Monday, 25 November 2013

Expert Evidence and its Independence!

Evidence given to the Court by expert witnesses is required to be independent and uninfluenced by any parties and in doing so, the expert owes an overriding duty to the Court. The question that arises is that, what sorts of interest will cause an expert’s evidence to become unacceptable to the Court? How and when should the parties and the Court take action in response to a potential conflict of interest? What consequences flow when it is determined that an expert has not complied or cannot comply with the duty? It is seen that the Courts have adopted a more proactive stand in assessing potential conflicts which, in turn, requires experts and the parties to turn their minds to these issues, and make suitable notifications, at an early stage in proceedings. Furthermore, the Courts have emphasized its own role in taking the ultimate view as to whether a potential conflict is material and how it wishes to treat the affected evidence, even against agreement reached by the parties.

In certain states such as the United Kingdom, the Civil procedure Rules 1998 (CPR) had introduced a section on the Duty of Independence under Part 35 of the Rules where it requires that it be an overriding duty to the Court. Apart from that its provisions provide that (1) expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation and, (2) an expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate. By providing rules such as this, the independence of expert evidences are safeguarded and the probabilities of a bias can be prevented.

One such consequence of a determination of lack of independence on the part of an expert is that his/her evidence or proposed evidence will be declared unacceptable to the Court. The evidence, if given, can be disregarded or the expert can be debarred from giving evidence in the first place. The judicial have stressed out the importance of the issue of independence being ventilated at an early stage of the proceedings in order that the affected party is not left without the opportunity to seek alternative expert evidence. The Courts have now started imposing sanctions on experts who negligently disregard their duty while giving independent evidence. For example, Courts may if deem fit make costs orders against experts or report them to their professional body for misconduct.

Therefore, these experts are required to disclose the potential conflicts that may arise such as financial,
longstanding relationships with a party, employment or engagement as a contractor or expert scientific advisor, or due to other potentially conflicting duties by virtue of appointments or other roles undertaken by the expert. The Court has therefore sought to strike a balance between the disclosure of every potential conflict of interest, however minor, and those which ought properly to be brought into the open. The disclosure of potential conflicts expected by the Court is, firstly, that of the expert who should include such matters in his/her report and thereafter should notify matters to those instructing him/her. Equally, once the party instructing the expert becomes aware of a potential conflict, he/she must notify the other party. That, however, is not sufficient. Practitioners will need to go further and notify the 
Court even when, upon receipt of the disclosure, the opposing party has agreed to take no point on 
the issue.
It is ultimately is for the Court to consider the conflict and to decide how it affects the expert’s independence. The Court’s view may differ from that taken by the parties. The disclosure therefore needs to take place as soon as possible after the potential conflict has come to the attention of the instructing party. Similarly, any objections by the opposing party need to be made as early in proceedings as possible. Early disclosure allows the parties to reconsider their respective position and take any necessary action at an early stage before trial; for example by applying for permission for alternative expert evidence, or to seek to pose written questions to the expert in question to further probe any information that s/he has given. Further, early notification allows the Court to consider determining the independence issue as a preliminary matter.

Finally, the independence of expert evidence is to be construed since it provides the Judiciary a helping hand in making sure justice prevails.

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