
• Remember different Courts and Tribunals use different platforms.
• Are you comfortable with using that platform?

Trial session

• A trial session should take place two days in advance of the hearing to test the software and hardware and check familiarity with the use of the programmes.
• If a pre-Hearing trial has not been arranged 1 week before the Hearing, ask for it.
• A trial session will also help to understand what can and cannot be seen.
• Ideally there should also be a person available to host the hearing.
• The host should:
  • Have an email and phone number for every participant;
  • Make sure that everyone can be seen and heard and can see and hear at least 15 mins before the hearing starts;
  • Ensure that all “active” participants are visible for the start of the hearing and mute their sound when not speaking;
  • Ensure that all “passive” participants have their video and sound muted;
  • Notice if your microphone malfunctions or the transmission is lost
  • Notice if transcribers lose their connection;
  • Notice if an “active” participant drops out.

Availability of bundle

• Ensure you have your own electronic bundle which is identical to that which will be provided to the judge and used by the lawyers.
  Ideally you should be provided with access to a bundle on the Cloud (such as Caselines where you are provided with an account and password) which will be updated by the parties and you will automatically have access to the updated bundle when you sign onto the cloud application.
• When will the bundle be sent to you?
• Will someone eg the instructing solicitor, do a trial run with you to check that the bundle will be easy to access at the hearing?
• Will you be able to access pages that are not on screen, during the hearing?

Protocol for the hearing

Does the court/tribunal/ other body have a remote hearings protocol?

If so, familiarise yourself with it. At the beginning of your evidence you may be asked to confirm various matters such as:

• That you are alone in the room from where you are giving evidence.
• If you are not alone, you will be asked to state who is present in the room when you start and, if any other person comes into the room, to notify the tribunal.
• That you have not and will not apply a virtual background while giving evidence.
  That you have access to the hard copy and/or electronic bundle and to the evidence display and/or live transcript and that they are all operating.
• That you have no other papers in front of you, save for a clean copy of your expert reports, appendices and errata (if applicable) plus possibly a clean copy of the other side’s expert’s report and that you are using an unmarked copy of the electronic hearing bundle;
• That your phone is switched off and that any messaging systems are disabled so that you cannot receive or transmit messages;
  That you understand that while you are giving evidence, including during any break or overnight, you should not communicate with any person about the case (except in relation to any administrative or technical matters concerning the hearing).

If there is no protocol:

• The Judge or Tribunal may ask you to show them the room so as to confirm that you are alone (or only accompanied by a solicitor).
• Some may ask you to position your screen so that the door is behind you – so that it would become apparent if anyone entered the room.
• If this is not possible because of the positioning of your desk and screens be prepared to say so.

Problems at the hearing

• If any aspect of the link drops out (eg the video drops out but the sound doesn’t), mention it immediately. Don’t just soldier on – it could affect the quality of your evidence.
• If your connection fails ensure you have a contact point details handy to notify the organiser of the difficulty.
• Experience suggests that 5 to 15 minutes a day may be taken up with technology problems.
• If this occurs during your evidence ask to go back to make sure you have given a complete answer at the point where there was a failure.
• If there is any distraction at the other location(s) e.g. someone clattering papers; whispering etc, don’t be afraid to mention it and ask if it can stop. This is often because a person has inadvertently left their microphone unmuted.

Overall, the judge will want to maintain the decorum of the court/tribunal and due solemnity where appropriate. Do what you can to help with that.

Download the Guidance on Giving Remote Evidence

What evidence is required in litigation?

To succeed in litigation, the claimant will need to prove his case on a balance of probabilities. To do this, the claimant must adduce evidence to support all the essential ingredients of the claim. The defendant will also need to adduce evidence to support his defence to some or all of the essential ingredients of the claim.

The evidence is usually comprised of:

• Contemporaneous documents (hard copy or electronic versions or both) intended to prove the issues in dispute.
• The evidence of factual witnesses, to tell the story behind the dispute and to fill in any gaps that the documents leave.
• Expert evidence (where appropriate and permitted by the court which has a duty to restrict expert evidence to that which is necessary to determine the dispute), to assist the court when the case involves complex technical, academic or foreign law issues.

Expert Evidence

The rules governing expert evidence are found in CPR 35:

Experts – overriding duty to the court

(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

CPR 35(3)

An expert witness may give evidence on, for example, technical or scientific matters, or specialist practice or procedure. They may give their opinion on specific matters in the dispute within their expertise. However, it is not the function of an expert witness to give their opinion on issues of law or fact which the judge or jury has to decide.

Do I need the court’s permission to call expert evidence?

Yes. The court’s permission to call expert evidence is always required as the court has a duty to restrict expert evidence to that which is necessary to resolve issues in the proceedings. When applying for expert evidence to be allowed, the parties must apply early in proceedings (otherwise the court may later refuse due to timetabling issues), identify the expert by name or by field of expertise, specify the issues that he will address and estimate the cost of the expert evidence.

If it grants permission, the court will limit the evidence to the named expert or field ordered, and may specify the issues that the expert should address. Oral expert evidence at trial may only be given with the court’s permission.

Court’s power to restrict expert evidence

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.

CPR 35(4)

What is an expert witness?

An expert witness is someone who has professionally recognised specialist experience, skill and know-how in a specific field that is an issue in court litigation. The expert witness is instructed to give an authoritative opinion based on their expertise. The overriding duty of any expert witness is owed to the court to provide unbiased evidence. Expert evidence can be used only with the court’s permission.

What is a single joint expert?

The court may order that expert evidence is to be given by a single joint expert, namely an expert who is instructed on behalf of both parties. However, this is not common in multi-track cases.

Parties may instruct another expert to assist them, but any evidence from that expert will not be admissible and the costs of instructing that expert will not be recoverable from the other side.

Must expert evidence be relevant to the issues?

It is self evident that expert evidence must be relevant to the issues to be decided by the court. For an example of the application of this principle to the question of expert medical evidence in a professional negligence action by a deceased miner’s estate against solicitors for the loss of a chance of pursuing a services claim in the context of the Department for Trade and Industry’s tariff-based compensation scheme for vibration white finger, see Edwards v Hugh James Ford Simey (A Firm) [2019] UKSC 54.

What is an expert report?

Expert evidence is usually given in the form of a written report, which must be the independent product of the expert. The expert’s overriding duty is to the court and not to the party that instructed him. Expert reports are often exchanged simultaneously. However, in some cases, expert reports may be exchanged sequentially.

Contents of report

(1) An expert’s report must comply with the requirements set out in Practice Direction 35.

(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.

(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

CPR 35.10

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