Excluding Expert Evidence

Barings Plc (In Liquidation) and Another v Coopers Lybrand (A Firm) and Others and Associated Case (Ch D TLR 7 March)

Although admissibility of expert evidence is now governed by s3 of the Civil Evidence Act 1972, an expert’s report is not automatically admissible solely by virtue of it coming within s3. It must also be helpful to the court in arriving at its conclusions. Such evidence could for example be excluded where the issue to be decided is one of law or is one on which the court could reach a fully informed decision, without the hearing of such evidence. It was admissible in any case where the court accepted that there existed a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it had to decide, if the witness to be called satisfied the court that he had the necessary expertise to give potentially helpful evidence. The modern view was to regulate such matters of evidence by weight, rather than admissibility, even where the evidence in question went to the ultimate issue in the case. A trial judge could safely and gratefully rely on such evidence provided he did not lose sight of the fact that the final decision as to what was or was not negligence was for him alone. When experts came to court to give evidence they could be cross-examined. If, in the course of that cross-examination, the experts’ description of the background facts were to be successfully challenged or the experts’ accounts were to be found to be overly tendentious or partisan, then those findings would undermine the authority of the experts’ opinions in the eyes of the court. In the present case, the claimants’ criticisms of the reports were not reasons for striking out any part of the reports on an interim application.