CONSULTATION PAPER

The Law Reform Commission is an independent statutory

body established by the Law Reform Commission Act 1975.
The Commission’s principal role is to keep the law under
review and to make proposals for reform, in particular by
recommending the enactment of legislation to clarify and
modernise the law.

This role is carried out primarily under a Programme of CONSULTATION PAPER

Law Reform. The Commission’s Third Programme of Law
Reform 2008-2014 was prepared and approved under the
EXPERT

EXPERT EVIDENCE
1975 Act following broad consultation and discussion. The
Commission also works on specific matters referred to it
by the Attorney General under the 1975 Act. Since 2006,
the Commission’s role also includes two other areas of
EVIDENCE
activity, Statute Law Restatement and the Legislation
Directory. Statute Law Restatement involves incorporating
all amendments to an Act into a single text, making
legislation more accessible. The Legislation Directory
(previously called the Chronological Tables of the Statutes)
is a searchable guide to all legislative changes.

LRC CP 52 – 2008

€15
ADDRESS
35-39 Shelbourne Road Dublin 4 Ireland
TELEPHONE
+353 1 6377600
FAX
+353 1 6377601
EMAIL
info@lawreform.ie
WEBSITE
www.lawreform.ie
(LRC CP 52 – 2008)
The Law Reform Commission is a statutory body established by the Law Reform Commission Act 1975
www.lawreform.ie
CONSULTATION PAPER

EXPERT EVIDENCE

(LRC CP 52-2008)

© COPYRIGHT
Law Reform Commission

FIRST PUBLISHED
December 2008

ISSN 1393-3140
LAW REFORM COMMISSION‘S ROLE

The Law Reform Commission is an independent statutory body established by

the Law Reform Commission Act 1975. The Commission‘s principal role is to
keep the law under review and to make proposals for reform, in particular by
recommending the enactment of legislation to clarify and modernize the law.
Since it was established, the Commission has published over 140 documents
containing proposals for law reform and these are all available at
www.lawreform.ie. Most of these proposals have led to reforming legislation.

The Commission‘s role is carried out primarily under a Programme of Law

Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the
Commission following broad consultation and discussion. In accordance with
the 1975 Act, it was approved by the Government in December 2007 and
placed before both Houses of the Oireachtas. The Commission also works on
specific matters referred to it by the Attorney General under the 1975 Act. Since
2006, the Commission‘s role includes two other areas of activity, Statute Law
Restatement and the Legislation Directory.

Statute Law Restatement involves the administrative consolidation of all

amendments to an Act into a single text, making legislation more accessible.
Under the Statute Law (Restatement) Act 2002, where this text is certified by
the Attorney General it can be relied on as evidence of the law in question. The
Legislation Directory - previously called the Chronological Tables of the Statutes
- is a searchable annotated guide to legislative changes. After the Commission
took over responsibility for this important resource, it decided to change the
name to Legislation Directory to indicate its function more clearly.

ii
MEMBERSHIP

The Law Reform Commission consists of a President, one full-time

Commissioner and three part-time Commissioners.

The Commissioners at present are:

President:
The Hon Mrs Justice Catherine McGuinness
Former Judge of the Supreme Court

Full-time Commissioner:
Patricia T. Rickard-Clarke, Solicitor

Part-time Commissioner:
Professor Finbarr McAuley

Part-time Commissioner:
Marian Shanley, Solicitor

Part-time Commissioner:
Donal O‘Donnell, Senior Counsel

iii
LAW REFORM RESEARCH STAFF

Director of Research:
Raymond Byrne BCL, LLM (NUI),
Barrister-at-Law

Legal Researchers:
Chris Campbell B Corp, LLB Diop Sa Gh (NUI)
Frances Colclough BCL, LLM (NUI)
Siobhan Drislane BCL, LLM (NUI)
Claire Murray, BCL (NUI), Barrister-at-Law
Gemma Ní Chaoimh BCL, LLM (NUI)
Bríd Nic Suibhne BA, LLB, LLM (TCD), Diop sa Gh (NUI)
Jane O‘Grady BCL, LLB (NUI ), LPC (College of Law)
Gerard Sadlier BCL (NUI)
Joseph Spooner, BCL (Law with French Law) (NUI), Dip. French and
European Law (Paris II), BCL (Oxon)
Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI)

STATUTE LAW RESTATEMENT

Project Manager for Restatement:

Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor

Legal Researchers:
John P Byrne BCL, LLM (NUI), Barrister-at-Law
Elizabeth Fitzgerald LLB, M.Sc. (Criminology & Criminal Justice),
Barrister-at-Law
Catriona Moloney BCL (NUI), LLM (Public Law)

LEGISLATION DIRECTORY

Project Manager for Legislation Directory:

Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law

Legal Researchers:
Margaret Devaney LLB, LLM (TCD)
Rachel Kemp BCL (Law and German), LLM (NUI)

iv
ADMINISTRATION STAFF

Executive Officers:
Deirdre Bell
Simon Fallon
Darina Moran
Peter Trainor

Legal Information Manager:

Conor Kennedy BA, H Dip LIS

Cataloguer:
Eithne Boland BA (Hons), H Dip Ed, H Dip LIS

Clerical Officers:
Ann Browne
Ann Byrne
Liam Dargan
Sabrina Kelly

PRINCIPAL LEGAL RESEARCHER FOR THIS CONSULTATION PAPER

Margaret Maguire LLB, LLM (NUI)

v
CONTACT DETAILS

Further information can be obtained from:

The Law Reform Commission

35-39 Shelbourne Road
Ballsbridge
Dublin 4

Telephone:
+353 1 637 7600

Fax:
+353 1 637 7601

Email:
info@lawreform.ie

Website:
www.lawreform.ie

vi
ACKNOWLEDGEMENTS

The Commission would like to thank the following people who provided valuable
assistance in the preparation of this Consultation Paper:

Association of Consulting Forensic Engineers

Ms. Caroline Conroy, Managing Director, La Touche Witness Training, Ireland
Ms. Penny Cooper, Director of Continuing Professional Development and
Witness Preparation Training, City Law School, City University, London
Dr. Chris Pamplin, UK Register of Expert Witnesses
Mr. Ciaran Fahy, Consulting Engineer
Mr. Andrew Burr, Barrister-at-Law, Atkin Chambers, London
Mr. Paul Romeril, Consulting Engineer

Full responsibility for this publication lies, however, with the Commission.

vii
TABLE OF CONTENTS

Table of Cases xiii

INTRODUCTION 1
A Background to the project 1
B The admissibility of expert evidence of opinion and
the role of the expert witness in court 1
C The challenges involved in expert evidence and
the role of the expert witness 2
D Outline of the Consultation Paper 4
CHAPTER 1 ORIGINS AND DEVELOPMENT OF THE
EXPERT WITNESS 7
A Introduction 7
B Early Origins 8
C Special Juries 13
(1) Introduction 13
(2) Juries of Neighbours 14
(3) All Female Juries 16
(4) Juries of Foreigners 18
(5) Juries of Merchants & Other Professionals 19
(6) The Decline of the Special Jury 20
D Court Assessors 23
E Court Experts and Expert Witnesses 26
F Theory and Nature of the Opinion Rule 28
G A Growing Recognition of the Problems with Expert
Testimony 34
H Conclusion 38
CHAPTER 2 ADMISSIBILITY OF EXPERT EVIDENCE 39
A Introduction 39
B Rule against Opinion Evidence 39
(1) Exception to Exclusionary Rule: Expert Opinion
Evidence 40
(2) Necessary Elements to Prove Necessity
for Expert Testimony 40
C The Categories of Expert Evidence 41
(1) Evidence in the form of Opinion Based on
Facts Given in Court 42
(2) Expert Evidence to Explain Complex
Subject Matters or Technical Terminology 43

viii
 (3) Expert evidence of fact on an issue requiring
expertise to fully comprehend, observe
and describe 49
(4) Expert evidence of fact, on an issue that does
not require expertise to fully observe, but is a
necessary preliminary to giving evidence in
the other four categories. 50
(5) Admissible Hearsay of a Specialist Nature 51
D The Scope of Expert Evidence 62
(1) Within the Field of Expertise of the Expert 63
(2) The Common Knowledge Rule 65
(3) The Ultimate Issue Rule 78
(4) Expert and Non-Expert Evidence of Fact 88
(5) Non-Expert Opinion Evidence 91
E The Weight and Value to be Attached to
Expert Evidence 93
(1) The Court Assesses the Value of the
Expert Evidence 93
(2) The Evidence of Lay Witnesses can be given
Greater Weight than Expert Evidence 93
(3) Factors to be Taken into Account
When Determining Weight 95
(4) Conflicting Expert Testimony 96
F Usurpation of the Role of Judge or Jury 97
G Junk Science and the Need for a Reliability Test 101
(1) Ireland 102
(2) United States 105
(3) Australia 111
(4) England & Wales 115
(5) A Reliability Test for Ireland? 121
(6) Conclusion 132
CHAPTER 3 THE QUALIFIED & IMPARTIAL EXPERT:
DUTIES AND FUNCTIONS OF
EXPERT WITNESSES 133
A Introduction 133
B What is an ‗Expert Witness‘? 133
(1) Definition 133
(2) Necessary Experience and Qualifications 138
(3) Court Procedure for Proving Expertise 146
(4) Relationship between an Expert Witness
& Instructing Party 150
(5) Conclusion 153

ix
 C Principal Recognised Duties of Expert Witnesses 153
(1) No Definitive List of Duties in Ireland 153
(2) The Ikerian Reefer case 154
(3) Summary of Main Recognised Duties 156
D Duties of Expert Witnesses Recognised in Other
Jurisdictions 173
(1) England 173
(2) Australia 181
(3) Euroexpert 184
(4) France 185
(5) Ireland 186
E Conclusion 194
CHAPTER 4 ADVERSARIAL BIAS, PARTISANSHIP &
CONFLICTS OF INTEREST 197
A Introduction 197
B Conscious Bias 197
(1) Personal Interest 198
(2) Financial Interest 201
(3) Intellectual Interest 204
(4) Bias or Genuine Disagreement 206
C Unconscious Bias 207
(1) Forensic Experts 207
(2) Misunderstanding of the Role of
the Expert Witness 211
D Selection Bias 214
E Conflicts of Interest 215
F Judicial Commentary on Bias and Partisanship 217
(1) Ireland 217
(2) Australia 217
(3) England & Wales 218
G Ways to Reduce Possibility of Bias 222
(1) Argument One: The Current Adversarial Expert
Testimony System is Adequate to Combat Bias 222
(2) Argument Two: There is a need for the
Amendment of the Adversarial Structure 224
H Conclusion 229
CHAPTER 5 PROCEDURAL ASPECTS OF THE GIVING OF
EXPERT TESTIMONY 231
A Introduction 231
B The Need for Procedural Reforms 231
(1) Expense 232

x
 (2) Delay 233
C Selection, Appointment and Examination of Experts 234
(1) Disclosure of Intent to Adduce Expert Evidence 234
(2) Court Permission to Adduce Expert Evidence 235
(3) Pre-Trial Determination of Admissibility of
Expert Evidence and of Expertise 238
(4) Terms and Conditions of Appointment 241
(5) Information and Instructions for Experts 243
(6) Experts Costs and Fees 245
D Communication between Experts and between
Experts and the Court: Pre-trial and At the Hearing 250
(1) Pre-Trial Meetings between Experts 250
(2) Experts Questions 255
(3) Court Directions 256
(4) Disclosure of all Relevant Information 257
E Expert Reports 260
(1) Disclosure of Expert Reports &
Rules of Privilege 260
(2) Exchange of Expert Reports 266
(3) Requisite Contents of the Expert Report 267
(4) Producing Expert Reports in Court 276
F Alternative Structures to Party Appointed Experts 279
(1) Single and Court Appointed Experts 279
(2) Panels of Experts or Mixed Panels 299
(3) Special Jury 302
(4) Court Assessors or Advisors 304
G Conclusion 305
CHAPTER 6 SANCTIONS, ACCOUNTABILITY AND
GOVERNANCE OF EXPERT WITNESSES 307
A Introduction 307
B Training & Accreditation of Experts 308
(1) Fraudulent ‗Expertise‘ 308
(2) Existing Examples of Training & Accreditation 309
(3) Difficulties caused by Lack of
Mandatory Training 317
(4) Should Mandatory Training & Accreditation be
introduced? 317
(5) Training for Judiciary and Other Members
of the Legal Profession 320
(6) Training & Accreditation: Conclusion 320
C Professional Expert Witness Regulatory &
Disciplinary Bodies 320

xi
 (1) Dedicated Regulatory Body for
Expert Witnesses 320
(2) Dedicated Disciplinary Body for
Expert Witnesses 325
(3) Immunity from Disciplinary Action from
Professional Regulators 329
(4) What Circumstances Should Disciplinary Action
Be Taken In? 333
(5) Types of Professional Disciplinary Sanctions 333
(6) Immunity Issues: Conclusion 335
D Expert Witness Immunity from Civil or Criminal Suit 336
(1) Ireland 337
(2) England and Wales 344
(3) Expert Witness Immunity from Suit: Abolition or
Retention? 353
E Alternative Remedies to Civil Suit 357
(1) Criminal Sanctions 358
(2) Civil Sanctions 360
F Conclusion 362
CHAPTER 7 SUMMARY OF PROVISIONAL
RECOMMENDATIONS 363

xii
TABLE OF CASES

Abbey National Mortgages Plc v (1996) EGCS 23 Eng

Key Surveyors Nationwide Ltd &
Ors

Abinger v Ashton L.R. 17 Eq. 358, 373 (1873) Eng

AG (Ruddy) v kenny (1960) 94 ILR 185 Irl

Aird & Anor v Prime Meridian [2006] EWHC 2338 Eng

Ltd

Alsopp v Bowtrell (1620) Cro. Jac. 541 Eng

Anglo Group Plc v Winther [2000] EWHC Technology 127 (8th Eng
Brown & Co Ltd and BML March 2000)
(Office Computers) Ltd

Armchair Passenger Transport [2003] EWHC 367 QB Eng

Ltd v Helical Bar PLC

Ashford v Thornton (1818) 1 B. & Ald. 405 Eng

AW v DPP Unreported, High Court, 23 November Irl

2001

Barings plc v Cooper & Lybrand [2001] EWHC Ch 17 (9th February Eng
(No.1) 2001)

Beckwith v Sydebotham 1 Camp 116 Eng

Best v Wellcome Foundation [1993] 3 IR 421 Irl

Ltd

Bird v Adams [1972] Crim LR 174 Eng

Buckley v Rice-Thomas (1554) Plowden 124; 75 ER 182 Eng

Bushell's Case (1671) Vaughan 142, 22 Car. 2 Eng

Cala Homes (South) Ltd & Ors v [1995] EWHC 7 (ch) (06 July 1995) Eng
Alfred McAlpine Homes East
Ltd

Carter v Boehm 1 Smith LC, 7th ed (1876) Eng

Clark v Ryan (1960) 103 C.I.R. 486 Aus

Commonwealth Development [2002] NSWSC 980 NSW

Bank of Australia Pty Ltd v

xiii
Cassegrain

Confetti Records v Warner [2003] EWCH 1274 Eng

Music

Daniels v Walker [2000] EWCA Civ 508 Eng

Daubert v Merrell Dow 509 US 579: 113 S. Ct. 2786 [1993] US

Pharmaceuticals, Inc

Davie v Edinburgh Magistrates (1953) SLT 54 Eng

Davis v Stena Line Ltd [2005] EWHC420 (QB) Eng

Derby & Co Ltd and Others v The Times, Nov 9 1990 Eng
Weldon and Others

DK v TH (Orse TK) Unreported, High Court, February 25, Irl

1998

Doherty v North Western Health [2005] IEHC 404 Irl

Board, Davison and Medical
Defence Union and MDU
Services Ltd

DPP v A and BC Chewing Gum [1968] 1 QB 159 Eng

Ltd

DPP v Boyce [2005] IE CCA 143 Irl

DPP v Buckley [2007] IEHC 150 Irl

DPP v Egan [1990] ILRM 780 Irl

DPP v Kehoe [1992] ILRM 481 Irl

DPP v Yu Jie [2005] IECCA 95 Irl

DPP v Yusuf Ali Abdi [2004] IE CCA 47 Irl

Dunne v National Maternity [1989] IR 91 (SC) Irl

Hospital

English Exporters Pty. Ltd. v [1973] 1 Ch 415 Eng

Eldonwall Ltd

F v L (Orse F) [1990] 1 IR 348 Irl

F(G) v B(J) [2000] IEHC 112 (28th March 2000) Irl

F(Ors C) v C [1991] ILRM 79 Irl

Field v Leeds City Council [1999] EWCA Civ 3013 (8 December Eng
1999)

xiv
Fitzpatrick v DPP Unreported, High Court 5th December Irl
1997

Folkes v Chadd (1782) 3 Douglas 157 Eng

Franks & Faith (t/a Ground Rent [2000] EWLands LRA 2 1999 Eng
Securities) v Towse

Frye v United States (1923) 54 App. DC 46, 293 F. 1013 US

Galvin v Murray [2000] IESC 78 Irl

General Electric Co. v Joiner 522 US 136 (1997) US

Graigola Merthyr Co Ltd v [1928] 1 Ch 31 Eng

Swansea Corporation

Hanrahan v Merck, Sharpe & [1988] IESC 1; [1988] ILRM 629 (5th Irl
Dohme July 1988)

Harmony Shipping Co v Saudi [1979] 1 WLR 1380 Eng

Europe

Hawkes v London Borough of [1998] EWCA Civ 310 (20 February Eng
Southwark 1998)

HG v The Queen (1999) 197 CLR 414 Aus

Hoechst Celanese Corporation [1998] EWCA Civ 1081 Eng

v BP Chemicals Limited

Huffman v Lindquist (1951) 37 Cal 2d 465 US

JF v DPP [2005] IESC 24 (26 April 2005) Irl

JOC v DPP [2000] IESC 58 Irl

Joyce v Yeomans [1981] 1 WLR 549 Eng

JWH (Orse W) v GW Unreported, High Court, February 25, Irl

1998

Kenning v Eve Construction [1989] 1 WLR 1189 Eng

Kincaid v Aer Lingus Teoranta [2003] IESC 31 (9 May 2003) Irl

Kirin-Amgen Inc and Ors v [2004] UKHL 46 Eng

Hoechst Marion Roussel Ltd &
ORs

Kumho Tyre Co v Carmichael 526 US 137 (1999) US

KWT v DAT [1992] 2 IR 11 Irl

Ladner v Higgins 71 So. 2d 242 (La. Ct. App. 1954) US

xv
Liddell v Middleton (1996) PIQR 36 Eng

Liverpool Roman Catholic [2001] EWHC Ch 396 (6th July 2001) Eng
Archdiocesan Trust v Goldberg

Maguire v Ardagh [2002] 1 IR 385 Irl

McFadden v Murdock (1867) Exchequer IR ICL 211 Irl

MCG(P) v F(A) [2000] IEHC 11 (28th January 2000) Irl

McGrory v ESB [2003] IESC 45 Irl

McMullen v Farrell [1993] 1 IR 123 Irl

Mc'Naghten's Case (1843) 10 Cl. & Fin 200 Eng

McTear v Imperial Tobacco [2005] ScotCS CSOH 69 Eng

Midland Bank Trust Co Ltd v [1978] 3 All ER 571 Eng

Hett Stubbs & Kemp

Mohammed v Financial [2005] UKFSM FSM 013 (18 January Eng

Services Authority 2005)

MS v DPP Unreported 5th December 1997 Irl

Murphy v The Queen [1989] 164 CLR 94 Aus

Mutch v Allen [2001] 2 CPLR 24 Eng

National Justice Compania [1993] 2 Lloyd's Rep 68 Eng

Naviera SA v Prudential
Assurance Co Ltd (The Ikerian
Reefer)

NC v DPP SC July 5 2001 Irl

News Datacom v Lyons [1994] IEHC 1; 1994 1 ILRM 450 (20th Irl
January 1994)

O'Callaghan v O'Sullivan [1925] 1 IR 90 Irl

O'Doherty v Whelan (1994) 12 ILT 25 Irl

O'Keeffe v Kilcullen [2001] IESC 84 Irl

O'Keeffe v Kilcullen [2001] IESC 84 Irl

O'Keeffe v Kilcullen [2001] IESC 84 Irl

Payne v Shovlin [2006] IESC 5 (09 February 2006) Irl

Pearce v Ove Arup Partnership [2001] EWHC Ch 455 (2nd November Eng
Ltd & Ors 2001

xvi
People (AG) v Fennell (No. 1) [1940] IR 445 Irl

People (AG) v Kelly (1962) Frewen 267 Irl

People (DPP) v Allen [2003] 4 IR 295 Irl

People (DPP) v Fox Unreported, Special Criminal Court, Irl

23rd January 2002

People (DPP) v Howe Irish Times 15 October 2003 Irl

People (DPP) v John Gilligan Unreported 15 March 2001 Irl

People (DPP) v Pringle (1981) 2 Frewen 57 (CCA) Irl

Petursson & Or v Hitchison 3G [2005] EWHC 920 (TCC) (09 May Eng
UK Ltd 2005)

Polivitte Ltd v Commercial [1987] 1 Lloyd's Rep 379 Eng

Union Assurance Co. Plc

Poynton v Poynton (1903) 37 ILTR 54 Irl

Quarmby Electrical v Trant t/a [2005] EWHC 608 TCC Eng

Trant Construction

R (Factortame) v Secretary of [2002] EWCA Civ 932 Eng

State for Transport

R v Abadom [1983] 1 WLR 126 Eng

R v Abbey [1982] 2 SCR 24 Can

R v Barnes [2005] EWCA Crim 1158 Eng

R v Bjordal (1960) 103 C.I.R. 486 Aus

R v Bonython [1984] 38 SASR Aus

R v Cannings [2004] EWCA Crim 1 Eng

R v Chatwood [1980] 1 WLR 874; [1980 1 All ER 467, Eng

70 Cr.App.Rep. 39

R v Clark (Sally) [2003] EWCA Crim 1020 Eng

R v Dallagher [2002] EWCA Crim 1903 Eng

R v Ferrers (1760) 19 Howell, State Trials 924-944 Eng

R v Gilfoyle (2001) 2 Cr. App. R. 5 Eng

R v Greene (1679) 7 Howell, State Trials, 185, 186 Eng

R v Harris & Ors [2005] EWCA Crim 1980 Eng

xvii
R v Heath (1744) 18 Howell, State Trials 70 Eng

R v Howe [1982] 1 NZLR 618 NZ

R v Johnson (1994) 75 A Crim R 522 US

R v Luttrell [2004] EWCA Crim 1344 Eng

R v Meads [1996] Crim LR 519 CA Eng

R v Mohan [1994] 2 SCR 9 Can

R v O'Brien [2000] EWCA Crim 3 Eng

R v O'Connell (1844) 7 Irish L. Rep 261 Irl

R v Pembroke (1678) Ib. 1337, 1228, 1340, 1341 Eng

R v Puaca [2005] EWCA Crim 3001 Eng

R v Robb (1991) 93 Cr.App.R 171 Eng

R v Rouse The Times, 24 February 1931 Eng

R v Silverlock [1894] 2 QB 766 Eng

R v Stockwell (1993) 97 Cr.App.R. 260 Eng

R v Toner 93 Cr App R 382 Eng

R v Turner [1975] QB 834 Eng

R v Ugoh [2001] EWCA Crim 1381 Eng

R v Ward (1993) 96 Cr App R 1 Eng

Ramsay v Watson (1961) 108 CLR 642 Eng

RB v DPP Unreported, High Court, December 21 Irl

2004

Re Haughey [1971] IR 217 Irl

Re J [1990] FCR 193 Eng

Re J [1990] FCR 193

Re N [1999] EWCA Civ 1452 (20 May 1999) Eng

Richardson v Redpath, Brown & [1944] A.C. 62; 36 BWCC 259 Eng
Co Ltd

Rockwater v Technip France SA [2004] EWCA Civ 381: [2004] RPC 46 Eng
& Ors

Routestone v Minories Finance [1997] BCC 180 Eng

xviii
RT v VP (Orse VT) [1990] 1 IR 545 Irl

S(J) v S(C) [1996] IEHC 23; [1997] 2 IR 506 (14th Irl

October 1996)

Severn, King and Company v The Times April 14 1820 Eng

Imperial Insurance Company

Shell & Pensions v Fell [1986] 2 All ER 911 Eng

Frischmann

Sherrard v Jacob [1965] NI 151 N Irl

Smith v Lothian University [2007] ScotCS CSOH 08 Eng

Hospitals NHS Trust

Southern Health Board v C [1996] 1 IR 219 Irl

Spencer Cowper (1699) 13 Howell, State Trials, 1126- Eng

1135

Stanton v Callaghan [1998] EWCA Cil 1176 (8 July 1998) Eng

State (D and D) v Groarke & [1990] 1 IR 305 Irl

Ors

Strudwick & Merry (1994) 99 Cr. App. 326 Eng

The Beryl (1844) 9 P.D. 137 Eng

The People (DPP) v Horgan Irish Examiner 25 June 2002 Irl

The People (DPP) v Mark Central Criminal Court 2 December Irl

Lawlor 2005

The Torenia [1983] 2 Lloyd's Rep 210 Eng

Thompson v Thompson Solicitors Journal of 3rd February 1961 Irl

Volume 105

Thorn v Dickens [1906] WN 54 Eng

Thorn v Worthing Skating Rink (1877) 6 Ch D 415 Eng

Co

Toth v Jarman [2006] EWCA Civ 1028 (19 July 2006) Eng

Transport Publishing Co Pty Ltd (1955) 99 CLR 111 Eng

v The Literature Board of
Review

Velveski v The Queen (2002) HCA 4 (14 February 2002) Aus

Vernon v Bosley [1996] EWCA Civ 1217 Eng

xix
VW v DPP Unreported, Supreme Court 31 October Irl
2003

Wallersteiner v Moir (No. 2) [1975] QB 373 Eng

Webb v Page (1843) 1 Car & Kir 23 Eng

Whitehouse v Jordan [1981] 1 WLR 246 Eng

Wilband v The Queen (1966) CanLII 3 (SCC) Can

Witches Case (1665) 6 Howell, State Trials 687 Eng

Wright v Doe d Tatham (1838) 4 Bing NC 489 Eng

xx
INTRODUCTION

A Background to the project

1. This Consultation Paper forms part of the Commission‘s Third
Programme of Law Reform 2008-2014,1 and involves an examination of the
current rules concerning the admissibility of expert evidence in court and the
role and function of expert witnesses. The project also involves an examination
of arrangements for ensuring the quality of expert evidence. In terms of these
two key aspects of the project, the Commission also explores relevant options
for reform.

B The admissibility of expert evidence of opinion and the role of

the expert witness in court
2. As the detailed discussion in this Consultation Paper indicates, a key
element of the law of evidence as it applies in courts is that witnesses are
generally allowed to give only relevant and factual evidence; they are not
permitted to express their opinion on their evidence. For example, if a person
saw a colleague having an accident while working with a machine in a
workplace, he or she could give evidence in court about what happened but
would not be permitted to give an opinion about whether, for example, the
machine complied with national or international safety standards.
3. There are a number of reasons why opinion evidence by ordinary
witnesses is not permitted. One is that an opinion may be based on a ―hunch‖
rather than actual knowledge or expertise and would therefore be unreliable.
Another reason is that the opinion – for example, as to whether a machine
complies with safety standards – may be directly related to what is described as
the ―ultimate issue‖ to be decided by the court. In any criminal prosecution of
the employer under relevant safety and health legislation, the ultimate issue is
whether the employer was in breach of any statutory duty to the employee and
whether it has committed an offence. Similarly, in any civil claim the ultimate
issue is whether the employer was in breach of any legal duty and is required to
compensate the employee for any injuries sustained.

1
See Report on the Third Programme of Law Reform 2008 – 2014 (LRC 86 –
2007). Project 11 in the Third Programme commits the Commission to examine
the admissibility of expert evidence and the role of expert witnesses, on which the
Commission began work under its Second Programme of Law Reform 2000-
2007. The Commission is also currently (December 2008) examining two other
aspects of the law of evidence under its Third Programme of Law Reform,
documentary evidence and technology (Project 7) and the hearsay rule (Project
8).

1
4. The ultimate issue, whether of criminal or civil liability, is a matter for
a court to decide, not for any witness. The overwhelming majority of criminal
trials dealt with in the Irish courts (over 200,000 annually) are heard in the
District Court by a judge sitting alone, who is both the finder of fact and
determiner of liability. More serious crimes (over 2,000 annually) are in general
dealt with in the Circuit Criminal Court where the court consists of a judge and
jury. Here the jury, guided by the trial judge on questions of law, is the finder of
fact, while the judge determines the sentence. Major criminal trials, in general
murder and rape, are tried by judge and jury in the Central Criminal Court (over
100 annually). In a criminal trial the ultimate issue of innocence or guilt may
turn on a complex technical issue such as DNA evidence, mobile phone tracing
evidence, or the interpretation of medical evidence. In such cases, it is unlikely
that a judge or members of a jury will have the detailed technical knowledge
required to decide, for instance, whether a DNA profile of the accused correctly
matched the DNA sample found at the scene of a crime, or whether a baby died
because of violent shaking or from natural causes
5. The vast majority of civil trials are tried by a judge (or occasionally a
number of judges) without a jury. Here, the ultimate issue to be decided may
also turn on a technical issue, such as whether a particular machine complied
with safety standards or whether a chemical substance complied with relevant
statutory regulations. Again the court is unlikely to have the required knowledge
to deal with all the varied issues that arise in civil trials.
6. It is clear that this is where the combination of expert evidence and
the expert witness forms an important part of many criminal and civil trials. In
the law of evidence, the main exception to the rule against allowing a witness to
given opinion evidence is that an opinion can be given by an expert in an area
of expertise outside the scope of knowledge of the court, in particular the finder
of fact. The benefits of permitting the court to be assisted in its fact-finding role
by expert knowledge have long been recognised. In that respect, expert
evidence and expert witnesses will continue to play an important role in the
courts.

C The challenges involved in expert evidence and the role of the

expert witness
7. At the same time, however, the Commission is aware that expert
evidence and expert witnesses present challenges. In its Report on the
Establishment of a DNA Database2 the Commission traced the recent
emergence of DNA evidence in criminal trials. The Commission noted that the
benefits of DNA evidence, both in exonerating the innocent and in convicting

2
LRC 78-2005, available at www.lawreform.ie.

2
the guilty, are evident but it is also clear that this is an emerging science which
presents a number of challenges. On the one hand, for example, there may be
some who completely mistrust scientific evidence. On the other hand, there may
be those who take the view that the expert – perhaps especially a crime scene
expert referring to DNA evidence – must always be right because they are
always right when portrayed on TV. In other instances, the problem may be
with the individual expert – the testimony may be hugely relevant and
convincing but it may be delivered using scientific jargon that the court (whether
judge or jury) cannot follow. In its Report on the Establishment of a DNA
Database the Commission made some recommendations on how these matters
might be addressed in the specific setting of DNA evidence.
8. The Commission is aware that the specific issues it discussed in the
context of DNA evidence reflect concerns in the wider setting of expert evidence
and expert witnesses generally. Increasing specialisation of knowledge in a
complex society has led to an exponential growth in the number of requests to
enlist the aid of experts in civil and criminal trials. This has led to an
examination of this growth, with a view to ensuring that expert evidence remains
available to courts while at the same time addressing concerns about its
reliability.
9. In the Reports of Lord Woolf in the mid 1990s3 that led to
fundamental reform of civil procedure generally in the courts in England and
Wales, some of the principal causes for unease with the system of giving expert
evidence were outlined. In Lord Woolf‘s Access to Justice, Interim Report
(1995) the following comments were made:
―In many cases the expert, instead of playing the [independent and
impartial] role identified by Lord Wilberforce,4 has become… ‗a very
effective weapon in the parties' arsenal of tactics.‘ A similar point was
made by the Commercial judges… when they summarised the
present faults as follows:
polarisation of issues and unwillingness to concede issues from
the start;
insufficient observance of the confines of expert evidence and
expansion into the realms of rival submissions; and

3
Lord Woolf, Access to Justice, Interim Report (1995) and Lord Woolf, Access to
Justice, Final Report (1996).
4
This is a reference to the view of Lord Wilberforce in Whitehouse v Jordan [1981]
1 All ER 267, in which he stated: ―It is necessary that expert evidence presented
to the court should be and should be seen to be the independent product of the
expert uninfluenced as to form or content by the exigencies of litigation.‖

3
 insufficient willingness to strip out, agree or concede all but the
essential issues following exchange of reports.‖
10. The Australian Law Reform Commission, which carried out a review
in this area in 1999, identified some of the main challenges of expert evidence
as being:5
The court hears not the most ‗expert‘ opinions, but those most
favourable to the respective parties, and partisan experts frequently
appear for one side.
Experts are paid for their services, and instructed by one party only;
some bias is inevitable and corruption a possibility.
Questioning by lawyers may lead to the presentation of an inaccurate
picture, which will mislead the court and frustrate the expert.
Where a substantial disagreement concerning a field of expertise arises
it is irrational to ask a judge to resolve it; the judge has no criteria by
which to evaluate the opinions.
Success may depend on the plausibility or self-confidence of the expert
rather than the expert's professional competence.
11. This Consultation Paper seeks to set out the law as it stands in
Ireland on expert evidence, and examine whether the criticisms that have been
raised in other jurisdictions can be applied in the Irish context. The Commission
seeks to outline the problems that have been raised as well as discussing some
of the potential changes that could be made to address these problems.

D Outline of the Consultation Paper

12. In the light of these general introductory comments the Commission
now proceeds to provide an overview of the succeeding chapters in this
Consultation Paper.
13. Chapter 1 sets out an historic overview of how expert knowledge was
used in the courts along with the development of a body of evidence laws and
how this has evolved into the current rule against opinion evidence, subject to
the exception that allows expert opinion testimony.
14. Chapter 2 examines the rules governing the admissibility of expert
evidence. The different categories of matters on which expert evidence is
admitted are outlined. This chapter also examines the precise scope and
parameters of expert evidence and the rules governing this, including the
requirement that the issue be outside the range of knowledge of the finder of
fact and the prohibition on the giving of an expert opinion on an ultimate issue in
a case. The various factors that are taken into account when determining the

5
ALRC Report 89 Managing Justice (1999), Chapter 6.

4
appropriate weight and value to attach to expert testimony in a particular case
are outlined. Some of the main concerns about how expert testimony is given,
the possible usurpation of the role of the jury and the possible admission of
unreliable or ‗junk science‘ are also identified. This chapter concludes by
discussing whether there is a need to introduce some sort of reliability test, such
as the Daubert and Frye tests that have been applied in the United States.
15. Chapter 3 focuses not on the evidence but on the individuals
proffered to give expert evidence. The question ‗what is an expert witness‘ is
addressed, along with determining the scope of the duties and function of an
expert witness.
16. Chapter 4 examines the potential problems that can arise with expert
witnesses, such as a failure to act independently, in an unbiased manner or
impartially, and the possibility of the experts becoming partisan ‗hired guns‘ for
their instructing parties. This chapter also outlines a number of ways in which
bias and partisanship can be limited in the giving of expert testimony.
17. Chapter 5 discusses some procedural changes that could be made to
deal with the expense and delays involved in the current system. A range of
provisions aimed at improving communication between experts, and between
experts and the court, and also aimed at improving the standard of expert
reports, are identified. This chapter also examines some alternative
arrangements for giving expert testimony that might be introduced, in contrast to
the position in Ireland at present by which the parties are responsible for the
decision to adduce expert evidence and for the choice of expert.
18. Chapter 6 examines the issue of introducing some form of
accreditation, registration or training regime for experts. The range of possible
sanctions that could be imposed on an expert for failing to act independently, for
negligence, or for breach of duty is also discussed. In this respect, the
appropriateness of having immunity from suit for expert witnesses is also
debated.
19. Chapter 7 contains a summary of the Commission‘s provisional
recommendations for reform as well as issues on which submissions are
sought.
20. This Consultation Paper is intended to form the basis for discussion
and therefore all the recommendations made are provisional in nature. The
Commission will make its final recommendations on the subject of expert
evidence following further consideration of the issues and consultation with
interested parties. Submissions on the provisional recommendations included in
this Consultation Paper are welcome. To enable the Commission to proceed
with the preparation of its Final Report, those who wish to do so are requested

5
to make their submissions in writing by post to the Commission or by email to
info@lawreform.ie by 30 April 2009.

6
1
CHAPTER 1 ORIGINS AND DEVELOPMENT OF THE EXPERT
WITNESS

A Introduction
1.01 A wealth of academic literature and professional debate currently
exists which focuses on the use of expert witnesses in court. This might give the
impression that the use of expert witnesses is a new legal phenomenon, which
has come about as a result of the increasing specialisation of knowledge in
today‘s society, and that it is only in recent decades that the potential criticisms
and weaknesses of the expert witness system have been identified. In fact, the
use of, and problems associated with, expert evidence in court has deep
historic roots, and examples can be seen in case law dating from the Middle
Ages.
1.02 Hand argues that an historical analysis of the rise of expert testimony
is in reality no more than a gradual recognition of such testimony amid the rules
of evidence as those rules began to take form. An examination of the rise of its
history highlights that expert evidence has long since been accepted as
necessary and beneficial, even prior to the development and enforcement of
exclusive rules of evidence.1
1.03 The purpose of this chapter is to trace the development of the use of
expert evidence from its earliest origins, and by doing so to highlight that the
benefits of using such evidence, and the debate surrounding its many problems,
have been evolving for several centuries.
1.04 Part B looks at the early origins of the use of experts prior to the
advent of trial by jury. Part C examines and explains the concept of the special
jury and gives historical examples where this structure was used. Part D looks
at the use of court assessors in this jurisdiction and in other jurisdictions over
the centuries. Part E follows the rise of the use of the court expert and expert
witnesses in the courts and Part F traces the growth of a formal body of
evidence law to govern the use of such experts. Part G then discusses the
problems that emerged due to increasing use of expert witnesses in litigation.

1
Hand ―Historical and Practical Considerations Regarding Expert Testimony‖
(1901) 15 Harvard LR 40 at 50.

7
1.05 This chapter concludes by summarising in Part F the current Irish
position on the use of expert witnesses in court, with the aim of providing an
overview of the discussion that follows in the subsequent chapters.

B Early Origins
1.06 The basis for allowing expert knowledge in the resolution of disputes
is that such knowledge is necessary for a finding that certain facts existed. Prior
to the advent of trial by jury, however, the resolution of disputes was largely
founded on a judgment from God, the Judicium Dei, which involved very
different principles. The older methods of proof used did not involve rational
adjudications upon evidence given in support of a theory, and there was little
opportunity for passing judgment on particular facts.2
1.07 The trial itself was, as Rosenthal describes it, ―merely a submission
to a mechanical process of proof.‖3 The court was simply required to decide
which party should undergo the selected form of proof. Then, under the
supervision of the court, this party would take an oath before God that his cause
was just, and subsequently undergo some kind of test, or trial. 4 As can be seen
from a brief explanation, these methods of trial did not therefore contain any
provision for experts or for the development of laws of evidence, or for the use
of witnesses in the modern sense.
1.08 The older methods of trial took four main forms. The best known and
most commonly used method in criminal trials was trial by ordeal. This was an
appeal to God to reveal the truth of human disputes and took several forms,
usually requiring fire or water. For example, the ordeal of water required the
accused party to be bound and lowered into a body of water; if he sank the
water was said to have ‗received him‘ with God‘s blessing and he was quickly
pulled out.5
1.09 Another commonly used form of ordeal involved the party with the
burden of proof wrapping his hand in leaves and then holding a hot iron for a set
period of time. If he emerged unscathed, his cause was considered just and he

2
Holdsworth A History of English Law (Vol IX 2nd ed Methuen & Co Ltd 1945) at
130.
3
Rosenthal “The Development of the Use of Expert Testimony‖ (1935) 2 (4) Law
and Contemporary Problems 406.
4
Sward ―A History of the Civil Trial in the United States‖ (2003) 51 Kan. LR 347 at
352.
5
Baker An Introduction to English Legal History (Butterworths 1990) at 5.

8
had successfully proved his case. If he burned, he lost.6 Such ordeals were
manipulable, and many undergoing an ordeal with hot iron succeeded. This
may have contributed to its considerable popularity as the method of trial of
choice.7 In 1215, the Ordeal was denounced by the Church in the conciliar
legislation of the Fourth Lateran Council under Pope Innocent III. 8 As the Clergy
were needed to administer the oath that had backed the accusation, 9 the ordeal
could not proceed without their support, and secular authorities quickly followed
the Church‘s example by prohibiting ordeal by fire or water as a means of
resolving disputes.10
1.10 Trial by battle is often considered to be a type of trial by ordeal, a
―bilateral ordeal‖.11 Here, the parties decided the issues by physical combat, the
theory being that Providence would always intervene to ensure victory on the
side of the right.12 This form of trial was invoked in civil cases, and parties to the
dispute would often hire champion fighters to engage in battle for them.13 This
may also explain why it was such a popular method amongst the upper classes,
who would have been able to afford such unassailable competitors. This
method of trial began to wane at the same time as the other early forms of

6
Sward ―A History of the Civil Trial in the United States‖ (2003) 51 Kan. LR 347 at
352.
7
Sward ―A History of the Civil Trial in the United States‖ (2003) 51 Kan. LR 347 at
352.
8
McAuley ―Canon Law and the End of the Ordeal‖ (2006) 26 Oxford University
Press 473.
9
As per Allen ―It must always be remembered…that the accusation was supported
by a very solemn oath, and so long as oaths retained their magic, doubtless the
theory was that there must be some substance in the accusation, or else the
accuser would be blasted on the spot.‖ Allen Legal Duties (Oxford 1931) cited in
McAuley & McCutcheon Criminal Liability: A Grammar (Roundhall Sweet and
Maxwell 2000) at 27 fn. 146.
10
McAuley ―Canon Law and the End of the Ordeal‖ (2006) 26 Oxford University
Press 473.
11
See Pollock & Maitland The History of English Law Before the Time of Edward 1
nd
(A reprint of 2 ed Cambridge University Press 1968) Vol. 2 at 600; Holdsworth A
th
History of English Law (7 ed Methuen & Co Ltd 1956) Vol. 1 at 310.
12
Rosenthal ―The Development of the Use of Expert Testimony‖ (1935) 2 (4) Law
and Contemporary Problems 406.
13
Sward ―A History of the Civil Trial in the United States‖ (2003) 51 Kan. LR 347 at
353.

9
proof, but was not in fact formally abolished until 1818 in the renowned case of
Ashford v Thornton.14
1.11 Another method was the system of compurgation or wager of law
where the accused took an oath that he did not commit the crime and produced
eleven compurgators to back this claim and testify to his good character. 15
Initially this required eleven neighbours of the accused to testify, but with the
centralisation of Royal Justice in the two benches it became costly and
unnecessary to expect 11 men to be brought long distances for routine cases.
As a result the system evolved to enable the defendant to hire professional
compurgators to testify on his behalf and by the end of the 16th century it was
the official duty of the court porters to provide them for a fee. This in effect
meant the process simply amounted to the defendant‘s oath coupled by a
ceremony for which he paid, and the system of compurgation did not survive
after 1600.16
1.12 Another factor in the decline of this method was the complexity
involved in the oath, as the emphasis was placed here on the oath itself, rather
than any probative value of the witness‘ words.17 If any of the compurgators
missed even one word, the oath failed and the party lost.18
1.13 Related to the wager of law system was the system of proof by
witnesses. This was a process whereby a party would produce a witness who
would swear an oath on the veracity of that party‘s version of events and attest
to their good character. Essentially, success was dependant on the quantity of
witnesses, and the party who could produce the most witnesses to back his
claim won the lawsuit.19
th
1.14 These older forms of proof all began to decline around the 13
century amid a growing realisation that they were irrational and inconsistent
methods of resolving disputes. In particular, contemporary Church reformers
had become very disillusioned with such forms of proof, and appealing to the

14
(1818) 1 B. & Ald. 405.
15
Baker An Introduction to English Legal History (Butterworths 1990) at 87.
16
Baker An Introduction to English Legal History (Butterworths 1990) at 88.
17
Rosenthal “The Development of the Use of Expert Testimony‖ (1935) 2 (4) Law
and Contemporary Problems at 406.
18
Sward ―A History of the Civil Trial in the United States‖ (2003) 51 Kan. LR 347 at
352.
19
Rosenthal “The Development of the Use of Expert Testimony‖ (1935) 2 (4) Law
and Contemporary Problems at 406; Sward ―A History of the Civil Trial in the
United States‖ (2003) 51 Kan. LR 347 at 353.

10
Judicium Dei to settle legal disputes was criticised as being inconsistent with
the principles of theology at the time.20
1.15 The vacuum left by the abandonment of these methods of proof
required the secular authorities to create or adopt new procedures to carry out
their functions.
1.16 Trial by inquisition became the new method of choice in the majority
of Western European countries. However in England, the Juries of Presentment
introduced by the Assizes of Clarendon and Northampton provided the model
for what later became trial by jury. 21 Through jury trial, the adjudication of
disputes slowly became centred on the reasoned decision of a body of
reasonable human beings who received evidence before them in the form of
documents and records, rather than on the outcome of a mechanical procedure
of proof. Indeed, Holdsworth argues that it is at this point that we can see an
indication of the tentative beginnings of a law of evidence, for example, the
introduction of provisions that witnesses should be compelled to attend and
testify in common law,22 and for the cross examination of witnesses by
counsel,23 which helped to clarify the distinction between jurors and witnesses.
24

1.17 However, it was not the case that the law of evidence had a gradual
and consistent development right from the beginning of the system of trial by
jury. In fact, the earliest jury trials had few formal procedures, and an elaborate
structure of rules of evidence and procedure was not initially considered
necessary. The need for such a structure was only recognised towards the end
th
of the 18 century when the English legal system underwent what has been
termed the ―Adversarial Revolution.‖ This refers to the increasing presence of

20
For a detailed discussion of the reasoning see McAuley ―Canon Law and the End
of the Ordeal‖ (2006) 26 Oxford University Press 473.
21
McAuley & McCutcheon Criminal Liability: A Grammar (Roundhall Sweet and
Maxwell 2000) at 26.
22
The Act of 1562-1563 Eliz C. 9, §12 (1563).
23
Sir Thomas Smith De Republica Anglorum (M. Dewar ed 1982) at ii 15 Cited in
Mitnick ―From Neighbour-Witness to Judge of Proofs: The Transformation of the
English Civil Juror‖ 32 (1988) Am. J. Legal Hist. 201 at 204 fn. 20.
24
Holdsworth A History of English Law (Vol. IX 2nd ed Methuen & Co Ltd 1945) at
130.

11
lawyers in the trial process which until that point had been dominated by the
judge.25
1.18 ‗Lawyerization‘26 led to criminal proceedings becoming more centred
around the presumption of innocence, and also led to a clearer division between
jurors and witnesses. As a result, rules governing probative evidence, and what
matters could be presented to the jury, became extremely important. Once the
trial process became organised around the notion that the elements of the case
must be proven by the parties before a jury, the parties began to gain more
th
control over production of evidence in court, and by the end of the 18 century a
considerable body of evidence law had been developed.27
1.19 The requirement that the parties prove their case led to a realisation
that the resolution of certain disputes of a technical or complex nature might
well require expert or specialised knowledge. However it appears that at the
outset the common law struggled to decide how best to acquire and allow such
knowledge. In time, three main procedures for importing expert knowledge were
developed which will now each be discussed in greater detail.
1.20 In some instances, special juries composed of persons
knowledgeable in the subject matter of the particular case were empanelled,
effectively a jury of experts. Elsewhere, most notably in courts of admiralty, the
court itself appointed ‗court assessors‘, to advise it in matters beyond its
knowledge. In these cases the court had discretion to pass instructions on to
the jury or to be guided by the assessor in making its own findings. 28 Later on,
expert witnesses were hired by the parties or the court, a system that has
evolved into the present one. The development of these three procedures will
now be discussed.

25
Langbein ―The Criminal Trial before the Lawyers‖ (1978) 45 U. Chic. LR 263 cited
in Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 9.
26
This term was coined by Langbein in ―The Criminal Trial before the Lawyers‖
(1978) 45 U. Chic. LR 263 cited in McAuley & McCutcheon Criminal Liability: A
Grammar (Roundhall Sweet and Maxwell 2000) at 37.
27
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 9.
28
Rosenthal “The Development of the Use of Expert Testimony‖ (1935) 2 (4) Law
and Contemporary Problems at 407.

12
C Special Juries
(1) Introduction
1.21 The first method of enhancing the knowledge of the jury was not
through the use of experts as witnesses or court advisors, but in fact through
‗Special Juries.‘ Oldham argues that the term ‗special jury‘ can have a number
of different meanings, but for the purpose of this discussion the term refers to
jurors who were specially selected because their special knowledge or
experience made them particularly qualified in the facts of the dispute in
question, or gave them a special expertise in a particular subject matter. 29
1.22 The concept of expert or special juries was not a new or novel
development, and there are indications of this system dating from as far back as
th
the 14 century. 30 According to Thayer;
―What we call the ‗special jury‘ seems always to have been used. It
was the natural result of the principle that those were to be
summoned who could best tell the fact, the veritatem rei.‖31
th
1.23 By the end of the 19 century, the use of special juries was
widespread. In England, the first legislation to provide for the regulation of
special juries was An Act for the Better Regulation of Juries,32 which provided
for the use of such juries wherever they were requested by the parties or they
were considered necessary. The 1730 Act was extended to apply in Ireland by
sections 3 to 6 of An Act for the Amendment of the Law with Respect to

29
It could also describe either a jury of individuals of a higher class than usual (in
that they satisfied certain property holding requirements), or a ‗struck jury‘, which
is one formed by a special procedure allowing parties to strike names from a
large panel of prospective jurors. (See Oldham ―The Origins of the Special Jury‖
(1983) 50 University of Chicago LR 137 at 139).
30
As per Erskine Childers Esq. ―Special Juries do not exist, as many people seem
to suppose, by the authority of a modern statute; on the contrary, they are as
ancient as the law itself.‖ (R v Lambert & Ors, Printers & Proprietors of the
nd
Morning Chronicle 2 ed., London, 1794 at 16) Cited in Oldham ―The Origins of
the Special Jury‖ (1983) 50 University of Chicago LR 137.
31
Thayer A Preliminary Treatise on Evidence at the Common Law (Reprint of the
1898 edition, Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey
& New York, 1969) at 94.
32
An Act for the Better Regulation of Juries 3 Geo. II, Cap. 25, (1730) (Cited in:
Oldham ―The Origins of the Special Jury‖ (1983) 50 University of Chicago LR 137
at 139-140 fn. 12).

13
Outlawries, Special Juries and the Future Effects of Bankruptcy in Certain
Cases 1777,33 and section 21 of the English Jury Act 1826.34 The Irish Jury Act
183335 was the first express legislative mention of special juries in this
jurisdiction.36
1.24 It should be noted however, a number of different types of special
juries were used through the centuries; some of the most common ones will
now be discussed.
(2) Juries of Neighbours
1.25 The earliest juries were required to be entirely composed of ‗next
neighbours‘ i.e. members of the locality where the dispute arose.37 The
reasoning behind this was that they were likely to be knowledgeable about the
events in question. They were known as ‗hundredors,‘ and the jury effectively
amounted to juries of neighbours.
1.26 These early jurors were permitted and in fact expected to learn the
facts of the case through their own means, 38 therefore having a jury of
inhabitants from the area where the event occurred increased the likelihood of
their being well-informed about the event in question.39 In time, the requirement

33
An Act for the Amendment of the Law with Respect to Outlawries, Special Juries
and the Future Effects of Bankruptcy in Certain Cases (17 & 18 Geo. III, cap. 45)
(Cited in: Howlin ―Special Juries: A Solution to the Expert Witness?‖ (2004) 12
ISLR 19 at 35 fn. 128).
34
See: Howlin ―Special Juries: A Solution to the Expert Witness?‖ (2004) 12 ISLR
19 at 35.
35
3 & 4 Wm. IV, Cap 91.
36
This Act consolidated all previous legislation that had dealt with juries. (See;
Howlin ―Special Juries: A Solution to the Expert Witness?‖ (2004) 12 ISLR 19 at
35 fn. 124).
37
See 28 Edw. 1, ch. 9 (1300) Cited in Mitnick ―From Neighbour-Witness to Judge
of Proofs: The Transformation of the English Civil Juror‖ 32 (1988) Am. J. Legal
Hist. 201 at 205 fn. 22.
38
In fact, as they reached a verdict on the basis of their personal knowledge, jurors
were held liable for a false verdict and if a later jury found that the first jury had
erred, the members of this first jury would be severely punished and their verdict
upset. See Holdworth A History of English Law (2nd ed Methuen & Co Ltd 1945)
at 333-34.
39
As per Vaughan J in Bushell's Case ―Being return‘d of the vicinage, whence the
cause of action ariseth, the law supposeth them [the jury] thence to have
sufficient knowledge to try the matter in issue (and so they must) though no

14
for an entire jury made up of ‗next neighbours‘ became unmanageable, and the
rule was altered to require that only a certain number of the jury come from the
particular ‗hundred‘ in question.40 These men were then expected to inform the
other jurors of the background to the issues.41
1.27 However, at this time the distinction between jurors and witnesses,
and how information was to be imported into the case, was unclear. The
requirement that the jurors be knowledgeable about the facts of the case did not
necessarily mean that their knowledge was firsthand, and it was common for
jurors to consult witnesses and other sources of evidence before reaching their
verdict.42 As Holdsworth explains,
―…the issue of how a jury came by its knowledge was not originally a
matter with which the law concerned itself.‖43
1.28 The transformation from this type of jury of witnesses into a jury of
impartial fact-finders took place gradually over several centuries, and a great
deal of uncertainty remains regarding this transformation. 44 For a considerable
period of time, the jury as witnesses coexisted with the jury as fact-finder.45

evidence were given in either side in Court, but to this evidence the Judge is a
stranger.‖ (Bushell’s Case (1670) Vaughan 1006, 135 at 147.
40
Oldham explains that there is no uniform definition of the term ‗hundred‘, but that
historically it was used to describe a subdivision of a county, and was measured
by either population or number of villages. (Oldham ―The Origins of the Special
Jury‖ (1983) 50 University of Chicago LR 137 at 165).
41
As per Belknap J in Wike v Gernon (1374) Y.B. 48 Edw. III. 30, 17; s.c. Lib. Ass.
48,5; ―In an assize in this county, if the court does not see six, or at least five,
men of the hundred where the tenements are, to inform the others who are further
away, I say that the assize will not be taken…those of one county cannot try a
thing which is another county. Cited in Thayer A Preliminary Treatise on Evidence
at the Common Law (Reprint of the 1898 edition, Rothman Reprints Inc &
Augustus M Kelley Publishers, New Jersey & New York, 1969) at 91.
42
Mitnick ―From Neighbour-Witness to Judge of Proofs: The Transformation of the
English Civil Juror‖ 32 (1988) Am. J. Legal Hist. 201 at 204.
43
Holdsworth A History of English Law (2nd ed Methuen & Co Ltd 1945) at 333-
334.
44
For a discussion of the evolution from a jury of witnesses to a jury of fact-finders
see; Mitnick ―From Neighbour-Witness to Judge of Proofs: The Transformation of
the English Civil Juror‖ 32 (1988) Am. J. Legal Hist. 201.
45
Sward ―A History of the Civil Trial in the United States‖ (2003) 51 Kan. LR 347 at
354.

15
1.29 Gradually, however, parties were allowed to nominate witnesses to
testify publicly in court, and as a result of this development of formal witness
testimony, along with clearer rules of evidence and procedure, the number of
hundredors required declined through a series of statutes46 until the requirement
was abolished completely for civil cases in 1705.47 Eventually, the same result
was worked out in practice for criminal cases.48
(3) All Female Juries
1.30 Another early example of a special jury was the jury of matrons de
ventre inspiciendo. These were all-female juries commissioned to investigate
women in issues relating to disputed pregnancy and in paternity disputes. Such
disputes were common in criminal cases, as a woman found guilty of a capital
crime was entitled to have the death sentence delayed if she could show that
she was pregnant until the child was born. In theory, on birth, the punishment of
the defendant could then be carried out but in practice, due to the costs of
rearing the newborn, the mother was often subsequently pardoned. 49 As
Lambard put it,
―[a female defendant was entitled to] have (for once onely) the benefit
of her belly, if it be found by women thereto appointed that she is with
child.‖50

46 th
In the 14 century six hundredors were required to be empanelled on the jury (13
th
Edw. 3, ch. 4 (1360), in the 15 century only four hundredors were required (J.
th
Fortescue De Laudibus Legum Angliae ch. 25 A. Amos ed. 1825)) and in the 16
century this number had dropped to only two hundredors being required (35 Hen.
8 ch. 6, § 6 III (4) (1543); 27 Eliz., ch. 6 § 5 (1585) Cited in Mitnick ―From
Neighbour-Witness to Judge of Proofs: The Transformation of the English Civil
Juror‖ 32 (1988) Am. J. Legal Hist. 201 at 205 fn. 22.
47
An Act for the Amendment of the Law and Better Advancement of Justice, 4 & 5
Anne, ch. 16, § 6 (1705) Cited in: Oldham ―The Origins of the Special Jury‖
(1983) 50 University of Chicago LR 137 at 165 fn. 149.
48
Thayer A Preliminary Treatise on Evidence at the Common Law (Reprint of the
1898 edition, Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey
& New York, 1969) at 91.
49 th th
Old Bailey Online ―Punishments at the Old Bailey – Late 17 Century to Early 19
Century‖ available at
http://www.oldbaileyonline.org/history/crime/punishment.html.
50
Lambard Eirenarcha 555 (London 1614) Cited in Oldham ―The Origins of the
Special Jury‖ (1983) 50 University of Chicago LR 137 at 171.

16
1.31 In order to determine if the defendant was pregnant, the court would
empanel an all-female jury under a writ de ventre inspiciendo, a writ to ‗inspect
the belly.‘ The jury would be sworn in51 and would then be led to a chamber
where they would search and inspect the defendant. The jury would
subsequently return a verdict declaring whether or not she was ‗quick with
child.‘52
1.32 If the jury found that she was pregnant, the court would stay her
punishment until the next assize. Oldham reports that there is evidence that
‗pleading her belly‘ was a common phenomenon among female criminal
defendants.53 However, the defendant would only be entitled to such a reprieve
once only. As Blackstone reasons:
―But if she once hath had the benefit of this reprieve, and been
delivered, and afterwards becomes pregnant again, she shall not be
entitled to the benefit of a further respite for that cause. For she may
now be executed before the child is quick in the womb; and shall not,
by her own incontinence, evade the sentence of justice.‖54
1.33 The writ was also occasionally used in civil cases. Blackstone
explains that a jury de ventre inspiciendo would be empanelled in situations
where a widow ―feigns herself with child, in order to exclude the next heir, and a
suppositious birth is suspect to be intended.‖55

51
The Clerk of Assize would issue them with the following oath: ―You as [matrons]
of this Jury shall swear that you shall search and try the Prisoner at the Bar,
whether she be quick with Child of a quick Child, and thereof a true Verdict shall
return according to the best of your judgment; so help you God.‖ (The Office of
the Clerk of Assize (London 1682 ed.) (1st ed. London 1660) cited in: Oldham
―The Origins of the Special Jury‖ (1983) 50 University of Chicago LR 137 at 171.
52
Blackstone notes that the required verdict was quick with child, meaning that the
pregnancy was sufficiently advanced. ―For barely with child, unless it be alive in
the womb, is not sufficient.‖ (Blackstone Commentaries on the Laws of England
Vol. IX (A Facsimile of the First Edition 1769 University of Chicago Press) Book
IV, Ch. 31 at 360.
53
Oldham ―The Origins of the Special Jury‖ (1983) 50 University of Chicago LR 137
at fn. 190.
54
Blackstone Commentaries on the Laws of England Vol IX (A Facsimile of the First
Edition 1769 University of Chicago Press) Book IV, Ch. 31 at 388.
55
Blackstone Commentaries on the Laws of England Vol IX (A Facsimile of the First
Edition 1769 University of Chicago Press) Book Iii, Ch. 23 at 362.

17
(4) Juries of Foreigners
1.34 The trial of ‗aliens or foreigners‘ also historically gave rise to a
specially constituted jury, the jury of the half tongue, or de medietate linguae,
although this type of jury was not technically designated as ‗special.‘ 56
1.35 A writ de medietate linguae provided that in trials where the
defendant was a foreigner, half the jury could be empanelled from juries
consisting of half denizens and half foreigners, so that the trial would be more
impartial.57 Thayer argues that the reasoning behind the jury de medietate
linguae, which was commonly referred to as the party jury, were considerations
of policy and fair dealing, rather than on a wish to provide a well-informed or
expert jury.58
1.36 The jury de medietate linguae in fact originated in the treatment of
the Jews in medieval England. In 1190, a charter given by King Richard I
allowed all Jews - who were considered resident foreigners rather than British
subjects - to be tried before a half Jewish jury.59 A century later, after the
expulsion of the Jews from England, foreign merchants took over their role as
the primary commercial class. As a result, at common law the right of these
common merchants to be tried by a jury half composed of their own countrymen
began to develop.
1.37 The right was built on in a number of statutes culminating in a statute
of 1354 which codified the right to a half foreign jury where one party was a
foreigner, and an entirely foreign jury where both parties were foreigners, in
both civil and criminal trials.60 Although the right was reaffirmed a century later,
the party jury gradually began to decline and was banned outright in the

56
Robinson ―A Historical and Comparative Perspective on the Common Law Jury‖
in Vidmar (Ed) World Jury Systems (Oxford University Press 2000) at 23.
57
Blackstone Commentaries on the Laws of England Vol IX (A Facsimile of the First
Edition 1769 University of Chicago Press) Book III, Ch. 23 at 360.
58
Thayer A Preliminary Treatise on Evidence at the Common Law (Reprint of the
1898 edition, Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey
& New York, 1969) at 94 fn. 4.
59
Ramirez ―The Mixed Jury and the Ancient Custom of Trial by Jury de Medietate
Linguae: A History and a Proposal for Change‖ (1994) 74 B.U.L. Rev. 777 at 783-
784.
60
Statute 28 Edw. III. c. 18 See: Blackstone Commentaries on the Laws of England
Vol IX (A Facsimile of the First Edition 1769 University of Chicago Press) Book III,
Ch. 23 at 360.

18
Naturalisation Act 1870,61 as it was no longer perceived that this was the best
way to ensure that the trial was fair.
(5) Juries of Merchants & Other Professionals
1.38 The use of special juries was also a common occurrence in trade
th
disputes in the city of London from as early as the 1300s. Throughout the 14
th
and 15 Centuries, it was often the case that supervisors of the different guilds
would bring cases before the mayor against those who were alleged to have
committed serious breaches of the trade regulations. The mayor would
subsequently summon a jury composed of men of the particular trade in
question who would decide if there had been a breach of the trade regulations.
The mayor would then impose sentence based on this decision. 62 Examples of
breaches of trade regulations include fishing with meshes smaller than those
required, improper tanning of hides, improper hats and caps, false tapestry and
false wine.63
1.39 As well as guild supervisors bringing grievances to the mayor, it also
often occurred at this time that private persons, individually or through the public
prosecutor, would bring complaints that they were mistreated by a trader, for
example that they were sold putrid meat or bad wine. Here also men in the
same trade as the accused, and who were knowledgeable about the facts of the
case, would be summonsed to give their decision, which the mayor then used in
sentencing.64
1.40 There are many examples of cases over the centuries that followed
which reveal the willingness of the court to allow juries to be specially
constituted of members of certain trades or professions where it was considered

61
Naturalization Act of 1870, 33 & 34 Vict., ch. 14, 5 (Eng.) Cited in Ramirez ―The
Mixed Jury and the Ancient Custom of Trial by Jury de Medietate Linguae: A
History and a Proposal for Change‖ (1994) 74 B.U.L. Rev. 787.
62
Hand ―Historical and Practical Considerations Regarding Expert Testimony‖
(1901) 15 Harvard LR 40 at 41.
63
These and other examples of cases can been see in Riley Memorials of London
th th th
and London Life in the 13 , 14 and 15 Centuries (Longmans Green & Co 1868)
(Cited in Hand ―Historical and Practical Considerations Regarding Expert
Testimony‖ (1901) 15 Harvard LR 40 at 41 fn. 2).
64
Hand ―Historical and Practical Considerations Regarding Expert Testimony‖
(1901) 15 Harvard LR 40 at 41.

19
necessary. Oldham cites Sayles early King‘s Bench cases 65 where juries of
clerks and attorneys were empanelled in cases dealing with such issues as
falsification of writs by attorneys or extortion by court officials. These expert
juries of enquiry became more frequent as time went on as the problem of
corrupt behaviour of court officers persisted. 66
th
1.41 In 18 century London, largely under the auspices of Lord Mansfield,
the aid of merchant juries was more and more frequently invoked. This had a
significant contribution on the development of a body of commercial law. 67
Legislation was enacted to provide for the use of special juries wherever they
were requested by the parties or were considered necessary. 68 Such juries were
very commonly used in insurance cases, or cases involving bankers‘ customs,
as it was considered that the special jurors‘ experience provided a helpful
source of knowledge and expertise for the court and the parties to the case. 69
1.42 However, such juries were not only commonly used at this time within
the commercial field; they were also widely used in business disputes such as
bankruptcy and debt, as well as a broad range of criminal and civil actions such
as libel, slander, conspiracy, criminal conversation, bribery, trespass, assault,
assumpsit, trover, replevin, debt, mandamus, actions for ejectment, actions
upon bills of exchange, and bonds.70
(6) The Decline of the Special Jury
th
1.43 By the mid 19 century, special juries were being requested by
parties not to provide specialist knowledge, but to ensure a higher class of juror
than would otherwise appear, and special juries were available wherever a

65
Sayles (ed) Select Cases in the Court of King’s Bench Volume VI Edward III
1314-1377 (1965 Selden Society) Cited in Oldham ―The Origins of the Special
Jury‖ (1983) 50 University of Chicago LR 137 at fn. 215.
66
Oldham ―The Origins of the Special Jury‖ (1983) 50 University of Chicago LR 137
at 175.
67
Oldham ―Special Juries in England: Nineteenth Century Usage and Reform‖
Journal of Legal History 148.
68
English Jury Act 1730 3 Geo. II, Cap. 25, 1730 (Cited in Oldham ―Special Juries
in England: Nineteenth Century Usage and Reform‖ Journal of Legal History 151
fn. 18).
69
Oldham ―Special Juries in England: Nineteenth Century Usage and Reform‖
Journal of Legal History 148 at 149.
70
For examples of these cases where special juries were utilised see Howlin
―Special Juries: A Solution to the Expert Witness?‖ (2004) 12 ISLR 19 at 39-40 fn.
165-179.

20
party was willing to pay for it.71 As Sir William Erle commented while testifying
before the Select Committee on Special and Common Juries of the House of
Commons which was set up to examine the function of juries:
―I believe the intention of the Legislature has been departed from,
and to my mind a very pernicious custom has been introduced,
whereby the right to resort to a special jury has been so given as to
foster the notion of there being class prejudices pervading the jury
box, and that a party wanting to rely on a certain class of prejudice,
would take one jury, or the other accordingly.‖ 72
1.44 Further allegations of corruption and abuse of the special jury system
emerged around this time, for example a scathing review by Jeremy Bentham
on Jury Packing. In this, he referred to special juries as ―an engine of
corruption,‖ and ―the Guinea Trade,‖ and called special jurors ―Guineamen,‖ a
reference to the fact that a successful profession could be made as a juryman
as they were paid one guinea per case (in sharp contrast with the shilling or
eightpence paid to common jurors).73
1.45 A more caustic description given to special jurymen was ―Guinea
pigs,‖ which highlights the underlying feeling that the authorities were capable of
manipulating the selection process to ensure that only chosen men formed the
panel of jurors. 74
1.46 Another problem that was increasingly recognised at the end of the
th
19 century is the fact that the special jury system was being abused where a
defendant sought to delay the trial or gain more time. The defendant would

71
Oldham ―Special Juries in England: Nineteenth Century Usage and Reform‖
Journal of Legal History 148 at 151.
72
Minutes of Evidence, Select Committee on Special and Common Juries, 7 July
1868, at 47 (Cited in: Oldham ―Special Juries in England: Nineteenth Century
Usage and Reform‖ Journal of Legal History 148 at 151).
73
Bentham The Elements of the Art of Packing, as Applied to Special Juries,
Particularly in Cases of Libel Law (Effingham Wilson 1821) at Ch. 4 § 4 Available
at: http://www.constitution.org/jb/packing.htm
74
As per John Horne in R v Horne 20 State Trials 651, 687 (1777) ―The special
jurors…are qualified by the crown; they are esquired by the crown; and these
crown esquires always attend upon the special juries…The Solicitor of the
Treasury, who is constantly in this employ of striking special juries, knows all the
men, their sentiments, their descriptions, and the distinction of men.‖ (Cited in:
Oldham ―Special Juries in England: Nineteenth Century Usage and Reform‖
Journal of Legal History 148 at 153).

21
obtain a rule for a special jury, and this effectively resulted in the trial being
postponed.75
1.47 Two major statutory reforms were enacted to address these
criticisms. The County Juries Act 1825,76 sought to enhance the qualifications
and quality of special jurors by requiring them to be merchants, bankers,
esquires, or persons of higher degree, however, the absence of an express
definition of these terms led to inconsistent and discretionary application of the
Act‘s provisions in different localities. 77 The act also set up a system of
anonymous balloting for the selection of jurymen in order to address criticisms
about jury packing.78
1.48 The Juries Act 187079 further attempted to redeem the special jury
system by establishing further procedural rules for special jurors, 80 and by
altering the qualification requirements of special jurors.81 However, despite
these attempted reforms, the special jury‘s popularity continued to decline, and
in the Juries Act 1949 it was abolished in England in all but the very narrowest
category of cases.82

75
Oldham ―Special Juries in England: Nineteenth Century Usage and Reform‖
Journal of Legal History 148 at 158-9.
76
6 Geo IV, Cap. 50, section 31-32.
77
To compensate for the lack of definition, the Juries Act (Ireland)1867 was
introduced, section 14 of which set out a list of all persons capable of sitting on an
expert jury in Ireland. The list included ―the sons of Peers, Baronets, Knights and
Magistrates, persons who had served the office of Sheriff of Grand Juror,
bankers, wholesale merchants who did not carry out any retail trade; traders who
were possessed of personal property of the value of £5000, and the sons of such
persons.‖ (Howlin ―Special Juries: A Solution to the Expert Witness?‖ (2004) 12
ISLR 19 at 38).
78
6 Geo IV, c. 50, section 31. Cited in; Oldham ―Special Juries in England:
Nineteenth Century Usage and Reform‖ Journal of Legal History 148 at 155.
79
33 & 34 Vict. Cap. 77 Cited in; Oldham ―Special Juries in England: Nineteenth
Century Usage and Reform‖ Journal of Legal History 148 at 159.
80
33 & 34 Vict. Cap. 77 sections 11-15, 17, 19.
81
33 & 34 Vict. Cap. 77 section 6.
82
Juries Act 1949, 12 & 13 Geo. 6, Ch. 27 sections 18-19. The remaining exception
was the City of London Special Jury, which was eventually abolished in 1971 in
the Courts Act 1971 Ch. 23, Para 42.

22
1.49 The abandonment of the special jury occurred earlier in this
jurisdiction, as section 66 of the Juries Act 1927 provided for the abolition of the
two-tiered system of jurors.83

D Court Assessors
1.50 An alternative to enlisting the aid of a special jury that has been used
over the centuries by common law courts, most commonly in admiralty cases,
was the use of court assessors, or advisors. The purpose of this was to give the
court specialist experience, skill or knowledge which it might not normally
possess.84 A concise definition is provided by Dickey who describes a court
assessor as:
―[A] person who, by virtue of some special skill, knowledge or
experience he possesses, sits with a judge during judicial
proceedings in order to answer any questions which might be put to
him by the judge on the subject in which he is an assessor.‖85
1.51 The use of assessors originated in the admiralty courts, and the
th
earliest reported example dates from the 16 century.86 Although there are
examples of other courts enlisting the aid of assessors, they were most
frequently invoked in nautical proceedings. Statutory provisions remain in force
which allow for the appointment of court assessors in court proceedings
generally87 but their actual use, outside nautical proceedings, appears to be
limited to patents cases and railway investigations.

83
Section 66 of the Juries Act 1927 states: ―(1) On the passing of this Act every
provision in any statute, order, rule of court, or other enactment whereby any
person is entitled either generally or in particular circumstances to a special jury
shall cease to have effect. (2) Every reference in any statute, order, rule of court,
or other enactment not repealed or terminated by this Act to a special jury or to a
common jury shall be construed and have effect as a reference to a jury under
this Act.‖
84
Dickey ―The Province and Function of Assessors in English Courts‖ (1970) 33
MLR 494.
85
Dickey ―The Province and Function of Assessors in English Courts‖ (1970) 33
MLR 494 at 501.
86
Re Rumney and Wood (1541), Selden Society, Vol. 6, 102 (Cited in Dickey ―The
Province and Function of Assessors in English Courts‖ (1970) 33 MLR 494).
87
Thus, section 59 of the Supreme Court of Judicature (Ireland) Act 1877 provides
for the use of assessors in the High Court and Order 36, rule 41 of the Rules of
the Superior Courts 1986 provides for their appointment ―in such manner and

23
1.52 There were many similarities between a court assessor and an
expert witness, as the function of both is to furnish the court with specialist
knowledge and information in areas in which they are particularly skilled.
Indeed, in some cases assessors were referred to as witnesses, and the
information they provide as evidence, a practice that was criticised by Viscount
Simons L.C. in Richardson v Redpath, Brown & Co Ltd.88
―To treat…any assessor, as though he were an unsworn witness in a
special confidence of the judge, whose testimony cannot be
challenged by cross-examination and perhaps cannot even be fully
appreciated by the parties until judgment is given, is to
misunderstand what the true functions of assessors are. He is an
expert available for the judge to consult if the judge requires
assistance in understanding the effect and meaning of technical
evidence.‖
1.53 This demonstrates that the problem with referring to assessors as
witnesses is that key differences existed in reality in the way the two carried out
their role and duties. Expert witnesses were appointed and remunerated by the
parties whereas assessors were appointed by the court and remuneration
depended on the governing statute or the discretion of the court. Furthermore,
assessors were not witnesses and so were not sworn and were not subject to
cross examination.
1.54 Another difference lies in the fact that assessors are required to
furnish the court with advice, in private, to enable it to make its decision, not to
bolster the arguments of a party. Therefore, they are not concerned with the

upon such terms as the court shall direct.‖ Similarly, under Section 95 of the
Patents Act 1992, in patents litigation the court may appoint a specially qualified
assessor if it thinks fit, and try the case wholly or partially with his or her
assistance. Under section 64 of the Railway Safety Act 1995, an assessor may
be called to assist the court of inquiry set up to investigate railway incidents. In
the context of admiralty, under section 38 of the Merchants Shipping
(Investigation of Marine Casualties) Act 2000, assessors can be enlisted to assist
the court in inquiries to investigate marine casualties, and under section 73 of the
Harbours Act 1996 assessors can be recruited if needed where an inquiry has
been set up in relation to the revocation or suspension of a pilot‘s license. Section
2 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 provides for the
use of assessors in tribunals of inquiry. Section 15 of the Comptroller and Auditor
General and Committees of the Houses of the Oireachtas (Special Provisions)
Act 1998 provided that the Committee could appoint an assessor if needed for the
performance of its functions.
88
[1944] A.C. 62.

24
weight or balance of evidence, and should not be asked to decide on the
issues.89 The distinction between the two is supported by the rule, recognised in
th
a number of English cases throughout the 18 century, that expert evidence
cannot be adduced on a matter within the scope of knowledge and experience
of assessors assisting the court.90
1.55 Although it appears that there is considerable value attached to the
th
role of assessors, unease was expressed in a number of cases in the 19
91
century with their function. Regardless of the advice given, it is still the
function of the judge to decide on the issues, but increasing concern began to
be raised that judges might not fully appreciate this fact and might attach undue
importance to the assessors‘ views. In The Beryl92 case Brett L.J. stated, in the
context of nautical proceedings:
―The assessors who assist the judge take no part in the judgment
whatsoever: they are not responsible for it, and have nothing to do
with it. They are there for the purpose of assisting the judge by
answering any question, as to the facts which arise, of nautical skill.‖
However, later on he recognised the reality that:
―Still, it would be impertinent in a judge not to consider as almost
binding upon him the opinion of the nautical gentlemen who, having
ten times his own skill, are called to assist him.‖93
1.56 The perceived danger that a process whereby a judge receives
undisclosed specialised knowledge or advice from an assessor whose is under
no obligation to disclose the advice given to the judge could lead to an effective
transfer of the decision making function from judge to assessor, might well
account for the general decline in the use of court assessors. Today, they are
most frequently appointed in nautical proceedings and their use elsewhere is
limited.

89
Dickey ―The Province and Function of Assessors in English Courts‖ (1970) 33
MLR 494 at 501, 504.
90
The Gazelle (1842) 1 Wm. Rob 471, 474; 166 E.R. 648, 649; Saul v St. Andrew's
Steam Fishing Co Ltd, The St. Chad [1965] Lloyd‘s Rep 1 (CA).
91
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
at 2.14.
92
(1884) 9 P.D. 137.
93
(1884) 9 P.D. 137 at 141.

25
E Court Experts and Expert Witnesses
1.57 The use of special juries declined in the early 20th century and the
use of expert witnesses, who were summoned to give advice to the court,
greatly increased. However, expert witnesses first made tentative appearances
much earlier than this.
1.58 There are many examples of cases dating from as far back as the
th
14 century where skilled persons were summoned to assist the court and, as
is evident, when later on concrete rules of evidence were being developed and
enforced, the use of expert witnesses continued despite the rule prohibiting
opinion evidence.
1.59 Initially, the court itself would summon skilled persons to assist it in
deciding on a question of fact where it did not possess the requisite knowledge.
As early as 1345, in an appeal of mayhem,94 the court enlisted the aid of
experts when surgeons from London were summoned. 95 Here, the question to
be decided by the court was if the appellant should be entitled to bring a case
before them, a question which hinged on whether or not his wound was fresh,
and thus whether it amounted to a mayhem.96
1.60 Similarly in 1494 ‗masters of grammar,‘ were summoned to explain
the meaning of a Latin word to help construe a bond 97 and in 1554 the court in
Buckley v Rice-Thomas98 confirmed that in the context of the case at hand it
should be permissible for the court to call grammarians where its own Latin was
lacking.99 Saunders J used the opportunity to give a general statement on when
the use of experts might be accepted:

94
A mayhem was a common law offence which consisted of the intentional removal
of a body part needed by the person to engage in combat.
95
(1345) Anonymous, Lib. Ass. 28 pl. 5 (28 Ed. III) Cited in Holdsworth A History of
English Law Vo. 10 (2nd ed Methuen & Co Ltd 1945) at 212.
96
Holdsworth A History of English Law Vo. 10 (2nd ed Methuen & Co Ltd 1945) at
212.
97
(1494) Anonymous 21 H. VII. 33 pl. 30 Cited in Hand ―Historical and Practical
Considerations Regarding Expert Testimony‖ (1901) 15 Harvard LR 40 at 43 fn.
2.
98
(1554) Plowden 124; 75 ER 182.
99
In this case the question arose about the true meaning of the Latin word ‗licet,‘ as
the defendant claimed that the use of this word made the plaintiff‘s allegations
uncertain. It was argued that the word ‗licet‘ is ―not an allegation in fact….but is
only an argumentative allegation‖ Staunford J held; ―In order to understand it

26
 ―If matters arise in our law which concern other sciences or faculties,
we commonly apply for the aid of that science or faculty which it
concerns. Which is an honourable and commendable thing in our
law. For thereby it appears that we do not despise all other sciences
but our own, but we approve of them and encourage them as things
worthy of commendation.‖ 100
1.61 To further this argument, Saunders J cites earlier examples of cases
where the court enlisted the aid of experts in coming to its decision. Amongst
these:
―….a case where excommengement was pleaded against one, and
the party said he ought not to be disabled thereby, because there
was an appeal pending thereof, there the Judges enquired of them
that were well versed in the canon law touching the force thereof‖ 101
1.62 This demonstrates that the practice at this time was for the court,
rather than the parties to call the experts. Holdsworth explains that experts at
this time were more in the kin of ―expert assistants to the court‖ than witnesses
called by the parties, which ―naturally prevented any question from being raised
as to their information in the aspect of testimony to the jury.‖ 102
1.63 Therefore while the court enlisted the aid of experts, they were not
expert witnesses in the modern sense, because as Rosenthal argues, ―We can
look for the expert witnesses only when proof of facts by witnesses, rather than
by the personal knowledge of the tribunal, becomes accepted.‖ 103
1.64 In 1562 the Statute of Elizabeth was passed which compelled
witnesses to appear in court.104 This greatly contributed to the development of

truly, being a Latin word, we ought to follow the steps of our predecessors Judges
of the law, who, when they were in doubt about the meaning of any Latin words,
enquired how those that were skilled in the study thereof took them, and pursued
their construction‖ (Per Staunford J Buckley v Rice Thomas (1554) Plowden 124;
75 ER at 189).
100
Per Saunders J. Buckley v Rice Thomas [1554] Plowden 124; 75 ER at 192.
101
Buckley v Rice Thomas (1554) Plowden 124; 75 ER at 193.
102
Holdsworth A History of English Law Vol. 10 (2nd ed Methuen & Co Ltd 1945) at
212.
103
Rosenthal “The Development of the Use of Expert Testimony‖ (1935) 2 (4) Law
and Contemporary Problems at 408.
104
Act of 1562-1563, 5 Eliz. Ch. 9 Paragraph 12 of this Act imposed a penalty of ten
pounds on any person who refused to attend when served with compulsory
process to testify, and created a private cause of action against the reluctant

27
the modern system of deciding the case on the basis of the testimony by
th
witnesses before the jury and by the mid 17 century, a clearer distinction could
th
be made between jurors and witnesses. By the 18 century the adversarial
system and the concept of proof by witnesses before the jury had firmly taken
shape.

F Theory and Nature of the Opinion Rule

th
1.65 As mentioned above, by the end of the 18 century, once the notion
that parties were responsible for their own proof in court had taken hold, they
began to gain more control over production of evidence and examination of
witnesses in court, and a considerable body of evidence law had been
developed.105 A number of exclusionary rules developed to govern the content
and presentation of evidence before the jury, most notably the rule against
hearsay, which sought to limit witness testimony to that based on personal
observation, and the opinion rule, which sought to control the way in which
witnesses gave their testimony. 106
1.66 The opinion rule remains one of the chief exclusionary rules of
evidence today and provides that witness testimony in the form of opinion or
inference is inadmissible in both civil and criminal proceedings, and witnesses
are confined to giving evidence of facts. The doctrine was in fact summarised
as early as 1651 by Vaughan C.J. in Bushell's Case;107
―The verdict of a Jury and Evidence of a Witness are very different
things, in the truth and falsehood of them; a Witness swears but to
what he hath heard or seen, generally or more largely, to what hath
fallen under his senses. But a Juryman swears as to what he can
inferr and conclude from the Testimony of such Witnesses by the act
and force of the Understanding, to be the Fact inquired after, which
differs nothing in the Reason, though much in the punishment, from

witness in favour of "the party grieved" for the "loss and hindrance that the party
which procured the said process shall sustain, by reason of the non-appearance
of the said witness.‖ (Cited in Wasserman ―The Subpoena Power: Pennoyer‘s
Last Vestige‖ (1989) 73 Minn. L. Rev. 37).
105
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 9.
106
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 10.
107
(1671) Vaughan, 142, 22 Car. 2. Cited in Hand ―Historical and Practical
Considerations Regarding Expert Testimony‖ (1901) 15 Harvard LR 40 at 44-45.

28
 what a Judge, out of various cases consider‘d by him, inferrs to be
the Law in the Question before him.‖
th
1.67 Wigmore argues that in the 18 century when the rule began to
develop, it was concerned with testimonial qualifications and so sought to
ensure that only ‗men of science‘ would testify on ‗matters of science.‘ 108
However, nowadays the primary rationale for the rule is that it prevents
witnesses from usurping the role of the tribunal of fact whose job it is to make
inferences and reach conclusions on the basis of facts placed before them. As
per Kingsmill Moore J in the more recent case of AG (Ruddy) v Kenny:109
―It is a long standing rule of our law of evidence that, with certain
exceptions, a witness may not express an opinion as to a fact in
issue...It is for the tribunal of fact – judge or jury as the case may be
– to draw inferences of fact, form opinions and come to
conclusions.‖110
1.68 Wigmore contends that a related purpose of the rule is to ensure that
unnecessary testimony is not placed before the jury, as he explained:
―[w]herever inferences and conclusions can be drawn by the jury as
well as the witness, the witness is superfluous.‖ 111
1.69 The opinion of an ordinary witness is thus seen as having no useful
bearing on the case. This rationale was also referred to by Kingsmill Moore J in
AG (Ruddy) v Kenny,112 where he explained that the rule ensures that possible
hazards such as ―prejudice, faulty reasoning and inadequate knowledge,‖ which
might be introduced if a witness were allowed to give opinion evidence, are
avoided.113
1.70 The development in the exclusionary rule of opinion evidence in the
th
18 century was accompanied by the simultaneous development of a wide
exception to the rule in favour of expert witnesses. It can be seen that the

108
Wigmore A Treatise on the Anglo-American System of Evidence in Trial at
Common Law (3rd edition, Little Brown and Company, Boston, 1940) Vol. VII at
§1918.
109
(1960) 94 I. L.T.R. 185.
110
AG (Ruddy) v Kenny (1960) 94 I. L.T.R. 185 at 190.
111
Wigmore A Treatise on the Anglo-American System of Evidence in Trial at
Common Law (3rd edition, Little Brown and Company, Boston, 1940) Vol. VII at
§1918.
112
(1960) 94 I. L.T.R. 185.
113
(1960) 94 I. L.T.R. 185 at 190.

29
‗expert witness‘ developed as an exception to the developing adversarial
structure, as according to Golan, it was ―the only type of witness the new
system could not rationalise under its evolving doctrines.‖ 114
1.71 Expert witnesses became a distinct legal entity from other witnesses,
as they were not required to observe the facts of the case personally in order to
be permitted to give an opinion on them in court. 115 In the absence of any other
legal test, the opinion rule therefore provides the principal legal distinction
between ordinary and expert witnesses.116
1.72 This exception to the opinion rule in favour of experts is well
th
evidenced by examples from the late 17 century onwards where experts were
permitted to give testimony of their conclusions to the jury. For example in
Alsopp v Bowtrell117 the jury accepted the testimony of physicians who argued in
a disputed legitimacy case that a child born forty weeks and nine days after the
death of the mother‘s husband could well be his child, as the birth could have
been delayed by ill usage and lack of strength.
1.73 In the Witches Case118 a doctor summoned to testify clearly believed
the accused persons were witches and supported this belief with a scientific
explanation of the fits they underwent. However, it is not clear from the
judgment who called the doctor to testify.119
1.74 In the 1678 murder trial R v Pembroke120 physicians were called by
both sides to testify as to the real cause of the deceased‘s death and as to
whether or not a man can die of his wounds without fever. Hand points out that
the only striking feature of this case is that at no stage in the course of
proceedings was the giving of such testimony seen as unusual.121 This implies

114
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 10.
115
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 10.
116
Rosenthal “The Development of the Use of Expert Testimony‖ (1935) 2 (4) Law
and Contemporary Problems at 412.
117
(1620) Cro. Jac. 541.
118
(1665) 6 Howell, State Trials, 687.
119
Rosenthal “The Development of the Use of Expert Testimony‖ (1935) 2 (4) Law
and Contemporary Problems at 409.
120
(1678) Ib. 1337, 1228, 1340, 1341.
121
Hand ―Historical and Practical Considerations Regarding Expert Testimony‖
(1901) 15 Harvard LR 40 at 46.

30
that the giving of opinion evidence by experts was by this stage an accepted
exception to the rule against opinions.
1.75 Similarly, in a case from the following year, R v Greene,122 a
physician was summoned by the prosecution to support the theory that the
victim‘s death could not have been caused by wounds on his body as there was
no blood and that he must have therefore died of strangulation.
th
1.76 There are several cases dating from the 18 century which show that
by then the practice of giving expert testimony was well settled and accepted. 123
However, the rules of evidence also began to be more strictly enforced,
including the general rule excluding the opinion of witnesses who were not
experts.
1.77 This was emphasised in R v Heath124 a perjury case where the
defendant swore that Lady Altham had never had a child. In the course of
proceedings, a witness, who had testified he had seen Lady Altham with ―a big
belly‖ was asked ―what do you apprehend became of that big belly?‖ The court
stressed that the opinion of a witness can only be given where it is the best
evidence available in the case, highlighting the exclusionary nature of opinion
evidence.125
1.78 Similar developments took place in civil cases. Folkes v Chadd,126 is
regarded as the seminal precedent that established the admissibility of expert
testimony and confirmed that expert witnesses could testify directly to the jury

122
(1679) 7 Howell, State Trials, 185, 186.
123
See for example R v Kidd, (1701) 14 Howell, State Trials, 137; R v Blandy, (1744)
18 Howell, State Trials, 1138; Cited in; Hand ―Historical and Practical
Considerations Regarding Expert Testimony‖ (1901) 15 Harvard LR 40 at 48.
124
(1744) 18 Howell, State Trials, 70 Cited in Hand ―Historical and Practical
Considerations Regarding Expert Testimony‖ (1901) 15 Harvard LR 40 at 47 fn.
1.
125
Per Irish K.B., Marley C.J., Ward and Blennerhassett JJ.; ―The apprehension of a
witness is asked where no other evidence can be had in capital cases; as where
a witness is produced to prove a wound was given, he is asked whether he
apprehends that wound was the cause of death. That must be asked, for he
cannot tell otherwise. It is the best evidence that can be had in that case. But as
to a fact, if you make the apprehension of a witness necessary, it takes away all
proof of fact.‖ (R v Heath (1744) 18 Howell, State Trials, 70 at 76).
126
(1782) 3 Douglas 157.

31
as a witness for either party. 127 Here, a trespass action was taken against the
defendant for threatening to cut down an embankment erected by the plaintiffs
to prevent overflowing of the sea on to the plaintiff‘s land. The defendants
argued that they were justified and entitled to cut down the embankment as it
had caused the flooding of the harbour leading to extensive damage.
1.79 On appeal, Lord Mansfield ordered a new trial on the basis that the
testimony of a renowned engineer in favour of the plaintiffs, which amounted to
an opinion about the cause of the damage, should have been held admissible. It
had been argued that the testimony should be excluded as it ―was matter of
opinion, which could be no foundation for the verdict of the jury, which was to be
built entirely on facts, and not on opinions.‖ 128 This however was rejected by
Lord Mansfield who used this opportunity to outline the parameters of the
admissibility of expert testimony:
―It is objected that Mr. Smeaton is going to speak, not as to facts, but
as to opinion. That opinion, however, is deduced from facts which are
not disputed – the situation of banks, the course of tides and of winds
and the shifting of the sands….The question then depends on the
evidence of those who understand such matters; and when such
questions come before me, I always send for some of the brethren of
the Trinity House.129 I cannot believe that where the question is,
whether a defect arises from a natural or artificial cause, the opinions
of men of science are not to be received….the cause of the decay of
the harbour is also a matter of science, and still more so, whether the
removal of the bank can be beneficial. Therefore we are of the
opinion that his judgment, formed on the facts, was very proper
evidence.‖130
1.80 The development of the opinion rule gave rise to another related rule
of evidence namely the requirement for a hypothetical question where the
expert has not observed the facts at issue himself. This limits the questions that

127
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 11.
128
Folkes v Chadd (1782) 3 Douglas 157 at 159.
129
Trinity House is a still-existing corporation that is concerned with the safety of
shipping and the well-being of sea-farers. It is thought to have originated in a
1514 by Charter of King Henry VIII to a fraternity of mariners ―so that they might
regulate the pilotage of ships in the King's streams.‖ (Ruddock ―The Trinity House
at Deptford in the Sixteenth Century‖ (1950) 65(257) The English Historical
Review 458).
130
Folkes v Chadd (1782) 3 Douglas 157 at 159.

32
can be asked of the expert where he does not have personal observation, and
provides a means for the jury to test the opinion by explaining the grounds for
the opinion.131
1.81 The hypothetical question requirement is first to be seen in cases
th th
from the late 17 and early 18 century when the distinction between ‗opinion‘
and ‗fact‘ became more clear. Hand cites the celebrated murder case of
Spencer Cowper132 where the question arose whether the deceased had been
drowned and where surgeons and sailors were enlisted to answer hypothetical
questions on the circumstances under which a deceased body would sink.
1.82 In the murder trial R v Ferrers133 the accused raised the defence of
insanity. To support this defence, a number of lay witnesses were called to
testify about the purported insane acts committed by the defendant.
Subsequently, a surgeon was called and asked if he would conclude based on
the facts and the testimony of the preceding witnesses, that the defendant was
insane. Pursuant to the Crown Counsel‘s objection to this line of questioning,
Lord Mansfield held that the defendant was not entitled to put such a general
question to the surgeon but that he could specify the specific facts, already
submitted in evidence, on which the surgeon would base his opinion, even
though the surgeon had not had firsthand experience of the purported acts of
the defendant.134
1.83 Similarly, in Beckwith v Sydebotham,135 Lord Ellenborough confirmed
that expert witnesses were entitled to be summoned, even where they had not
had firsthand experience with the facts of the issue. However, the point was
stressed that they were required to give their opinion on the basis of
hypothetical questions:
―As the truth of the facts stated to them was not certainly known, their
opinion might not go for much; but still it was admissible evidence.
The prejudice alluded to might be removed by asking them, in cross-
examination, what they should think upon the statement of facts
contended for the other side.‖136

131
Rosenthal “The Development of the Use of Expert Testimony Law and
Contemporary Problems‖ (1935) 2 (4) Expert Testimony at 414.
132
(1699) 13 Howell, State Trials, 1126-1135.
133
(1760) 19 Howell, State Trials, 924-944.
134
Hand ―Historical and Practical Considerations Regarding Expert Testimony‖
(1901) 15 Harvard LR 40 at 48.
135
1 Camp. 116.
136
Beckwith v Sydebotham 1 Camp. 116 at 116.

33
1.84 Much discussion on the issue was given in Mc'Naghten's Case137 in
1843 where the question arose if a medical expert could rule on the sanity of
the accused at the time of the crime from the testimony of the witnesses at the
trial, without having firsthand experience of the accused prior to the trial. The
majority of the Justices held that he could not be asked his opinion on such
issues, as explained by Tindal J:
―...because each of those questions involves a determination of the
truth of the facts deposed to, which it is for the jury to decide, and the
questions are not mere questions upon a matter of science, in which
case such evidence is admissible.‖ 138
1.85 Tindal J‘s judgment highlights that the requirement for hypothetical
questions has largely been motivated by a need to prevent the usurpation by
the expert of the jury‘s power and function to decide on the facts of the case.
However Wigmore argues that, beneficial as the hypothetical question rule is,
―Misused by the clumsy and abused by the clever, [it] has in practice
led to intolerable obstruction of truth.‖ 139

G A Growing Recognition of the Problems with Expert Testimony

1.86 The foregoing discussion demonstrates that the adversarial system
also had a significant effect on the manner in which experts gave their opinions
in court. Whereas previously experts were drafted in by and to be of assistance
th
to the court, from the 18 century onwards, as demonstrated by Folkes v
Chadd,140 experts began to be directly employed by the parties themselves to
help advance their respective cases. Golan explains that ―as the court assumed
a neutral position, free reign was increasingly given in the courtroom to partisan
views.‖141
1.87 However, decisions from this time show a considerable lack of
unease about the potential problems that could arise with the switch from court
appointed, independent and impartial expert advisors to partisan ‗experts for

137
(1843) 10 Cl. & Fin. 200.
138
Mc’Naghten’s Case (1843) 10 Cl. & Fin. 200 at 212.
139
Wigmore A Treatise on the Anglo-American System of Evidence in Trial at
Common Law (3rd edition, Little Brown and Company, Boston, 1940) Vol. VII at
§686.
140
(1782) 3 Douglas 157.
141
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 10.

34
hire.‘ For example in Folkes v Chadd,142 Lord Mansfield explained his decision
to allow the opinion of the expert engineer on the basis that ―the opinion of men
of science‖ can be of considerable value where the issue in question is ―a
matter of science.‖143 As such, he failed to refer to the fact that the particular
man of science in question had been specifically selected by one of the parties
to advance their case.
1.88 Golan argues that this shows little awareness of the potential
difficulties that might arise with partisan experts. 144 He points out that the failure
th
to identify potential problems proved unfortunate, as ―by the mid 19 century
partisan expert testimony become an acrimonious and persistent thorn in the
side of the common law.‖145
th
1.89 As the 19 century progressed, the growth and spread of industry
meant the types and quantity of expert witnesses appearing in trials had rapidly
increased. At the same time, an undercurrent of dissatisfaction with the expert
witness system had become stronger and its opponents louder.
1.90 In Severn, King and Company v Imperial Insurance Company 146 the
types of problems that could arise with expert testimony, such as conflicting
experts, became apparent. Here, the plaintiff‘s sugar factory had been
destroyed by fire and they took a civil case against the defendant insurance
company to recover their losses when the company refused to pay out
compensation. The defendants argued that they were entitled to refuse to pay
out as their contract with the plaintiffs had been rendered void by the fact that
the plaintiffs had, without informing the insurance company, introduced a new
method of sugar purification three months prior to the fire, and that this method
was considerably more dangerous than the previous method used.
1.91 At trial, the case essentially consisted of conflicting evidence from a
torrent of distinguished men of science on either side testifying as to the
dangers involved in the different methods of sugar refining, arguments backed

142
(1782) 3 Douglas 157.
143
Folkes v Chadd (1782) 3 Douglas 157 at 159.
144
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 13.
145
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 14.
146
The Times April 14, 1820.

35
up with contradictory definitions, observations and experiments and conflicting
evidence.147 According to Dallas CJ:
―[the experts] left the court in a state of utter uncertainty; and the two
days during which the results of their experiments had been brought
into comparison, were days not of triumph, but of humiliation to
science.‖148
1.92 The Times reported Dallas CJ‘s harsh criticism of the partisanship
and bias evident from the conflicting experimental evidence adduced by experts
on both sides:
―It must be a matter of general regret to find the respectable
witnesses to whom [Dallas CJ] was alluding drawn up, not on one
side, and for the maintenance of the same truths, but, as it were, in
martial and hostile array against each other.‖ 149
1.93 Similar criticisms were made about the practice of ‗shopping‘ for
partisan or biased experts by Jessell LJ in Thorn v Worthing Skating Rink Co:150
―A man may go, and does sometimes, to a half-a-dozen experts. I
have known it in cases of valuation within my own experience at the
Bar. He takes their honest opinions, he finds three in favour and
three against him; he says to the three in his favour, will you be kind
enough to give evidence? And he pays the three against him their
fees and leaves them alone: the other side does the same. It may not
be three out of six, it may be three out of fifty. I was told in one case,

147
After hearing two days of expert testimony the jury found in favour of the plaintiffs
and the insurance company appealed on the basis that the verdict had been
reached against the weight of the evidence. The court suspended the appeal until
suits against other insurance companies who had refused to pay out to the
plaintiffs had been settled. The next suit, against the Phoenix insurance company,
involved the same litany of experts and same amount of contradictory
experiments, and was also found in favour of the plaintiffs. No other trials were
reported. (Golan ―The History of Scientific Expert Testimony in the English
Courtroom‖ (1999) 12 Science in Context 7 at 20).
148
Severn, King and Company v Imperial Insurance Company The Times April 14,
1820.
149
Severn, King and Company v Imperial Insurance Company The Times April 14,
1820.
150
(1877) 6 Ch D 415.

36
 where a person wanted a certain thing done, that they went to sixty-
eight people before they found one.‖ 151
th
1.94 As these cases demonstrate, by the mid 19 century, judges were
increasingly critical of ‗expert shopping‘ and of those expert witnesses who
acted as partisan advocates for the party they represented manifested by the
experience of experts being in constant conflict. Experts employed in such
cases were highly paid, therefore, as Golan puts it:
―…their conduct was seen as the corruption of their science, of
selling its credibility to the higher bidder.‖ 152
1.95 Despite these criticisms, and despite numerous calls from both
members of the scientific and legal communities for reform of the system of
expert testimony to the effect that the expert witness would be employed
th
independently from the parties or as an advisor to the court itself, as the 19
century progressed the system remained one whereby clients could shop
around to find an expert who would give a suitable opinion. As Golan explains;
―The scandals were frequent, but they were generally justified by the
legal profession as a price worth paying in what was believed to be a
competitive free market of legal evidence that constituted both the
best mechanism of proof-testing and the best protection from abuse
of executive power.‖153
th
1.96 At the end of the 19 century therefore, the expert witness, in the
modern sense of the term, had become a key figure in court proceedings. As
we shall see in the following chapters, over time stricter admissibility and
procedural requirements have been applied to the system of expert testimony
which has helped to reduce the potential for abuse.
1.97 However, the historic analysis in this chapter reveals that the key
criticisms of expert testimony, still frequently raised today, have existed ever
since expert witnesses have been used in the courts and therefore this debate
is not a new but a considerably antiquated one.

151
Thorn v Worthing Skating Rink Co (1877) 6 Ch D 415.
152
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 20.
153
Golan ―The History of Scientific Expert Testimony in the English Courtroom‖
(1999) 12 Science in Context 7 at 24.

37
H Conclusion
1.98 Today, the opinion rule, which holds that witness testimony in the
form of opinion is inadmissible in both civil and criminal proceedings, and that
witnesses are confined to giving evidence of facts, is firmly entrenched in the
rules of evidence. As per Kingsmill Moore J in AG (Ruddy) v Kenny:154
―It is a long standing rule of our law of evidence that, with certain
exceptions, a witness may not express an opinion as to a fact in
issue...It is for the tribunal of fact – judge or jury as the case may be
– to draw inferences of fact, form opinions and come to
conclusions.‖155
1.99 The admissibility of expert evidence is the principal exception to the
rule. An opinion may be given by a witness who has expertise in a particular
area that is relevant to the issue at hand. The purpose of this exception is that
such evidence provides the judge or jury with the necessary specialist criteria
for testing the accuracy of their conclusions, and enables them to form their own
independent judgment by applying these criteria to the facts proven in
evidence.156
1.100 In order to adduce expert evidence, the party will need to prove that
the evidence is needed in the circumstances and that the person in question is
suitable to give expert evidence on the issue. The burden of proof of expertise
rests on the party wishing to adduce the witness in evidence.
1.101 It is ultimately the decision of the court to allow evidence of experts.
The two main requirements that a party must satisfy in order to be permitted to
adduce expert evidence in court are;
It must be shown that the expert evidence is necessary and relevant in
the circumstances
It must be established that the witness is a qualified expert
1.102 These two requirements will be discussed in greater detail in the
following chapters.

154
(1960) 94 I. L.T.R. 185.
155
AG (Ruddy) v Kenny (1960) 94 I. L.T.R. 185 at 190.
156
As per Cooper LJ in Davie v Edinburgh Magistrates [1953] SLT 54.

38
2
CHAPTER 2 ADMISSIBILITY OF EXPERT EVIDENCE

A Introduction
2.01 This chapter sets out the current rules and procedures relating to the
use of expert evidence in Ireland. Part B outlines the main rules of evidence
which apply to the giving of expert testimony and the necessary elements that
need to be proved. Part C lists the various categories of issues which the court
allows to form the subject matter of expert testimony.
2.02 Part D examines the permitted scope of expert testimony and
discusses how the court determines how a particular matter is outside the range
of knowledge of the finder of fact. Part E discusses the reasons behind the
development of strict rules of evidence applying to expert witnesses by
highlighting some of the problems that can arise in this regard, including the
possibility of the usurpation by the expert witness of the role of the judge or jury.
2.03 Finally, Part F queries whether there is a need to impose an
additional barrier to admissibility to ensure expert evidence is reliable by
introducing a formal reliability test that all parties seeking to adduce expert
evidence would have to satisfy.

B Rule against Opinion Evidence

2.04 The general rule is that witness testimony in the form of opinion is
inadmissible in both civil and criminal proceedings, and witnesses are confined
to giving evidence of facts. The primary rationale for this rule is that it prevents
witnesses from usurping the role of the tribunal of fact whose job it is to make
inferences and reach conclusions on the basis of facts placed before them. 1 As
Kingsmill Moore J stated in AG (Ruddy) v Kenny:2
―It is a long standing rule of our law of evidence that, with certain
exceptions, a witness may not express an opinion as to a fact in
issue...It is for the tribunal of fact – judge or jury as the case may be

1
McGrath Evidence (Thomson Roundhall 2005), p.311.
2
(1960) 94 I.L.T.R. 185.

39
 – to draw inferences of fact, form opinions and come to
conclusions.‖3
(1) Exception to Exclusionary Rule: Expert Opinion Evidence
2.05 The main exception to the exclusionary rule is that an opinion may be
given by a witness who has expertise in a particular area which is relevant to
the issue at hand. The purpose of this is to provide the judge or jury with the
necessary specialist criteria for testing the accuracy of their conclusions, and
enable them to form their own independent judgment by applying these criteria
to the facts proved in evidence.4
2.06 This was considered by Kingsmill Moore J in AG (Ruddy) v Kenny5
where he explained that:
―…the nature of the issue may be such that even if the tribunal of fact
had been able to make the observations in person he or they would
not have been possessed of the experience or the specialised
knowledge necessary to observe the significant facts, or to evaluate
the matters observed and to draw the necessary inferences of fact.‖6
2.07 Based on the inherent subjectivity and potential for difficulties with
opinion evidence the exception to the exclusionary rule is strictly interpreted. As
will be discussed below, the admissibility of expert evidence is governed by a
number of rules and conditions in terms of the types of issues on which expert
opinion evidence will be permitted and the scope of evidence that can be given.
(2) Necessary Elements to Prove Necessity for Expert Testimony
2.08 In order to be authorised, the party will need to prove that expert
evidence is needed in the circumstances and that the person in question is
suitably qualified to give expert evidence on the issue. The burden of proof of
expertise rests on the party wishing to adduce the witness in evidence.
2.09 The two main requirements that a party must satisfy in order to be
permitted to adduce expert evidence in court are;
i) It must be shown that the expert evidence is necessary in the
circumstances in that it is relevant and that it has probative value.
ii) It must be established that the witness is a qualified expert.

3
(1960) 94 I. L.T.R. 185 at 190.
4
As per Cooper LJ in Davie v Edinburgh Magistrates [1953] SLT 54.
5
(1960) 94 I.L.T.R. 185.
6
AG (Ruddy) v Kenny (1960) 94 I.L.T.R. 185 at 190.

40
2.10 The first of these requirements will now be examined in greater detail
by considering the various categories of expert evidence that have been
recognised and, once the evidence is considered as falling within a permitted
category, the scope of any such evidence that may be given.
2.11 The second of these categories involves an examination of how the
courts have interpreted the concept of an expert for the purposes of the giving
of expert testimony. This will be looked at in greater detail in chapter three.

C The Categories of Expert Evidence

2.12 As a general rule, expert evidence will be allowed in relation to all
matters that are outside the scope of the knowledge and expertise of the finder
of fact. As Pigot C.B. pointed out in McFadden v Murdock,7 expert evidence can
be given;
―…wherever peculiar skill and judgment, applied to a particular
subject, are required to explain results, and trace them to their
causes.‖8
2.13 Notwithstanding this generality, Hodgkinson and James have
identified a number of different categories of evidence that can be given by
expert witnesses.9 They find that five such categories of expert evidence can be
distinguished.
i) Expert evidence of opinion, based on facts that have been adduced
before the court.
ii) Expert evidence to explain technical or complex subject areas or the
meaning of technical terminology.
iii) Expert evidence of fact, on an issue that requires expertise to fully
comprehend, observe and describe.
iv) Expert evidence of fact, on an issue that does not require expertise in
order to fully observe, comprehend and describe, but which is a
necessary preliminary to the giving of evidence in the other four
categories.
v) Admissible hearsay of a specialist nature.

7
(1867) 1 I.C.L.R. 211.
8
McFadden v Murdock (1867) 1 I.C.L.R. 211 at 218.
9 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 2-001 – 2-006.

41
2.14 These categories however undoubtedly overlap and evidence sought
to be given in a particular case may easily fit into a number of different
categories.
(1) Evidence in the form of Opinion Based on Facts Given in Court
2.15 Expert opinion evidence is admissible in respect of any matter
requiring expertise that is necessary to explain a result or fact that is admitted in
court. It has long been recognised by the common law that ―the opinion of
scientific men upon proven facts may be given by men of science within their
own science.‖10
2.16 Ultimately whether the court will admit expert evidence will depend
on the particular issues which a party seeks to prove, and whether or not proof
of these issues would be assisted by expert evidence. However, if the issue is
one on which the finder of fact is qualified and capable of forming a sound
opinion, no expert evidence will be permitted as additional expertise will
essentially be superfluous. The principles governing the scope of expert
evidence and assessing the boundaries of knowledge of a jury or court will be
discussed below.
(a) Types of Expert Opinion Evidence
2.17 Expertise has however since expanded far beyond the traditional
boundaries of professional expertise as the growth in demand for specialised
knowledge has led to related growth in the demand for specialist expertise in
increasingly complex issues.
2.18 Another recent phenomenon is the development of a dedicated
‗litigation support industry.‘ This describes the trend where certain persons have
developed skills which are solely geared towards providing expert evidence, for
example accident reconstruction and care experts. 11
2.19 The significantly lucrative nature of the expert evidence ‗industry‘ has
fuelled this exponential growth, but also highlights the risk that the process
could be abused for profit if left unregulated. However, the list of categories of
subjects is not exhaustive and continues to expand.
2.20 Persons regularly called as experts are those in the medical field
such as physiotherapists, occupational therapists and psychologists who are
often called in personal injuries cases or to give an opinion on the mental state
of an individual.

10
United States Shipping Board v St. Albans [1931] AC 632.
11
Lord Woolf (1996) Access to Justice, Final Report, HMSO at 137.

42
2.21 Other growing areas of expertise include forensic accounting and
computer analysis to tackle the rise in fraud cases, engineering, actuary,
insurance, handwriting comparison and recognition, accident investigation,
facial mapping and identification, DNA, blood, urine, blood-alcohol and drug-
testing, educational issues, art-related matters such as antiques, and
ballistics.12
2.22 Where experts have been appointed to give opinion evidence about
particularly technical or scientific concepts, they may be required to give a great
deal of factual background about the complex concepts on which they base
their opinion. Therefore, this category of evidence often overlaps with the
categories discussed below, and in reality the evidence given by most experts
will entail a mixture of expert opinion and specialised fact.
(2) Expert Evidence to Explain Complex Subject Matters or
Technical Terminology
2.23 One of the more common reasons a party seeks to have expert
evidence adduced, effectively the ‗bread and butter of expert evidence, 13 is to
explain complex, technical, or scientific topics to a judge or jury that is
completely unacquainted with these concepts.
(a) Types of Factual Expert Evidence
2.24 Whilst expert evidence of fact can be adduced on any issue that
requires it, in practice there are a number of technical and scientific areas that
typically form the subject matter of factual expert evidence.
(i) DNA Principles and Terminology
2.25 In recent years, the use of DNA evidence in trials, particularly in
criminal trials by the prosecution, has burgeoned. However, although the public
at large is now tentatively acquainted with the principles underlying the use of
such evidence, most of this knowledge has been imparted through the media,
television and film, and thus the public perception of such evidence may be
inaccurate. As a result, expert evidence continues to be necessary in any case
involving DNA evidence to explain to the jury the complex principles of DNA
technology and evidence.14

12
Hannibal & Mountford The Law of Civil and Criminal Evidence. Principles and
Practices (Pearson Education 2002) pg. 55.
13 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 2-001 – 2-006.
14
See the cases discussed in the Commission‘s Report on the Establishment of a
DNA Database (LRC 78-2005), including The People (DPP) v Mark Lawlor
Central Criminal Court, 2 December 1995; The People (DPP) v Ian Horgan Irish

43
(ii) Patent Cases
2.26 Expert witnesses are also frequently called in patent cases, as the
concepts involved are particularly intricate. Malek notes that experts are called
in patent cases to explain the technical terms employed, to instruct the court on
the relevant principles involved, to explain the nature, working, characteristic
features and probable mechanical results of an invention, as well to identify old
and novel concepts in the specification, outline the extent of scientific
advancement, and also, to point out differences and similarities with rival
inventions and explain the significance of these similarities and differences.15
2.27 An interesting development in England occurred in a patent
infringement case involving DNA, Kirin-Amgen Inc and Ors v Hoechst Marion
Roussel Ltd & Ors16 where the House of Lords was, with the consent of the
parties, given a series of seminars in camera prior to the case by a Professor of
Biochemistry at Oxford University to explain the relevant aspects of
recombinant DNA technology. As pointed out by Lord Hope:
―This had the result of shortening the length of time that it was
necessary to devote to the hearing by several days…it is a course
which might usefully be adopted in the future in cases of this kind,
where the technology is complex and undisputed and the parties are
willing to consent to it.‖17
(iii) Foreign Law
2.28 Expert evidence will be required in order to explain and prove foreign
law. In O'Callaghan v O'Sullivan18 Kennedy C.J. held that where an issue of
foreign law arises it must be ―proved as a fact…it must be so proved by the
testimony and competence of expert witnesses shown to possess the skill and
knowledge….required for stating, expounding, and interpreting that law.‖19

Examiner 25 June 2002; The People (DPP) vl Murphy [2005] 4 IR 504; R v

Doheny & Adams (1997) 1 Cr.App.R. 369.
15 th
Malek & Ors (Eds) Phipson on Evidence (16 Ed Thomson Sweet and Maxwell
2005) at 1025.
16
[2004] UKHL 46.
17
[2004] UKHL 46 at 135.
18
[1925] 1 I.R. 90.
19
[1925] 1 I.R. 90 at 112; See also Waterford Harbour Commissioners v British
Railways Board [1979] ILRM 296.

44
2.29 However, expert evidence is not permitted to prove a matter of
domestic law, presumably as this will not be considered an issue that should be
outside the knowledge of the finder of fact.20
(iv) Customs and Practices of a Trade or Profession
2.30 Expert evidence will also often be given by individuals well versed
and well qualified to give a detailed account of the normal practices and
procedures of a particular skill, trade or profession.
2.31 For example, it has been held in several Irish decisions that evidence
can been admitted to demonstrate the general practice of conveyancing
solicitors in performing searches on properties, 21 to explain what the correct rent
would be for a property of a certain size in a certain area, 22 to outline the
general practice of medical practitioners in medical negligence cases, 23 and to
explain trade customs in particular professions, such as the giving of holiday
pay24 or the losses that would be incurred under certain sales conditions. 25
2.32 The admissibility of expert evidence concerning customs and
practices was considered in McMullen v Farrell26 where Barron J held that
evidence could be admitted about the nature of a solicitor‘s duty to his client
and the everyday practice of solicitors. He relied on the decision of Oliver J in
Midland Bank Trust Co Ltd v Hett Stubbs & Kemp27 who held:
―Clearly, if there is some practice in a particular profession, some
accepted standard of conduct which is laid down by a professional
institute or sanctioned by common usage, evidence of that can and
ought to be received.‖28

20
See Society for the Protection of Unborn Children (Ireland) Ltd. v Grogan (No. 3)
[1992] 2 IR 471; F. v Ireland [1995] 1 IR 321.
21
Roche v Pielow [1986] I.L.R.M. 189.
22
English Exporters (London) Ltd. v Eldonwall Ltd. [1973] Ch. 415.
23
O’Donovan v Cork Co. Council [1967] I.R. 409.
24
O’ Connail v The Gaelic Echo (1954) Ltd. (1958) 92 I.L.T.R. 194.
25
McFadden v Murdock (1867) Exchequer IR ICL 211.
26
[1993] 1 I.R. 123.
27
[1978] 3 All ER 571.
28
Midland Bank Trust Co. Ltd v Hett Stubbs & Kemp [1978] 3 All ER 571 at 582.

45
(v) Technical or Scientific Terminology
2.33 Non-opinion expert evidence may be required to interpret the correct
meaning to be applied to a technical term in a document such as a will or
contract, or to prove that a seemingly ordinary word had a particular meaning in
the context in which it was used, where such meaning is in dispute between the
parties. For example in Thorn v Dickens29 expert evidence was admitted to
show that the testator had intended to gift his property to his wife by using the
term ‗all to mother‘ as it was the custom in the testator‘s locality to refer to one‘s
wife as mother.30
2.34 In another patent infringement case, Hoechst Celanese Corporation v
BP Chemicals Ltd,31 Aldous LJ held that in deciding the meaning of technical
words, a judge is entitled to hear expert evidence from ―the notional skilled man
in the art‖, as there is no presumption in existence which finds that where words
are used that can have a technical meaning, they were intended to be given
their technical meaning:
―…it would be wrong to start the task of construction with any
preconceived idea. Having obtained the knowledge of the notional
skilled man, the [patent] Specification must be read as a whole to
ascertain its meaning and from that the court has to decide the ambit
of the monopoly claimed using the guidance in the Protocol [to the
European Patent Convention].‖32
2.35 Furthermore, in construction, intellectual property, or patent disputes,
the terms at issue are often outside the range of knowledge of the trier of fact,
and so the aid of experts is needed to explain complex concepts where the
parties are in dispute about the meaning of the term.33
2.36 However, the courts are flexible regarding the meaning of the ‗skilled
man‘, and in the interpretation of technical or complex concepts or language,
copious qualifications or academic experience will not always be necessary,
depending on the concept that needs to be interpreted.

29
[1906] WN 54.
30
See also Re Cook [1948] Ch. 212.
31
[1998] EWCA Civ 1081.
32
Hoechst Celanese Corporation v BP Chemicals Limited [1998] EWCA Civ 1081.
33
See for example Baldwin & Francis Ltd. v Patents Appeal Tribunal [1959] 1 Q.B.
105; Cooper (Max) and Sons Pty Ltd v Sydney City Council (1980) 54 A.L.J. 234
cited in Lewison The Interpretation of Contracts (Sweet and Maxwell 2004) at
130-132.

46
2.37 For example in the copyright infringement case Confetti Records v
Warner Music34one of the claimant‘s arguments was alleged derogatory
treatment of a rap song that he had composed, due to the overlay of the song
with a rap containing references to violence and drugs. 35 In order to determine
this issue, the court had to interpret the lyrics of the rap, many of which were in
slang commonly used by drug dealers. As pointed out by Lewison J;
―This led to the faintly surreal experience of three gentlemen in
horsehair wigs examining the meaning of such phrases as ―mish
mish man‖ and ―shizzle (or sizzle) my nizzle‖.‖
2.38 Ultimately the claimant‘s argument of derogatory treatment failed as
Lewison J held that although that the words of the rap were in a form of English,
they were for practical purposes a foreign language, and thus required an
expert in such language to interpret, which the claimant had failed to prove.
2.39 Lewison J appeared to be of the opinion that the requisite expert on
such matters would be a drug dealer acquainted with such terminology,
although he admitted that ―the occasions on which an expert drug dealer might
be called to give evidence in the Chancery Division are likely to be rare.‖
(vi) Meaning of Foreign Words
2.40 The court may also receive expert evidence as to the meaning of
foreign words, where the language is out of the range of knowledge of the court,
but the legal effect of these words remains a matter for the courts to
determine.36
2.41 The service provided by translators can also be considered under
this category of expert evidence. 37 The right to an interpreter is laid out in

34
[2003] EWCH 1274.
35
Under section 80 of the English Copyright Patents and Designs Act 1988 the
author of a literary, dramatic, musical or artistic work has the right, in certain
circumstances, not to have his work subjected to derogatory treatment. Under
section 80 (2) (b) of the Act a treatment is derogatory if ―it amounts to distortion or
mutilation of the work or is otherwise prejudicial to the honour or reputation of the
author‖.
36
Di Sora v Phillips (1863) 10 H.L. Cas. 624; Fothergill v Monarch Airlines Ltd
[1981] A.C. 251 Cited in Lewison The Interpretation of Contracts (Sweet and
Maxwell 2004) at 128-129
37
Hodgkinson & James argue that court interpreters can properly be described as
expert witnesses in that they provide expert advice to the court, in evidential form,
that is outside the specialist knowledge or ability of the court, and which can be

47
Articles 5 and 6 of the European Convention on Human Rights 38 as
incorporated into Irish law by the European Convention on Human Rights Act
2003. Court translators are commonplace nowadays in many cases coming
before the Irish courts, and the Courts Service have access to interpreters in
210 languages and dialects through the use of private agencies. 39
2.42 However, the use of such interpreters in Ireland has been the subject
of much criticism, as it has been pointed out that no process is provided where
interpreters can be trained and tested and no qualifications are necessary or
required in order to work as a court interpreter. 40
2.43 In the Court of Criminal Appeal decision in The People (DPP) v Yu
41
Jie one of the applicant‘s grounds for appeal was based on the fact that the
interpreter provided by the Gardaí to question to applicant while in custody, was
in fact a Chinese policeman who was working for Interpol. This fact was not
made known to the applicant at the time, but he discovered this by looking at
the interpreter‘s laptop during the course of questioning.

evidentially challenged. (Hodgkinson & James Expert Evidence: Law and Practice
nd
(2 ed Sweet & Maxwell 2007) at 5-016)
38
Article 5(2) provides: ―Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and of any charge
against him.‖ Article 6 (3) provides: ―Everyone charged with a criminal offence
has the following minimum rights: a) to be informed promptly, in a language which
he understands and in detail, of the nature and cause of the accusation against
him…e) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court.‖
39
The Courts Service Strategic Plan 2005-2009 states that the Courts Service will
continue to provide interpreters in court to ensure that all court users can do their
business in the language of their choice. Courts Service ‗Sustaining the
Momentum – Courts Service Strategic Plan 2005-2009‘ at 17. Available at
www.courts.ie.
40
Phelan (2002) ‗Working Group on the Jurisdiction of the Courts: Submission from
the Irish Translators and Interpreters Association (ITIA)‘ Available at
http://www.translatorsassociation.ie/component/option,com_docman/task,cat_vie
w/gid,28/Itemid,16; Battles ―Mistranslating Court Interpreters are ‗a Threat to
Justice‘‖ The Sunday Times 6 May 2007; National Consultative Committee on
Racism and Interculturalism ‗Interpreting, Translation and Public Bodies in
Ireland: The Need for Policy and Training‘ (2007, NCCRI) Available at:
http://www.translatorsassociation.ie/component/option,com_docman/task,cat_vie
w/gid,10/Itemid,16.
41
[2005] IECCA 95.

48
2.44 The applicant argued that the realisation that it was a Chinese police
officer may have in some way inhibited the Applicant, particularly as there is no
right to silence under questioning in his own country.
2.45 The Court of Criminal Appeal rejected that any impropriety had taken
place in respect of the interpreter, finding no suggestion that the interpreter was
biased or acted from any improper motive or was in any way intimidatory
towards the applicant.
2.46 However, this case does raise the possibility that interpreter services
and their lack of regulation within the court system could become an
increasingly common ground for appeal or challenge in cases in the near future.
2.47 The Commission provisionally recommends that further research be
conducted into the functioning of translators in our court system in order to
ascertain if reforms need to be taken to improve access to justice.
(3) Expert evidence of fact on an issue requiring expertise to fully
comprehend, observe and describe
2.48 This will overlap to a certain extent with the previous category,
particularly where scientific evidence such as DNA technology is at issue.
Expert evidence will be needed both to explain the principles of such science or
technology and to describe and explain in a factual manner the results or
outcomes of tests or experiments, and also often to carry out these tests and
experiments, submitted as evidence. However, the court is not under any
obligation to accept experiments and tests that have been conducted by experts
as evidence.42
2.49 In the English case R v Meads,43 the evidence against the defendant
was an admission which police officers claimed to have recorded in
contemporaneous handwritten notes during various interviews. The defendant
argued that the admissions were fabrications and sought to introduce an
experiment as expert evidence in the form of a timed re-enactment of the
alleged interviews.
2.50 The prosecution had argued that the new evidence was inadmissible
on the basis that it constituted opinion evidence founded on an insufficiently
organised body of knowledge. However, this was rejected by the English Court
of Apperal, which held that the evidence was expert evidence of fact, as no
specialist skill or knowledge was needed to relay it, and was no more opinion

42 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 2-003.
43
[1996] Crim LR 519, CA.

49
evidence than that of a police officer who times a journey in order to test the
veracity of an alibi.
2.51 However, as can be seen in R v Harris & Ors 44 even where expert
witnesses are interpreting the results of factual evidence such as scientific tests,
they still may disagree as to the meaning of the results, which highlights that
this type of evidence will often still be in the form of opinion rather than fact. 45
2.52 Furthermore, even if the experts are in agreement about the results
of the tests, they may still be in dispute about the significance of these results
for the case at hand. In this case, the English Court of Appeal accepted that:
―…even on the interpretation of objective evidence there can be two
views expressed by highly experienced and distinguished medical
experts.‖46
(4) Expert evidence of fact, on an issue that does not require
expertise to fully observe, but is a necessary preliminary to giving
evidence in the other four categories.
2.53 Hodgkinson and James note that this category does not strictly come
within the definition of expert evidence but argue that it is worthy of discussion
due to the fact that it often forms an inseparable part of the evidence given by
an expert.47
2.54 The type of evidence envisaged by this category was described by
Hobhouse J in The Torenia48 as being factual evidence that is used to support
or contradict the opinion evidence. Such evidence is common, as in giving their
expert opinion experts necessarily rely on their expertise and their experience
and refer to that experience in their evidence.
2.55 Examples of this is where an expert will refer to other cases and how
they apply to the case at hand, or where an expert gives evidence about past

44
[2005] EWCA Crim 1980.
45
In this case, the defendant was accused of murdering her baby by excessive
shaking. Both parties‘ experts were in conflict about the results which were
demonstrated by a slide taken from the victim‘s brain. One expert was of the view
that the slide demonstrated blood oozing from the dura into the subdural space
which was indicative of intradural haemorrhages; the other expert believed the
slide was indicative of subdural haemorrhages.
46
[2005] EWCA Crim 1980 at para. 73.
47 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 1-012.
48
[1983] 2 Lloyd‘s Rep. 210.

50
experiments or experiments conducted for the purposes of the case at hand. 49
This category will inevitably overlap with the following category of admissible
hearsay.
(5) Admissible Hearsay of a Specialist Nature
2.56 The hearsay rule operates to exclude as evidence any out-of-court
statements that are offered for the purpose of proving the truth of their contents.
2.57 In the context of expert evidence, the hearsay rule applies to provide
that in order to be admitted, the primary sources and facts upon which the
expert‘s evidence is based must be proved by admissible evidence given by
either the expert himself or by other witnesses.50
(a) Exceptions to the Hearsay Rule
2.58 Nowadays, there are many recognised exceptions to the hearsay
rule, both statutory and at common law, which may operate to admit the
evidence given by a particular expert if the evidence in question is of a
specialist nature and comes within one of the recognised exceptions.
(i) Ireland
2.59 In fact, in civil proceedings the number of exceptions that have been
identified is so wide-ranging that the rule has been practically abolished, and its
abolition was recommended by the Commission in its Report on The Rule
Against Hearsay in Civil Cases.51 However, it will still often apply in criminal
proceedings and much uncertainty remains as to the extent of its application in
the criminal context.
2.60 Materials used by experts in giving their opinion may be permitted
under one of the existing common law or statutory exceptions to the rule against
hearsay for example if the material is a published work, record or document of a
public nature, is a statement contained in a business record, or is considered
part of the res gestae.52

49
[1983] 2 Lloyd‘s Rep. 210 at 233.
50
R.T. v V.P. [1990] 1 I.R. 545; R. v Abadom [1983] 1 W.L.R. 131.
51
LRC 25-1988. The Commission is currently reviewing the hearsay rule in both
civil and criminal cases under its Third Programme of Law Reform 2008-2014,
project 8.
52
For a detailed discussion of the categories of exceptions to the hearsay rule see
McGrath Evidence (Thomson Roundhall 2005) at 235-304.

51
(ii) England
2.61 In England, the operation of the hearsay rule is now largely governed
by statute, with recent civil and criminal legislative reforms that have greatly
helped to clarify the admissibility of this evidence. 53
2.62 In civil proceedings, the rule against hearsay was abolished by
Section 1(1) of the Civil Evidence Act 1995.54 Hearsay in criminal proceedings is
covered by Part 11 of the Criminal Justice Act 2003. Section 114 of the 2003
Act put eight common law exceptions to the hearsay rule on a statutory basis. In
the context of expert witnesses, section 118 allows evidence to be admitted if it
falls under:
―Any rule of law under which in criminal proceedings an expert
witness may draw on the body of expertise relevant to his field.‖
2.63 Section 127 of the 2003 Act further provides that preparatory
statements prepared for the purposes of criminal proceedings by an expert or a
member of the expert‘s team can be adduced in evidence by the expert to form
part of his or her expert opinion.
2.64 No comparable legislation exists in this jurisdiction but, as will be
discussed below, the Irish courts have held on a number of occasions that the
materials used by an expert are admissible in evidence as a permitted
exception to the hearsay rule.
(b) The Requirement for Proof: The ‘Factual Basis’ Rule
2.65 As already mentioned, if the primary facts forming the basis of the
expert‘s opinion are not proved in admissible evidence little weight will be
attached to the opinion.55
2.66 This ‗basis‘ rule has long since been recognised. In Wright v Doe d
Tatham56 the point was made that:

53
For a detailed discussion of operation of the hearsay rule in England in the
context of expert witnesses see Hodgkinson & James Expert Evidence: Law and
nd
Practice (2 ed Sweet & Maxwell 2007) at 8-001 - 8-056.
54
Section 1 (1) provides that ―evidence shall not be excluded on the grounds that it
is hearsay.‖
55
As per Dixon J in Ramsay v Watson (1961) 108 C.L.R. 642 ―if the man whom the
physician examines refuses to confirm in the witness box what he said in the
consulting room, then the physician‘s opinion may have little or no value, for part
of the basis of it has gone.‖ (at 649) See also; R v Abbey [1982] 2 S.C.R. 24 at
44.
56
(1838) 4 Bing. N.C. 489.

52
 ―The cautious rules by which the rejection of evidence is determined,
affect as well the most weighty opinions, as the most worthless
gossip, unless vouched by the indispensable sanction of an oath; a
certain and few well known cases only excepted.‖ 57
2.67 Similarly, in the Australian case Ramsay v Watson,58 Dixon J
stressed that:
―Hearsay evidence does not become admissible to prove facts
because the person who proposes to give it is a physician.‖ 59
2.68 The proof requirement takes into account the reality that it is not the
expert that decides on the facts in issue, and it is ultimately the finder of fact
who decides whether to accept or reject the expert‘s opinion. In order to
properly determine the value of the expert‘s opinion, the court must necessarily
be knowledgeable about the facts on which this opinion is based.
(c) Avoiding the Proof Requirement – The Hypothetical Question
2.69 A way of avoiding this requirement to some extent could be the use
of the hypothetical question, where the expert stresses that his opinion is based
on a proviso that certain facts or events were true or will be proved, if not his
opinion should be discarded.60
2.70 If an expert is giving opinion evidence in the form of a hypothesis, he
or she is required to firmly explain that the conclusion reached by the expert has
no factual basis but assumes the existence of a number of factors which have
not been proven in evidence.
(d) Exceptions to the Proof Requirement
2.71 Greater flexibility however is given in relation to inferences or
opinions drawn from primary facts that have been proven in court. The practical
reality of specialisation that an expert acquires from study or experience is that
such expertise or knowledge base will usually be founded, partly at least, on
material of which the expert does not have firsthand experience.
th
2.72 For example, as early as the 19 century in this jurisdiction, in
McFadden v Murdock61 Pigot CB rejected the argument that an expert trader

57
(1838) 4 Bing. N.C. 489 at 589.
58
(1961) 108 C.L.R. 642.
59
(1961) 108 C.L.R. 642 at 649.
60
Pattenden ―Expert Opinion Evidence Based on Hearsay‖ [1985] Crim. L.R. 85 at
86.
61
(1867) Exchequer IR ICL 211.

53
should not be entitled to give an account of the losses incurred in the course of
his own trading experiences because such facts cannot be proved. Pigot CB
held in the alternative that such evidence, once similar to the facts which form
the subject matter of the controversy, should be admissible ―in illustration‖ of the
opinion of the expert.62
2.73 Thus, an exception to the proof requirement grew out of necessity as
well as out of recognition of the greater ability of the expert than the court to
evaluate the reliability of background hearsay, as it was recognised that, as
when dealing with complex subject matters, juries proved less able to draw the
necessary inferences from the facts deposed. 63
(i) Expert’s Ability to Rely on Materials from their Field of Expertise
2.74 Nowadays, in reaching a conclusion, the expert is permitted to rely
on prior studies, statistics and research, academic literature and works of
reference in their field of expertise. This has been termed ‗non-specific
hearsay.‘64
(I) England
2.75 In R v Abadom,65 Kerr L.J. referred to this practical reality and
expressed the view that:
―it is no more than a statement of the obvious that, in reaching their
conclusion, [experts] must be entitled to draw on material produced
by others in the field in which their expertise lie…once the primary
facts on which their opinion is based have been proved by admissible
evidence, they are entitled to draw on the work of others as part of
the process of arriving at their conclusions.‖66
(II) Canada
2.76 In Wilband v The Queen67 Fauteux J. explained the reasoning behind
this by pointing out that such evidence does not affect the rule against hearsay

62
(1867) Exchequer IR ICL 211 at 219 Pigot CB approved the comments of
Mansfield LJ in Folkes v Chadd (1782) 3 Douglas 157 in support of this view.
63
Pattenden ―Expert Opinion Evidence Based on Hearsay‖ [1985] Crim. L.R. 85 at
93.
64
Pattenden ―Expert Opinion Evidence Based on Hearsay‖ [1985] Crim. L.R. 85 at
93-95.
65
[1983] 1 W.L.R. 126.
66
[1983] 1 W.L.R. 126 at 131.
67
(1966) CanLII 3 (S.C.C.); [1967] S.C.R. 14.

54
as the material in question is not being submitted to prove its veracity but rather
to explain the thought processes and knowledge bases which helped the expert
to form his opinion:
―…the value of [an expert‘s] opinion may be affected to the extent to
which it may rest on second-hand source material; but that goes to
the weight and not to the receivability in evidence of the opinion, which
opinion is no evidence of the truth of the information but evidence of
the opinion formed on the basis of that information.‖68
(III) Ireland
2.77 The issue was also considered in this jurisdiction in The People
(DPP) v Boyce.69 One of the grounds of appeal was the contention that expert
evidence was admitted to include an unproven factor. The appellant argued that
since the expert witness had relied on statistical information in scientific
literature and could not give evidence of his own knowledge he should not have
been allowed to given expert evidence on the basis of such statistics or
databases. The Court summarised the principles governing this area:
―Any primary fact relied upon by the expert must be proved by
admissible evidence but there are other secondary matters such as
established scientific norms, practices, standards and reference
points within the field of expertise….which he or she may rely upon or
the like.‖
The Court continued;
―In a long established exception to the hearsay rule, an expert can
ground or fortify his or her opinion by referring to works of authority,
learned articles, recognised reference norms and other similar
material as comprising part of the general body of knowledge falling
within the field of expertise of the expert in question.‖
(ii) Expert’s Ability to Rely on General Experiences from Field of
Expertise
2.78 It has also been held that, in coming to an expert opinion, an expert
is entitled to assess the facts against previous experiences that he or she may
have had dealing with similar issues, as long as the comparable evidence does
not amount to hearsay evidence of facts.

68
Wilband v The Queen 1966 CanLII 3 (S.C.C.), [1967] S.C.R. 14 at 21.
69
[2005] IECCA 143.

55
2.79 Megarry J. in English Exporters Pty. Ltd. v Eldonwall Ltd 70 attempted
to explain the distinction between the requirement that the expert have personal
knowledge of the facts upon which his opinion is based, and the fact that he is
entitled to rely on these facts in forming his opinion and in this way is not
subject to the rule against hearsay in the same way as a witness of fact;
―Basically, the expert‘s factual evidence on matters of fact is in the
same position as the factual evidence of any other witness. Further,
factual evidence that he cannot give himself is sometimes adduced in
some other way, as by the testimony of some other witness who was
himself concerned in the transaction in question, or by proving some
document which carried the transaction through, or recorded it; and
to the transaction thus established, like the transactions which the
expert himself has proved, the expert may apply his experience and
opinions, as tending to support or qualify his views. That being so, it
seems to me quite another matter when it is asserted that a valuer
may give factual evidence of transactions of which he has no direct
knowledge, whether per se or whether in the guise of giving reasons
for his opinion as to value. It is one thing to say ―From my general
experience of recent transactions comparable with this one, I think
the proper rent should be £x": it is another to say "Because I have
been told by someone else that the premises next door have an area
of x square feet and were recently let on such-and-such terms for £y
a year, I say the rent of these premises should be £z a year….It
therefore seems to me that details of comparable transactions upon
which a valuer intends to rely in his evidence must, if they are to be
put before the court, be confined to those details which have been, or
will be, proved by admissible evidence, given either by the valuer
himself or in some other way. I know of no special rule giving expert
valuation witnesses the right to give hearsay evidence of facts…I can
see no compelling reasons of policy why they should be able to do
so.‖71
(iii) Expert’s Ability to Rely on Second Hand Information in Order to
Form an Expert Opinion
2.80 Where the expert does not have firsthand knowledge of the facts
upon which his opinion is based, for example a psychiatrist or psychologist who
bases his evaluation of a patient on statements or events narrated to him by the

70
[1973] 1 Ch. 415.
71
[1973] 1 Ch. 415 at 421.

56
patient, it may be nevertheless permissible for him to state a hypothesis on
these assumed facts.72
2.81 In cases involving delay in sexual abuse cases, psychiatrists are
often recruited to testify about the reasons for the delay. In such cases, it has
been held that the psychiatrists are entitled to believe the complainant at face
value and use the information in their opinion.
2.82 Such statements are admitted as evidence for the reason that these
psychiatrists and psychologists have qualified as experts in diagnosing the
behavioural symptoms of individuals, and have formed an opinion on the basis
of these statements, which the trial judge deems to be relevant to the case.
2.83 However, it is important to note that these statements are not
admissible as proof of their truth but rather as indicating the basis upon which
the medical opinion was formed in accordance with recognised professional
procedures.73
2.84 Thus an expert opinion based on second-hand evidence is
admissible, if relevant. Furthermore, it is apparent that a distinction can be
drawn between the requirement for first hand evidence, which if not present, will
reduce the weight to be given to the opinion of the expert, and the rule against
hearsay. The hearsay rule does not operate to exclude an expert opinion based
on second-hand evidence because this evidence is not admitted to prove the
fact of what the expert has been told. 74
2.85 In the Canadian case R v Abbey75 the accused‘s psychiatrist and not
the accused himself, testified, in the course of his opinion, to events related to
him during several interviews. There was no admissible evidence brought
before the court in respect of any of these events. On appeal Dickson J held
that a retrial should be ordered as the testimony of the expert;
―…while admissible in the context of the opinion, was not in any way
evidence of the factual basis of these events and experiences. The
trial judge in his decision fell into the error of accepting as evidence
of these facts, testimony which if taken to be evidence of their
existence would violate the hear-say rule.‖76

72
R.T. v V.P. [1990] 1 I.R. 545
73
Per Richie J in Phillion v The Queen, [1978] 1 S.C.R. 18 at 24.
74
Per Jessup J.A. in the Canadian case R v Rosik [1971] 2 O.R. 47 at 84-85.
75
[1982] 2 S.C.R. 24.
76
R v Abbey [1982] 2 S.C.R. 24 at 45

57
(e) Hearsay and Expert Evidence: Irish Examples
2.86 A series of nullity cases in this jurisdiction considered the above
principles in detail. In F v L (Orse F)77 Barron J. held that hearsay evidence by
the petitioner and two other witnesses would be disregarded and, insofar as the
consultant psychiatrist related matters told to him by others in the absence of
the respondent, then the Court could not accept them as true but only as
statements made to him in the course of his profession in relation to a matter
authorised by the Respondent.
2.87 Similarly, in RT v VP (Orse VT),78 the respondent objected to expert
opinion evidence given by an expert for the petitioner, a psychiatrist, concerning
the mental state of the respondent, as hearsay, as the witness had never met or
examined the respondent. The expert had based this opinion on statements
from the petitioner and on a report written by the court appointed expert, also a
psychiatrist, who had examined the respondent.
2.88 Lardner J upheld this objection stating that an expert witness is
entitled to give an opinion on facts which are admitted or proven by himself or
other witnesses, or matters of common knowledge, or upon a hypothesis based
thereon, but evidence based on an individual he had never met or examined
was inadmissible as hearsay.
2.89 McGrath submits that it seems incorrect to classify such evidence as
hearsay, considering that in this case both the petitioner and the court-
appointed expert were called to give evidence in court. He argues that it would
have been more appropriate to object to the evidence on the grounds of its lack
of probative value, and so this is a matter which should go to the weight rather
than admissibility of the evidence. 79
2.90 However a more lenient approach was taken by O‘Higgins J in two
later nullity cases, JWH (Orse W) v GW80 and DK v TH (Orse TK).81 In both
cases, which were decided on the same day, evidence was admitted from
psychiatrists concerning the mental state of the respondents even though the
respondents had not been examined by the experts. O‘Higgins J warned that
such evidence would be of limited value due to the lack of input from the
respondent but felt that this should be taken into account in assessing the
weight and not the admissibility of the evidence.

77
[1990] 1IR 348.
78
[1990] 1 IR 545.
79
McGrath Evidence (Thomson Roundhall 2005) at 319.
80
Unreported, High Court February 25, 1998.
81
Unreported, High Court February 25, 1998.

58
2.91 An even more relaxed view to the admissibility of expert evidence
was taken in State (D and D) v Groarke & Ors.82 Here the petitioners contested
the validity of a ‗fit person‘ order, 83 which provided for the removal of a child
from its parents, on grounds that fair procedures had not been followed in the
making of the order. In particular, the petitioners objected to the evidence
adduced by the respondents; a video of a doctor interviewing the child with the
aid of anatomical dolls, which had formed to a large extent the opinion of this
doctor that the child had been abused.
2.92 The Supreme Court allowed this evidence to be admitted, finding that
the court should have before it the basic evidence (in this case the video
recording and an explanation from the expert witness doctor regarding the
meaning of the use by the child of the dolls) that was used to form the basis of
the doctor‘s opinion that the order should be made, in order to determine if this
conclusion was correct.84
2.93 In Southern Health Board v C85 similar facts were involved. Here, a
father objected to videotape evidence of an interview between his child and a
social worker, which formed the basis of an allegation of sexual abuse, being
admitted in court in proceedings to impose a fit person order on grounds that
such evidence amounted to hearsay. The Supreme Court held that the
evidence was rightly admitted.
2.94 O‘Flaherty J took the view that the videotape evidence was not
hearsay evidence as it did not constitute independent evidence of the child but
a material part of the expert testimony of the social worker.

82
[1990] 1 I.R. 305
83
Under section 58 of the Children Act 1908 a child under the age of 15 years
could, in certain circumstances, be placed in the care of a ‗fit person.‘
84
In State (D and D) v Groarke & Ors [1990] 1 I.R. 305 at 310, Finlay CJ stated: ―In
order to determine with safety, having regard to the nature of this interview, such
a vital matter as to whether the conclusion reached by the doctor carrying out is a
sound conclusion which would warrant such a drastic step as the possibly long-
term removal of the care of a child out of the custody of its parents, it would be
necessary for the tribunal before which such evidence of conclusion was given to
have, in addition, the basic evidence from which that conclusion was reached,
namely the video recording (where it existed) of the interview between the doctor
and the child and a demonstration, in addition, of the precise use and the expert
witness‘s belief in the meaning of the use by the child, of the anatomical dolls.‖
85
[1996] 1 I.R. 219.

59
 ―[W]e point out that the key evidence as far as this part of the case is
concerned will be that offered by the social worker, Mr. Jim O‘Leary.
In a sense, the tapes are simply material that will back up his
testimony. Essentially however, the important evidence will be his
expert testimony.‖86
2.95 The Court also found that it was a matter for the District Court to
accept or reject this expert testimony, and that it remained open to the
respondent to employ their own expert witness to cross examine the social
worker in order to assist him in meeting the allegations.
2.96 McGrath argues that these decisions push back traditional
boundaries regarding the type of evidence that is admissible in support of
expert testimony and highlight the potential for the rules regarding expert
evidence to be used as a backdoor means of admitting hearsay evidence.87
2.97 However it is important to note that in both cases much emphasis
appeared to be placed on the welfare and best interests of the child. The cases
did not involve a determination of the veracity of the allegations or of a
prosecution of the alleged perpetrators. It is questionable if such an approach
would have been taken if criminal proceedings were being taken, or the truth of
the allegations was to be determined.
2.98 A more recent case dealing with potential hearsay in the evidence of
the expert witness is MCG(P) v F(A).88 Here, the parties sought court direction
about the scope and extent of the powers of the expert witness in the case, a
medical inspector who was appointed by the court under Order 70 Rule 32,
Rules of the Superior Court for the purposes of the petition of a degree of
nullity.
2.99 More specifically, the parties wished to determine if the medical
inspector, an experienced consultant psychiatrist, was entitled to interview third
party informants, in respect of his diagnosis of the state of mind of the parties
around the time of the ceremony of marriage. The medical inspector pointed out
that his expert assessment would be less complete and satisfactory from his
point of view as a medical expert unless he interviews third-party informants as

86
Per O‘Flaherty J Southern Health Board v C [1996] 1 I.R. 219 at 239.
87
McGrath Evidence (Thomson Roundhall 2005) at 321 – The admissibility of
videotape evidence in civil cases involving children is now provided in the
Children Act 1997, and to a certain extent in criminal proceedings by the Criminal
Evidence Act 1992.
88
[2000] IEHC 11, High Court, 28 January 2000.

60
would often be usual in making a clinical diagnosis where personality disorder is
suggested.
2.100 Budd J accepted that it would be desirable to have as much
information as possible available to the medical inspector, however, he pointed
out that the wording of the provisions of the statute and of the rules governing
the appointment of a medical inspector envisages an inspection of the parties
themselves and not an examination of third-party informants and felt that it:
―…would stretch the elasticity beyond breaking point to extend
matters to include interviewing third-party informants and this would
be in breach not only of the letter but also of the spirit of the wording
of the statute and of the rules.‖89
2.101 Budd J also stressed the point that the ultimate responsibility of
deciding whether or not to grant a decree of nullity was not that of the medical
inspector, but of the court. He held that in order to ensure that the court remains
in control of the inquiry, and for the other reasons cited, third party informants
should not be interviewed.
2.102 He also seemed largely motivated by the danger that the evidence
given by third party informants may be later exposed to be false. As he
reasoned:
―The report based on the psychiatrist‘s expertise and interviews only
with the parties avoids the problem of the Court having to work out
how much of the inspector‘s report is based on what the inspector
heard from a witness whose evidence the Court has not heard or
whose evidence the Court has rejected as false…There are very real
problems in reality about a Court having to extrapolate sound parts of
an Inspector‘s report which have not been tainted by hearsay or
evidence which has been rejected. A further consideration is that the
Court is seen to be in control of the proceedings and that justice is
seen to be done and the perils from hearsay and loss of confidence
on the part of the parties in the conduct of the proceedings from an
expanded role of the medical inspector…If the inspector has based
part of his assessment on contaminated evidence then this is going
to cause problems in the future when his report is considered by the
Court and there may be real difficulties in unscrambling the part of
the omelette which has been contaminated by hearsay or false and
rejected evidence.‖ 90

89
[2000] IEHC 11, High Court, 28 January 2000, at 19.
90
[2000] IEHC 11, High Court, 28 January 2000, at 21.

61
2.103 This case shows a return to the strict view that if objection to
evidence from an expert witness is raised on grounds of hearsay, such
evidence is likely to be ruled inadmissible, and highlights that the court remains,
as per Budd J:
―….chary of widening the scope of the inquiry and of intermeddling
by persons who may be partisan and who are not actually called to
give evidence by one of the parties before the court.‖91
2.104 McGuinness J considered the role of evidence of delay in cases of
child sexual abuse in VW v DPP:92
―All such evidence is open to challenge in cross-examination. It must
however be borne in mind that it is not the task of the expert witness
to assess the credibility of the complainant or the guilt or innocence
of the applicant. The truth or otherwise of the complaints is to be
tested at the trial.‖

D The Scope of Expert Evidence

2.105 There are a number of rules governing the exact parameters of the
evidence that may be given by an expert. The general rule relating to opinion
evidence is an exclusionary one – a witness is not entitled to give an opinion or
draw inferences from facts observed; they can only testify as to the facts
observed by them personally.
2.106 Expert evidence operates as a limited exception to this strict
exclusionary rule. The court‘s reluctance to admit opinion evidence stems from
its inherent subjective nature and its ability to lead to inconsistencies and
injustices. As Lord Pearce stated:
―Human evidence shares the frailties of those who give it. It is subject
to many cross-currents such as partiality, prejudice, self-interest and,
above all, imagination and inaccuracy.‖93
2.107 As a result, the operation of the exception in favour of expert opinion
evidence and the scope of such evidence that will be considered admissible are
circumscribed by a number of ancillary rules which are strictly applied.

91
McG(P) v F(A) [2000] IEHC 11, High Court, 28 January 2000, at 25.
92
Supreme Court, 31 October 2003.
93
Toohey v Metropolitan Police Commissioner [1965] 1 All ER 506 at 509-510, 512.

62
(1) Within the Field of Expertise of the Expert
2.108 It is a well accepted common law requirement that the expert must
confine himself to expressing an opinion on issues that are within the ambit of
his area of expertise,94 and an expert witness cannot express an opinion on
legal or technical issues raised in the case, or the merits of the plaintiff‘s and
defendant‘s arguments.
2.109 As distinguished above, in some cases an expert will only be
required to outline the scientific or technical facts as understood by him. In other
cases the expert will be asked to give an opinion on a set of circumstances
based on his expertise. The problem arises where the distinction between fact
and opinion breaks down and the expert ends up expressing a more detailed
opinion than is permissible.
(a) Defining the Parameters of Expertise
2.110 Experts are entitled to give non-opinion expert evidence, such as
describing the concepts involved in a patents case or explaining the principles
of DNA technology, however, the courts are strict to ensure that in doing so the
experts do not go further and comment for example, as to whether the
defendant‘s invention infringed the plaintiff‘s patent.
2.111 This is because such matters are for the judge or jury to decide as
the expert witness is not, by reason of his expertise, any better placed to give
an opinion on such matters than the judge or jury as such matters do not
amount to specialised knowledge.
2.112 There is a danger that if an expert was entitled to give an opinion
based on the expert facts outlined, excessive weight will be given to this by
members of the jury and also that it may effectively amount to the expert trying
the issues of the case.
(b) England
2.113 One case where the English courts had to decide on the parameters
of the expertise of the expert was R v Barnes.95 Here, the Court of Appeal
refused the appellant the right to introduce fresh evidence from an
arboriculturalist, or wood grain expert, to the effect that the wood grain pattern
on a fingerprint allegedly taken from a wooden door at the scene of a crime and
matching that of the defendant, did not match the wood grain of the door itself.

94
One of the duties of expert witnesses identified by Cresswell J National Justice
Compania Naviera SA v Prudential Assurance Co Ltd (The Ikerian Reefer) [1993]
2 Lloyd‘s Rep 68 is that an expert should clearly state when a particular issue
falls outside his area of expertise.
95
[2005] EWCA Crim 1158.

63
2.114 The Court held that while the witness was undoubtedly an expert on
wood grain, he had no expertise in the interpretation of lifts, or in the
identification of wood-grain on lifts, which were the questions in issue, therefore
his evidence was not considered of sufficient relevance to form the basis of an
appeal.
(c) Ireland
2.115 In an Irish case, The People (DPP) v Yusuf Ali Abdi,96 the defendant
appealed his conviction for the murder of his baby son on the grounds that the
Court had erred in law by permitting an expert witness psychologist to give
opinion evidence about the applicant‘s motive in killing his son. He argued that
such an opinion did not come within the ambit of a psychologist‘s expertise.
2.116 He based this argument on the decision in The People (DPP) v
97
Egan and argued that the purpose of a psychiatrist is solely to offer an expert
opinion as to whether the accused was insane or not at the time of the killing,
and questions of intent and motive are matters for the jury, as they are matters
of ordinary human experience.
2.117 The evidence in dispute was that of a consultative psychiatrist, who
had prepared a report on the applicant which was used in evidence during the
trial. In this report the psychiatrist had stated a belief that the defendant‘s
alleged actions were motivated by ―his inability to accept that he would be
unable to rear his child in his own religious faith coupled by the threat of losing
custody of the child.‖98
2.118 The Court of Criminal Appeal held, however, that the material was
rightly admitted. The Court noted that, in two previous cases relied on, insanity
had been neither established or alleged, as both were cases where it was
sought to establish that the accused could avail of the defence of provocation in
that he was suddenly and totally deprived of his self control, which was plainly a
matter for the jury to consider and beyond the proper reach of expert testimony.
The case at hand, the Court held, differed greatly. In the present case insanity
was specifically alleged and pleaded, and the defence had called expert
evidence to establish it. The prosecution was plainly entitled therefore to
counter this with expert testimony of its own.
2.119 There are several other examples from this and other jurisdictions
where expert testimony has been objected to on the grounds that the expert
was giving evidence on an issue that did not come within the ambit of his area

96
[2004] IE CCA 47.
97
[1990] ILRM 780
98
At paragraph 16.8 of the expert‘s report.

64
of expertise. This shows a readiness on behalf of the courts to ensure that the
confines of expert evidence are firmly observed.
2.120 The majority of the objectionable evidence in these cases is however
excluded as a result of the ‗common knowledge‘ or ‗ultimate issue‘ rules, and
these two rules operating together have the effect of strictly excluding all
evidence that is likely to result in the role of the finder of fact from being
usurped.
(2) The Common Knowledge Rule
2.121 Even if the matter in question falls within one of the categories of
expert evidence identified above and thus comes within the range of matters for
which expert testimony is permitted, if the jury is capable of making inferences
from the factual testimony presented, that is, where the issue in question is
within the scope of knowledge and competency of the tribunal of fact, any extra
expert evidence will be superfluous and so is inadmissible. As Lawton LJ stated
in R v Turner99
―An expert's opinion is admissible to furnish the Court with scientific
information which is likely to be outside the experience and
knowledge of a judge or jury. If on the proven facts a judge or jury
can form their own conclusions without help, then the opinion of the
expert is unnecessary.‖ 100
2.122 Evidence relating to matters of common knowledge, matters which
can be dealt with by the trier of fact by applying common sense and life
experience is therefore inadmissible.
2.123 The primary rationale for the exclusionary rule is to prevent the
function of the judge or jury from being usurped by allowing an expert to decide
on matters which are within the province of the finder of fact. Another underlying
concern of the rule is to prevent excessive time wasting in trials by limiting the
type of expert evidence that comes before the court.
(a) Operation of the Rule in Common Law Jurisdictions
2.124 The rule excluding matters of common knowledge from the scope of
expert testimony has been reaffirmed on several occasions in this jurisdiction
and in England for centuries. However, recent cases indicate an easing of the
rule, and there are many examples of inconsistent case law on this issue.

99
[1975] Q.B. 834.
100
R v Turner (1974), 60 Crim. App. R. 80, at p. 83.

65
2.125 Much judicial commentary exists which strongly confirms that expert
witnesses will not be permitted to give evidence on matters which are
considered within the scope of knowledge of the finder of fact.
2.126 In the Australian case Transport Publishing Co Pty Ltd v Literature
Board of Review101 Dixon C.J. stated that ―ordinary human nature, that of
people at large, is not the subject of proof by evidence, whether supposedly
expert or not.‖102
(i) England
2.127 In R v Turner,103 the accused had bludgeoned his girlfriend to death
after she confessed her infidelity to him. The court refused evidence the of a
psychiatrist that such an event was likely to have caused an explosion of rage in
him, as ―jurors do not need psychiatrists to tell them how ordinary folk who are
not suffering from any mental illnesses are likely to react to the stresses and
strains of life.‖104
2.128 The reasoning behind this view is a recognition of the fact that when
an expert makes a determination on an issue on which a judge or jury would be
well capable of forming their own opinions and drawing their own conclusions
on, the judge or jury is prone to attach greater significance than is perhaps
warranted to the opinion of the expert. In R v Turner105 Lawton LJ made
reference to this:
―If, on the proven facts, a judge or jury can form their own
conclusions without help, then the opinion of an expert is
unnecessary. In such a case, if it is dressed up in scientific jargon it
may make the judgment more difficult. The fact that an expert
witness has impressive scientific qualifications does not by that fact
alone make his opinion any more helpful than that of the jurors
themselves; but there is a danger that they may think it does.‖
2.129 Sopinka J‘s comments in the Canadian case R v Mohan106 are also in
this vein:

101
(1955) 99 C.L.R. 111.
102
Transport Publishing Co. Pty. Ltd. v The Literature Board of Review (1955) 99
C.L.R. 111 at 119.
103
[1975] QB 834.
104
Per Lawton LJ at 841-842.
105
[1975] Q.B. 834.
106
[1994] 2 S.C.R. 9 at 21.

66
 ―…dressed up in scientific language which the jury does not easily
understand and submitted through a witness of impressive
antecedents, this evidence is apt to be accepted by the jury as being
virtually infallible and as having more weight than it deserves.‖
(ii) Ireland
2.130 The ‗common knowledge‘ rule has also been enforced by the Irish
courts on several occasions. Turner was approved in Ireland in The People
(DPP) v Kehoe,107 a case with similar facts, where the Court of Criminal Appeal
held a psychiatrist‘s evidence about the accused‘s state of mind should not
have been admitted as it merely sought to articulate more fully the defence of
provocation of the accused, which the accused was in a position to give to the
jury himself.
2.131 Similarly, in McMullen v Farrell108 although Barron J. admitted expert
evidence about the everyday professional practice of solicitors, he refused to
admit evidence relating to the manner in which litigation is conducted as he felt
the court itself has factual knowledge of this practice. 109
(b) Difficulties Determining Matters of Common Knowledge – A Move
Away from the Common Knowledge Rule?
2.132 The distinction between facts that require expertise and facts that are
within the range of knowledge of the finder of fact is not always clear and
difficulties can arise in certain areas. This is apparent from the case law where it
can be seen that the rule against matters of common knowledge has
occasionally received disparate and inconsistent application.
2.133 Deciding on admissibility and policing the boundaries of what is
within the knowledge of the finder of fact is made more difficult by the fact that
these boundaries can change with developments in science and technology.
2.134 One area where considerable difficulties have arisen is whether or
not expert testimony should be admitted on the credibility of the accused. 110

107
[1992] I.L.R.M. 481.
108
[1993] 1 I.R. 123 at 148.
109
There are several other examples of cases where the court has considered it
inappropriate or unnecessary to hear evidence relating to the role and duties of
solicitors. See for example R v Wahab & Ors [2002] EWCA Crim 1570 at Para 43
th
(Cited in Malek & Ors (Eds) Phipson on Evidence (16 Ed Thomson Sweet and
Maxwell 2005) at 1033 fn. 97.
110
See for example R v Turner [1975] Q.B. 834 and R v Mackenny (1981) 76 Cr.
App. Rep. 271 However, this decision was overturned in R v Pinfold and
Mackenny (2003) where the Court of Appeal held that the Court‘s approach has

67
This is particularly so in criminal trials, probably due to the presence of the jury
and the view that they might afford greater weight to expert evidence than is
appropriate or than would a judge.
2.135 However, there are some limited examples of cases where expert
evidence on the credibility of the accused has been admitted; where it is
considered that the issue of credibility is outside the experience and knowledge
of the jury; as this is a more reliable indicator than attempting to define whether
or not the evidence relates to a recognised mental illness or not.111
(i) Ireland
2.136 The emergence of new and specialised areas of expertise has led to
difficulties in determining whether an issue is something which a lay judge and
jury are capable of assessing, or whether expert evidence on the issue is
necessary.
2.137 In The People (DPP) v Pringle112 the accused argued that expert
forensic evidence, which amounted to a comparison of fibres found on cars
used in a bank raid and those found on the accused‘s pullover, should not have
been admitted as the judges were competent to make such a comparison
themselves.
2.138 The court however rejected this, placing considerable emphasis on
the expertise of the witness in forensic science, and expressed the view that
requiring judges to personally conduct ―laboratory experiments….for visual
comparisons‖ as being ―novel and wholly inappropriate.‖ 113
2.139 Psychiatric and psychological expert evidence has generated
considerable difficulties. In Kehoe, O‘Flaherty J was of the opinion that medical
expert evidence such as that of psychiatrists should properly be confined to
matters such as insanity and other forms of mental illness. In borderline cases

developed over the years and is now more generous towards the admission of
expert evidence than was once the case. (See Roberts ―Towards the Principled
Reception of Expert Evidence of Witness Credibility in Criminal Trials (2004) 8 E.
& P. 215).
111
See for example R v Raghip The Times, December 9 1991; R v Ward 96 Cr App
R 1; R v Steele [2003] EWCA Crim 1640 all of which dealt with the credibility of
confessions made in custody.
112
(1981) 2 Frewen 57.
113
Per O‘Higgins CJ (1981) 2 Frewen 57 at 88 (cited in Healy Irish Laws of Evidence
(Thomson Roundhall 2004).

68
the court may decide to allow expert evidence where it is unsure if it can make a
sound or fully informed decision without it. 114
2.140 However, with the new defence of diminished responsibility, 115 mental
health issues will no longer be considered so clear cut in determining liability.
The evidence of medical experts on the mental state of the accused will
therefore no doubt attract a renewed significance and will in the future, it is
submitted, be more readily admitted in this regard.
2.141 The Commission notes that the language used in the Criminal Law
(Insanity) Act 2006 refers to ―mental disorder‖ 116 which differs from the English
―abnormality of the mind.‖ 117 Although it remains to be seen how the Irish courts
will interpret this provision, it could be considered that the Irish provisions have
a much narrower ambit than the corresponding English provision. It can thus be
argued that ―mental disorder‖ should be equated with a recognised mental
condition, about which expert testimony will undoubtedly be held to be
admissible.
2.142 In its Consultation Paper on Child Sexual Abuse, the Commission
considered whether or not expert evidence should be considered admissible in
helping to determine the credibility of alleged victims of child sexual abuse. 118

114
King v Lowery & R [1974] A.C. 85.
115
This defence was introduced in Ireland under section 6(1) of the Criminal Law
(Insanity) Act 2006 which provides: ― Where a person is tried for murder and the
jury or, as the case may be, the Special Criminal Court finds that the person— (a)
did the act alleged, (b) was at the time suffering from a mental disorder, and (c)
the mental disorder was not such as to justify finding him or her not guilty by
reason of insanity, but was such as to diminish substantially his or her
responsibility for the act, the jury or court, as the case may be, shall find the
person not guilty of that offence but guilty of manslaughter on the ground of
diminished responsibility.‖
116
Section 1 of the 2006 Act states: ―mental disorder includes mental illness, mental
disability, dementia or any disease of the mind but does not include intoxication.‖
117
Section 2(1) of the UK Homicide Act 1957 provides: ―Where a person kills or is a
party to the killing of another, he shall not be convicted of murder if he was
suffering from such abnormality of mind (whether arising from a condition of
arrested or retarded development of mind or any inherent causes or induced by
disease or injury) as substantially impaired his mental responsibility for his acts
and omissions in doing or being a party to the killing.‖
118
See Law Reform Commission Consultation Paper on Child Sexual Abuse LRC
CP 2-1989, Chapter 6; Law Reform Commission Report on Child Sexual Abuse
LRC 32 1990.

69
The Commission recognised that matters of human nature and behaviour within
the limits of normality are not susceptible to expert evidence. 119
2.143 The Commission went on to refer to a number of English cases
where expert evidence on matters such as credibility of the accused, 120 and the
credibility of the accused‘s allegation of assault,121 but recognised that the ―child
sexual abuse syndrome‖ as [at the time of the report] lacks clear scientific
empirical validation.‖122
2.144 The Commission outlined both the advantages, such as giving the
jury a more informed perspective, and explaining the reasons for a child‘s
unusual behaviour, and disadvantages, such as the possibility of usurpation of
the role of the finder of fact and delay, of admitting evidence on the likely
reactions of child victims of sexual abuse. 123
2.145 In conclusion, the Commission provisionally recommended that
expert evidence be admissible as to competence and as to children's typical
behavioural and emotional reactions to sexual abuse, a recommendation that
was confirmed in the later Report.124
2.146 The Commission‘s recommendations on this issue reflect the general
trend of the courts to adapt to new and emerging forms of expertise, and a
willingness to take a flexible approach in relation to what can be considered an
issue that is not within the common knowledge of the finder of fact and on which
expert evidence is therefore considered beneficial and admissible.
(ii) England
2.147 The courts have readily allowed expert evidence to prove recognised
mental illness, however recent cases in England show that the categories of
what will be considered ‗mental illness‘ have expanded over the years and

119
Law Reform Commission Consultation Paper on Child Sexual Abuse LRC CP 2-
1989 at 6.02.
120
Lowery v The Queen [1973] 3 All ER 662 (PC).
121
Toohey v Metropolitan Police Commissioner [1965] 1 All ER 506 (HL).
122
Law Reform Commission Consultation Paper on Child Sexual Abuse LRC CP 2-
1989 at 6.05.
123
Law Reform Commission Consultation Paper on Child Sexual Abuse LRC CP 2-
1989 at 6.07-6.15.
124
Law Reform Commission Consultation Paper on Child Sexual Abuse LRC CP 2-
1989 at 6.16; Law Reform Commission Report on Child Sexual Abuse LRC 32
1990 at 6.04.

70
evidence is now being allowed in a far wider range of cases than anticipated by
Turner.
2.148 For example in R v Toner125 expert evidence showing that a mild
hypoglycaemic attack could have negatived intent was allowed. Similarly in R v
Ward126 psychological evidence was allowed to help prove that the accused was
suffering, while not from a mental illness, from a personality disorder so serious
as to be described as a mental disorder.
2.149 Expert evidence has also been admitted in England in cases
involving inter alia insanity,127 battered wives syndrome,128 and automatism.129 It
has also been accepted that expert psychiatric evidence is legally necessary
where examining the issue of diminished responsibility. 130
2.150 In R v O'Brien131 a similarly broader approach to the admissibility of
expert psychiatric evidence was taken. Roche LJ stated:
―At one time the law was thought to be that expert evidence of the
kind that we have heard could only be admitted if that evidence
showed a recognised mental illness, this being the interpretation
placed upon R. v. Turner. It has now been accepted that expert
evidence is admissible if it demonstrates some form of abnormality
relevant to the reliability of a defendant‘s confession or evidence.‖ 132
(iii) Australia
2.151 It is also interesting to note that in the Australian case Murphy v The
Queen133, the High Court of Australia reversed the decision of the trial judge that
the evidence of a consultant psychiatrist, which sought to show that the

125
93 Cr App R 382.
126
96 Cr App R 1.
127
People (AG) v Fennell (No 1) [1940] I.R. 445.
128
R v Thornton (No. 2) [1996] 2 All ER 605; R v Sally Lorraine Emery (And another)
(1993).
129
Hill v Baxter [1958] 1 Q.B. 277.
130
See Dix (1981) 74 Cr. App. R. 306 at 311 Cited in Mackay & Coleman ―Excluding
Expert Evidence: A Tale of Ordinary Folk and Common Experience‖ [1991] Crim.
L.R. 800 at 801.
131
[2000] EWCA Crim 3.
132
[2000] EWCA Crim 3.
133
[1989] 164 CLR 94.

71
defendant was of limited intellectual capacity, was inadmissible due to the fact
that it related to matters of human nature and behaviour within the limits of
normality and thus did not qualify as expert evidence.
2.152 In the course of the judgment, the High Court of Australia expressed
doubt concerning the English Turner decision:
―Lawton L.J. added some remarks which may not be so
unquestionable: ―Jurors do not need psychiatrists to tell them how
ordinary folk who are not suffering from any mental illness are likely
to react to the stresses and strains of life.‖ There are difficulties with
such a statement. To begin with, it assumes that ―ordinary‖ or
―normal‖ has some clearly understood meaning and, as a corollary,
that the distinction between normal and abnormal is well recognized.
Further, it assumes that the commonsense of jurors is an adequate
guide to the conduct of people who are ―normal‖ even though they
may suffer from some relevant disability. And it assumes that the
expertise of psychiatrists (or, in the present case, psychologists)
extends only to those who are ―abnormal.‖ None of these
assumptions will stand close scrutiny.‖ 134
2.153 The High Court of Australia then reformulated the test to one that
considers whether the evidence would provide assistance to the decision
maker.
(c) Abolition of the Common Knowledge Rule
2.154 As evident from the inconsistent case law, and more obviously from
the Australian decision Murphy v The Queen,135 there appears to have been a
shift away from a strict application of the common knowledge rule. Indeed,
some jurisdictions have decided to abolish the rule outright.
(i) Australia
2.155 The Australian Law Reform Commission‘s Interim Paper on Evidence
criticised the common law rule for a number of reasons. The Commission
argued that what is ‗common knowledge‘ must be clearly definable in order for
the exclusionary rule to function properly, and that finding a clear definition is
however, not possible. 136

134
Murphy v The Queen [1989] 164 CLR 94 at 110.
135
[1989] 164 CLR 94
136
Australian Law Reform Commission ―Interim Report 26 – Evidence‖ (ALRC June
1984) at 354-355.

72
2.156 The Commission also argued that the rule excluding matters of
common knowledge lacked theoretical justification because there are many
situations in which the trier of fact might have some acquaintance with a subject
as would the public at large, but might still find assistance from an expert of
some value. 137 They gave the example of evidence that may be given by mental
health professions on the ‗ordinary man,‘ which as a consequence of the
common knowledge rule, will be excluded.
―As a result the common knowledge concept has denied the
courts…..the work done by psychologists in conducting research into
perception, memory, narration and in demonstrating the fallibilities of
eye witness identification and the giving of confessions. A refusal by
the courts to utilise the fruits of such research means that they base
their decisions on knowledge that is incomplete and out of date.‖ 138
2.157 The ALRC recommended that, rather than ask whether the area in
relation to which expert opinion evidence is tendered is one of common
knowledge, the question for the court should be whether the trier of fact could
usefully receive assistance from the expert opinion evidence.‖ 139
2.158 Following these recommendations, Section 80(b) of the Evidence Act
1995 (Cth) abolished the common knowledge rule excluding expertise being
admitted on areas of common knowledge.140
2.159 More recently, the Australian, New South Wales and Victorian Law
Reform Commissions published a Report on Uniform Evidence Law, 141 which
sought to conduct an inquiry into the operation of the laws of evidence in the
various jurisdictions. This report addressed whether there was a need to amend
Section 80 (b) of the Evidence Act 1995 which removed the exclusionary rule
against matters of common knowledge.

137
Australian Law Reform Commission ―Interim Report 26 – Evidence‖ (ALRC June
1984) at 354-355.
138
Australian Law Reform Commission ―Interim Report 26 – Evidence‖ (ALRC June
1984) at 354-355.
139
Australian Law Reform Commission ―Interim Report 26 – Evidence‖ (ALRC June
1984) at 354-355. These recommendations were reiterated in Australian Law
Reform Commission ―Report 38 – Evidence‖ (ALRC 1987) para 151(c).
140
Evidence Act 1995 (Cth) s. 80 provides: ―Evidence of an opinion is not
inadmissible only because it is about…. (b) a matter of common knowledge.‖
141
ALRC Report 102; NSWLRC Report 112; VLRC Final Report; ―Uniform Evidence
Law‖ (December 2005).

73
2.160 In the ALRC‘s Issues Paper for this report, it was acknowledged that
as a result of the abolition of the common knowledge rule, dealing with evidence
about such matters as motor vehicle accident reconstruction, which may have
been excluded by the application of the common law rules, involves
unnecessary time and expense. 142
2.161 It was further acknowledged in the issues paper that the abolition of
the exclusionary rule greatly facilitated the routine admission of expert opinion
evidence in relation to identification, which could have the effect of lengthening
cases where identification is a main issue. 143
2.162 In the Final Report of the combined Commissions, it was noted that
several submissions had recommended the reintroduction of the common
knowledge rule. It was argued by the Law Institute of Victoria that it created a
―high risk that juries might rely on, or afford particular probative value to, expert
evidence on matters of common knowledge‖ 144
2.163 Other submissions received by the Commissions argued that the
common knowledge rule prevents difficulties arising where a jury gives undue
weight to the opinion an expert who strays outside his or her area of
expertise.145
2.164 However, the combined Commissions concluded that there was no
need to reintroduce the common knowledge rule. They argued that the mere
existence of the common knowledge rule is not itself preventive of the problem
of experts straying outside their field of expertise. They further argued that there
are sufficient safeguards contained within the Evidence Act 1995 to counteract
the difficulties created by the abolition of the rule.
2.165 For example Section 55(1) requires any evidence tendered to have
the ability to ―rationally affect (directly or indirectly) the assessment of the
probability of the existence of a fact in issue in the proceeding.‖ Therefore an
opinion based excessively on matters of common knowledge may be excluded
as a result of this section.

142
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28
(2004) at 6.52; See also Clark v Ryan (1960) 103 CLR 486.
143
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28
(2004) at 6.53; See also R v Smith (2000) 116 A Crim R 1.
144
ALRC Report 102; NSWLRC Report 112; VLRC Final Report; ―Uniform Evidence
Law‖ (December 2005) at 9.130.
145
ALRC Report 102; NSWLRC Report 112; VLRC Final Report; ―Uniform Evidence
Law‖ (December 2005) at 9.133.

74
2.166 Similarly, section 7, which outlines the general admissibility criteria
for expert evidence, requires such evidence to be ―wholly or substantially‖
based on expert knowledge, which would appear to exclude evidence
predominantly based on matters of common knowledge.
2.167 Furthermore, section 135 gives the court a general discretion to
exclude evidence likely to; be unfairly prejudicial to a party; be misleading or
confusing; or cause undue waste of time.
2.168 These provisions, in the Commissions view, along with the benefits of
the abolition of the common knowledge rule, are sufficient reasons not to
reintroduce the rule.146
(ii) New Zealand
2.169 In its discussion paper on Expert Evidence and Opinion Evidence 147
the New Zealand Law Reform Commission considered the common knowledge
rule and the desirability of its retention.
2.170 The Commission explained that the primary justification for
preventing an expert from giving evidence on a matter within the knowledge of
the finder of fact is that ―to allow expert evidence in such a case would be to
defeat the purpose for which juries are used.‖ 148
2.171 However, the Commission also expressed the view that the rule can
―operate to limit unduly the reception of evidence which would add to the
understanding and knowledge of the judge or jury‖ because of the fact that it
―excludes evidence by its subject matter without regard to its reliability and
value in the trial.‖149
2.172 As a result of these findings, the Commission recommended the
abolition of the common knowledge rule and outlined two main alternatives for
reform based on recommendations of other Law Reform Commissions.

146
ALRC Report 102; NSWLRC Report 112; VLRC Final Report; ―Uniform Evidence
Law‖ (December 2005) at 9.137.
147
New Zealand Law Commission ―Evidence Law: Expert Evidence and Opinion
Evidence – A Discussion Paper (Preliminary Paper 18, December 1991, NZLC).
148
Per McMullin J in R v B (an accused) [1987] 1 NZLR 362, 367 cited in New
Zealand Law Commission ―Evidence Law: Expert Evidence and Opinion
Evidence – A Discussion Paper (Preliminary Paper 18, December 1991, NZLC) at
Para. 39.
149
New Zealand Law Commission ―Evidence Law: Expert Evidence and Opinion
Evidence – A Discussion Paper (Preliminary Paper 18, December 1991, NZLC) at
Para. 40.

75
However, the Commission also acknowledged that both options would have the
same substantive effect and would exclude the same evidence on the same
grounds.
2.173 First, the Australian approach, which allows expert opinion wholly or
substantially based on specialised knowledge, but subject to a general
exclusionary power for quality control. Second, the Federal Rules of Evidence
approach, which allows such expert opinion evidence as would ―assist the trier
of fact to understand the evidence or to determine a fact in issue,‖ subject to a
general exclusionary power.150
2.174 In its final Report on Evidence – Reform of the Law, the New Zealand
Law Commission considered these options for reform and concluded that the
‗common knowledge‘ and ‗ultimate issue‘ rules should be abolished, and that
they should be replaced by a ‗substantial helpfulness‘ test. This would allow
opinion evidence if the opinion is likely to ―substantially help‖ the court or jury to
understand other evidence or ascertain any material fact.151
2.175 The Evidence Act 2006152 has taken on board these
recommendations. Section 25 (1) now provides that:
―An opinion by an expert that is part of expert evidence offered in a
proceeding is admissible if the fact-finder is likely to obtain
substantial help from the opinion in understanding other evidence in
the proceeding or in ascertaining any fact that is of consequence to
the determination of the proceeding.‖
2.176 Section 25 (2) (b) further provides that an opinion by an expert is not
inadmissible simply because it is about a matter of common knowledge.
(d) Conclusion – Is Reform of the Common Knowledge Rule
Necessary?
2.177 As already discussed, the common law rule against permitting expert
evidence on matters of common knowledge remains firmly applied in this
jurisdiction. However, recent case law also reveals an increasing willingness on
the part of the courts to expand the interpretation of what consists of matters
outside the scope of knowledge of the finder of fact and the boundaries of
expertise continues to expand.

150
Federal Rules of Evidence Rule 702 (Available at
http://www.law.cornell.edu/rules/fre/index.html.
151
New Zealand Law Commission ―Evidence –Evidence Reform of the Law‖ (Report
55 Volume 1 August 1999, NZLC) at Para.74-75.
152
No 69 of 2006. The 2006 Act came into force in 2007.

76
(i) Abolition of Common Knowledge Rule
2.178 It is open to the Commission to recommend following the approach
taken in jurisdictions such as Australia and New Zealand, namely the adoption
of a rule whereby expert evidence will not be excluded solely on the grounds
that it is based on a matter of common knowledge.
2.179 The Commission could recommend a new test for admissibility,
modelled on the New Zealand provisions, which takes a functional approach
and requires consideration about whether the trier of fact could usefully receive
assistance from the expert opinion evidence.
2.180 This general test could be balanced by provisions such as those
contained in Australian legislation which give the court a general discretion to
exclude evidence likely to; be unfairly prejudicial to a party; be misleading or
confusing; or cause undue waste of time.
2.181 The possible advantages of such a reform have been detailed above.
It can be argued that there are many issues which can be considered within the
common knowledge of the court but on which expert evidence would still be of
extreme benefit to the finder of fact.
2.182 It can be also argued that the case law demonstrates that the rule
continues to be inconsistently applied, and the courts have continuously
circumvented it, to the extent that it has become extinct in all but name. Its
express abolition would therefore not have significant practical ramifications.
2.183 Such a reform would therefore significantly widen the scope of
admissible expert evidence. However, it could be considered that this is a trend
that is occurring in the case law regardless as the courts appear to be giving an
increasingly broad interpretation to what is outside of the scope of knowledge of
the finder of fact.
(ii) Retention of Common Knowledge Rule
2.184 A strong argument can also be made for the retention of the common
knowledge rule. It is acknowledged that the rule helps to clarify for both the
court and any potential experts for the parties to the case what the precise
scope of expert evidence that will be permitted encompasses.
2.185 It further helps to consolidate in the expert‘s mind that his or her role
is to give expert evidence and not to act as an additional finder of fact giving his
or her view on the issues in the case as this amounts to a usurpation of the role
of the finder of fact.
2.186 The rule also requires the expert to prove to a high standard that the
evidence they are giving involves ‗expertise,‘ and also requires the expert to
ensure that his or her evidence does not stray outside the area of expertise.
Therefore the rule promotes a high standard of expert testimony.

77
2.187 It has already been explained that the abolition of the rule can lead to
problems such as undue lengthening of cases as it has the potential to greatly
widen the matters for which a party will seek to adduce expert evidence.
2.188 There is also the added danger with the abolition of the rule that
where an expert opinion is given on an issue, on which the court would be
perfectly entitled to come to their own opinion, undue weight or deference may
be given to the opinion of the expert as they may be erroneously considered to
be better placed to give an opinion.
2.189 Furthermore, as can be seen in the case law, the rule in practice has
not caused any major difficulties as the courts have been willing to circumvent it
by stretching the boundaries of what will be considered, on the one hand a
matter of common knowledge, and on the other hand, outside the scope of
knowledge of the finder of fact.
2.190 The Commission now turns to set out its provisional
recommendations on this area. In the view of the Commission, the role serves a
valuable purpose in clearly defining the type of expert evidence that will be
given, and bearing in mind the fact that expert opinion evidence is in itself a
strict exception to the rule against opinion evidence, it should remain strictly
applied.
2.191 The Commission further believes that any potential difficulties that
may occur with the operation of the rule, such as its ability to exclude evidence
that may have strong probative value, will be resolved by the court‘s ability to
give a flexible interpretation to what consists of matters of common knowledge
and the willingness of the court to recognised new areas of expertise.
2.192 The Commission provisionally recommends that the common
knowledge rule should not be abolished and that matters of common knowledge
should remain outside of the scope of matters on which expert testimony can be
given.
(3) The Ultimate Issue Rule
2.193 Traditionally, expert opinion evidence about the ultimate issues in the
case was not permitted, as this would effectively erode the jury process and be
a ‗trial by expert.‘153
2.194 The underlying rationale behind the exclusionary rule is therefore the
desire to prevent the role of the judge or jury from being usurped. Another
concern is to prevent the finder of fact from being unduly influenced by an

153 nd
C. Fennell The Law of Evidence in Ireland (2 ed LexisNexis Butterworths 2003)
at 168.

78
expert opinion, which may not be reliable, on an issue which is crucial to the
ultimate decision in the case.
2.195 However, recent cases reveal that this rule is now gradually being
perceived as being unduly restrictive. Furthermore, the courts have always had
difficulties in defining what constitutes the ultimate issue. This has led to
different interpretations being given to the rule. As a result, it has been
increasingly abandoned or, with careful wording, circumvented, in this
jurisdiction, in line with developments in the US, Australasia and Canada, to the
extent that it could now be considered almost obsolete.
(a) Ireland
2.196 The traditional rule against expert evidence on issues which pertain
to the ultimate issues in the case can be seen in The People (DPP) v Kehoe.154
Here, O‘Flaherty J felt that the expert psychiatrist had ―overstepped the mark‖
when he expressed an opinion that the accused did not have an intention to kill
and that the accused was telling the truth.
2.197 This was a murder case and the issue for the court was to decide
whether the accused could avail of the defence of provocation. In expressing an
opinion that the accused did not have an intention to kill, the expert was clearly
trespassing on the duty of the jury to decide on provocation.
2.198 However, a more flexible approach can be seen in later cases where
the courts have recognised that a strict application of the exclusionary rule is
not always appropriate. For example, Barron J. in McMullen v Farrell155 stated a
belief that there are certain cases where professional witnesses are entitled to
express their opinion on the question which the court has to decide.
2.199 This development is not unremarkable as a considerable body of
inconsistent case law was generated by the rule. 156 This inconsistency of
application can be explained by recognising that the reason for adducing expert
evidence was that the finder of fact did not have the expertise on which to base
a decision.

154
[1992] I.L.R.M. 481.
155
[1992] I.L.R.M. 776.
156
For example in Attorney General (Ruddy) v Kenny (1960) 94 I.L.T.R. 185, opinion
evidence that an accused was unfit to drive due to drunkenness was admitted
from a member of the Garda Siochana, whereas in the later English decision R v
Davies [1962] 3 All ER 97 evidence on the same issue was excluded. Although
these decisions are from two different jurisdictions, the ultimate issue rule is a
common law rule that had equal application in both jurisdictions.

79
2.200 One area where the ultimate issue rule has often been raised is in
the context of nullity proceedings. In many such cases a medical inspector will
be appointed to consider whether both parties had the mental capacity to enter
into the marriage, a question which essentially amounts to the ultimate issue in
the case. This fact was acknowledged by Budd J in S(J) v S(C)157
―In some unopposed nullity cases, the Consultant Psychiatrist gives
an opinion verging on the ultimate issue which the Court is going to
have to decide, namely, whether one or other of the parties suffered
from such illness at the time of the ceremony of marriage as to be
incapable of entering into and sustaining a viable marital
relationship.‖158
2.201 However, it can be argued that the role of the medical inspector in
such cases is not decisive of the issues. Although the medical inspector will
give an opinion about whether or not, in his or her expert view, the individual
was mentally capable of entering into a viable marriage at the time of the
marriage, it remains the role of the court to decide whether or not to grant the
annulment. Although the court will take the expert‘s evidence into account this is
not binding and it is open to the court to reject or place little weight to the
evidence and grant a decision that is not reflective of the expert‘s evidence.
2.202 Furthermore, despite the decline in the ultimate issue rule in Irish
case law, the courts are very careful to avoid experts making widespread
findings of fact, and it has been stressed in several cases that the judge cannot
abdicate his role to the expert, no matter how distinguished. 159
(b) England
2.203 The common law rule has been similarly eroded in England. It has
been statutorily abolished in the context of civil law proceedings, but despite
calls for reform, continues to have application in the context of criminal
proceedings.
(i) Civil Proceedings
th
2.204 In its 17 Report Evidence of Opinion and Expert Evidence the
English Law Reform Committee expressed the opinion that in certain cases, the
opinion of an expert on an issue in the proceedings can be a useful aid to the
judge who has to decide the case and thus the Committee saw ―no reason why

157
[1996] IEHC 23; [1997] 2 IR 506.
158
[1996] IEHC 23; [1997] 2 IR 506 at para [8].
159
See for example, F (Orse C) v C [1991] 2 I.R. 330

80
an expert witness should not be asked the direct question as to his opinion on
an issue in the action which lies within the field of his expertise.‖ 160
2.205 Pursuant to the recommendations of the Law Reform Committee, the
Civil Evidence Act 1972 gave express statutory permission for the giving of
evidence on an ultimate issue. Section 3 of the Act provides:
―(1) Subject to any rules of court made in pursuance of Part I of the
Civil Evidence Act 1968 or this Act, where a person is called as a
witness in any civil proceedings, his opinion on any relevant matter
on which he is qualified to give expert evidence shall be admissible in
evidence
(3)In this section "relevant matter" includes an issue in the
proceedings in question.‖
2.206 Notwithstanding this generality however, Section 5(3) of the Act
qualifies this general permission by giving the court the general discretion to
exclude any evidence it so wishes.
2.207 In English civil cases therefore, evidence on an ultimate issue can be
admitted, but equally it can be prohibited where, in the opinion of the court, it is
not relevant or has little or no probative value, or where the court finds for
whatever reason it should not be admitted.
(ii) Criminal Proceedings
2.208 In criminal proceedings, the traditional strict application of the
ultimate issue rule has been replaced by a more flexible approach; however, the
rule continues to apply.
2.209 In DPP v A and BC Chewing Gum Ltd.161 evidence of child
psychologists was excluded in a case involving a charge of contravening the
Obscene Publications Act 1959 by publishing bubble gum battle cards which, it
was alleged, were of an obscene nature. On appeal, the question was raised if
it had been appropriate to exclude the evidence for reasons that it was evidence
on the very issue the court had to determine – i.e. if the cards were of an
obscene nature.
2.210 The court drew a distinction between questions about the effect
literature, purported to be of an obscene nature, would have on young children,
and the question of whether the literature in question was such ―to deprave and
corrupt‖ such children. The second question, they held, was a matter for the

160
Law Reform Committee ―Seventeenth Report – Evidence of Opinion and Expert
Evidence‖ (1970, London, HMSO) at para 63.
161
[1968] 1 Q.B. 159.

81
court, not due to the fact that it amounted to an ultimate issue in the case, but
due to the fact that such a question was not outside the range of scope and
knowledge of the ordinary person.
2.211 In the course of the judgment, however, Parker C.J. alluded to the
general degeneration of the ultimate issue rule:
―With the advance of science more and more inroads have been
made into the old common law principles. Those who practise in the
criminal courts see every day cases of experts being called on the
question of diminished responsibility, and although technically the
final question ‗Do you think he was suffering from diminished
responsibility‘ is strictly inadmissible, it is allowed time and time again
without any objection.‖162
2.212 More recently, in R v Stockwell163 Taylor J expressly stated that the
ultimate issue rule has been effectively abolished in criminal cases in
England:164
―The rationale behind the supposed prohibition is that the expert
should not usurp the functions of the jury. But since counsel can
bring the witness so close to opining on the ultimate issue that the
inference as to his view is obvious, the rule can only be, as the
authors of the last work referred to say, a matter of form rather than
substance. In our view an expert is called to give his opinion and he
should be allowed to do so. It is, however, important that the judge
should make clear to the jury that they are not bound by the expert‘s
opinion, and that the issue is for them to decide.‖ 165
2.213 It is arguable, however, that despite the near eradication of the
ultimate issue rule in England, many of the older cases where evidence on the
ultimate issue was excluded would still have the same result, if not on the same
grounds, if decided today.
2.214 This is because the other admissibility rules, for example the
requirement that the issue is one that is outside the knowledge and expertise of
the court, will still apply to exclude evidence that is not considered necessary as
a result of the court‘s determination not to let the role of judge and jury be

162
DPP v A and BC Chewing Gum Ltd [1968] 1 Q.B. 159.
163
(1993) 97 Cr.App.R. 260.
164
The rule has been similarly abolished in civil cases by Section 3 of the Civil
Evidence Act 1972.
165
R v Stockwell (1993) 97 Cr.App.R. 260 at 265-66.

82
usurped by expert witnesses. This is well demonstrated by the decision of the
court in DPP v A and BC Chewing Gum Ltd.166
2.215 Another example of this approach can be seen in R v Ugoh.167 This
was a group rape case where expert evidence from a psycho-pharmacologist
was admitted to the extent that the expert could state the likely effects of alcohol
on the complainant‘s capacity to consent to sexual intercourse and to explain
how the complainant was likely to act with the quantity of alcohol in her blood
stream, both of which were issues in the case.
2.216 However the expert was not allowed to give evidence on the issue of
whether or not the complainant‘s capacity to consent would have been evident
to those who were with her at the time. The court did not object to the evidence
due to the fact that it went to an ultimate issue in the case. It did object due to
the fact that the accused‘s ability or inability to appreciate the complainant‘s
inability to consent was not an issue for which expert evidence was necessary,
as this was not outside the scope of knowledge of the jury.
―The appellants were normal young men, not themselves under the
influence of drink or drugs, whose ability or inability to appreciate the
complainant‘s inability to consent were a matter for the jury to
assess. Their age, inexperience, tiredness or desires at 3.00 a.m. on
a Saturday night or early Sunday morning were all matters for the
jury to assess.‖168
2.217 As can be seen from this case law, despite uncertainty relating to the
extent of the application of the ultimate issue rule in English criminal
proceedings, the English courts have retained a wariness to admit any expert
evidence that may unduly encroach on the role and function of the judge or jury,
regardless of the rule used to prohibit this evidence.
(c) Australia
2.218 In its 1985 Interim Report on Evidence the Australian Law Reform
Commission recognised that the ultimate issue rule has been repeatedly
criticised by numerous Law Commissions. 169
2.219 They also point out that there have been inconsistencies in the
correct formulation and application of the rule and that ―the courts have

166
[1968] 1 Q.B. 159.
167
[2001] EWCA Crim 1381.
168
Per Mance LJ R v Ugoh [2001] EWCA Crim 1381 at 20.
169
Australian Law Reform Commission Interim Report 26 – Evidence (ALRC June
1984) at para 359.

83
departed from the most commonly understood version of the rule when they
have felt it appropriate, resulting in an ad hoc development of the law.‖ 170
2.220 The Commission further argued that the underlying rationale for the
rule, namely the assumption that the role of the finder of fact would be usurped
without it, is erroneous because such an assumption is founded on a
misunderstanding of the role and function of witnesses, whose task it is to
present the evidence, and that of judges and juries, whose task it is to evaluate
this evidence. 171
―The popular justification for the rule, that it prevented the expert or
lay witness from usurping the function of the jury, is misconceived.
There is no usurpation. The jury, in any event will be told that they
must assess the evidence, lay and expert. It is upon the most
important issues that expert assistance can be crucial and the courts
need to be able to receive it. It is necessary to give both sides, be the
proceedings criminal or civil, full opportunities to call witnesses to
give relevant evidence.‖172
2.221 The Commission therefore opted to concur with the approach of the
United States Federal Rules of Evidence and with the recommendations of Law
Reform Commissions in Canada,173 Scotland174 and South Australia,175 that the
ultimate issue rule be abolished
2.222 With the introduction of the Evidence Act 1995 (Cth) the common law
rule against expert evidence going to the ultimate issue was removed by

170
Australian Law Reform Commission ―Interim Report 26 – Evidence‖ (ALRC June
1984) at para 359.
171
Australian Law Reform Commission ―Interim Report 26 – Evidence‖ (ALRC June
1984) at para 359.
172
Australian Law Reform Commission ―Interim Report 26 – Evidence‖ (ALRC June
1984) at para 743.
173
Ontario Law Reform Commission, Report on The Law of Evidence, 1976, 153-8;
Law Reform Commission of Canada, Report on Evidence, 97, 98 (ss 67-71);
Federal/Provincial Task Force, Report on Uniform Rules of Evidence, para 8-10.
174
Scottish Law Commission Memo No 46 Law of Evidence R.01-R.06. See also
Law Reform Committee, 17; Criminal Law Revision Committee, England and
Wales, Eleventh Report, Evidence (General) HMSO, London. 1977, para 266-
272.
175
Criminal Law and Penal Methods Reform Committee of South Australia, Third
Report, Court Procedure and Evidence, Govt Printer, Adelaide, 1975, para 6.

84
Section 80. In its Issues Paper on Evidence, the Australian Law Reform
Commission examined the operation of section 80. 176
2.223 The Commission acknowledged that the removal of the rule had led
to problems in certain categories of cases, such as professional negligence
cases, where concern was raised that juries in such cases may be overly
influenced by expert evidence on the central issue involved, i.e. whether or not
the defendant has been negligent.177 They also noted that there have been
several calls for the revival of the rule, based on concerns about the effect of
such evidence on a jury.178
2.224 These arguments were revisited in the Final Report on Uniform
Evidence law, where the combined commissions considered whether or not
there is a need for the revival of the rule. 179 The Commission highlighted the
many submissions that had been made in support of the rule but ultimately
came to the conclusion that the uniform Evidence Acts seem to be operating
satisfactorily without the rule and so recommended that the ultimate issue rule
remain abolished and that it should not be reintroduced.180
(d) New Zealand
2.225 In the New Zealand case R v Howe181 the Court of Appeal referred to
the general trend of a move away from a strict application of the ultimate issue
rule;
―The rule that a witness cannot give evidence on the ultimate issue
has now been very much eroded. Experts do commonly give

176
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28
(2004).
177
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28
(2004) at para 6.45.
178
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28
(2004) at para 6.47; ALRC Report 102; NSWLRC Report 112; VLRC Final
Report; ―Uniform Evidence Law‖ (December 2005) at 9.1116.
179
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28
(2004) at para 6.47; ALRC Report 102; NSWLRC Report 112; VLRC Final
Report; ―Uniform Evidence Law‖ (December 2005)
180
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28
(2004) at para 6.47; ALRC Report 102; NSWLRC Report 112; VLRC Final
Report; ―Uniform Evidence Law‖ (December 2005) at 9.1116.
181
[1982] 1 NZLR 618.

85
 evidence on matters on which the ultimate decision in the case
turns.‖182
2.226 The rule and the desirability of its retention was also the subject of
consideration in the discussion paper on Expert Evidence and Opinion
Evidence of the New Zealand Law Reform Commission.183 The Commission
acknowledged that in practice the rule has proved to be too restrictive and tends
to be widely ignored.184
2.227 The Commission acknowledged that the rationale behind the rule is
the danger that the fact finder will be over-impressed by unreliable opinion and
give it weight which it does not deserve.
2.228 However, the Commission expressed the view that this danger is
present regardless of whether the evidence is directed at an ultimate issue or
not, and therefore a more appropriate approach is to assess any evidence
directly ―the primary issue being whether the evidence is helpful and reliable,
not whether it goes to the ultimate issue.‖185 This recommendation was
approved in the New Zealand Law Reform Commission‘s Final Report on
Evidence.186
2.229 The Commission‘s recommendations were implemented in the New
Zealand Evidence Act 2006. Section 25(2)(a) provides that an opinion of an
expert is not inadmissible because it is about an ultimate issue to be determined
in the proceedings.
2.230 Expert evidence on an ultimate issue in a case is therefore statutorily
admissible in both criminal and civil proceedings in New Zealand.

182
[1982] 1 NZLR 618 at 628.
183
New Zealand Law Commission ―Evidence Law: Expert Evidence and Opinion
Evidence – A Discussion Paper (Preliminary Paper 18, December 1991, NZLC).
184
New Zealand Law Commission ―Evidence Law: Expert Evidence and Opinion
Evidence – A Discussion Paper (Preliminary Paper 18, December 1991, NZLC) at
para 43.
185
New Zealand Law Commission ―Evidence Law: Expert Evidence and Opinion
Evidence – A Discussion Paper (Preliminary Paper 18, December 1991, NZLC) at
para 42, 44
186
New Zealand Law Commission ―Evidence –Evidence Reform of the Law‖ (Report
55 Volume 1 August 1999, NZLC) at Para.77.

86
(e) Conclusion - Is Reform of the Ultimate Issue Rule Necessary?
2.231 As already discussed, the ultimate issue rule against permitting
expert evidence on matters which go to the ultimate issue in a case remains
firmly applied in this jurisdiction.
2.232 However, recent case law also reveals difficulties with the rule such
as inconsistent interpretation and application. This has led many jurisdictions to
expressly abolish the ultimate issue rule.
(i) Abolition of the Ultimate Issue Rule
2.233 It has been argued that the underlying basis for the rule, namely the
usurpation of the role of the jury, does not in fact require the rule. It remains the
function of the jury to accept or reject the opinion of the expert and thus to
decide on the ultimate issue; merely hearing the expert‘s opinion evidence on
the ultimate issue does not amount to the expert having the final say.
2.234 It is open to the Commission to recommend the abolition of the
ultimate issue rule and its replacement with a general admissibility test based
on whether or not the evidence is of assistance to the court, whilst at the same
time emphasising the informative and discretionary rather than binding nature of
the expert‘s opinion, and the ultimate duty of the finder of fact to decide the
case.
2.235 Such a reform would remove the inconsistencies and barriers
imposed by the rule and ensure that the judge or jury have all necessary
expertise available to them on every issue involved in the case.
(ii) Retention of the Ultimate Issue Rule
2.236 There is also a valid argument to be made in favour of the retention
of the ultimate issue rule. The argument can be made that if ―ultimate issue‖ is
properly interpreted, by its very definition expert evidence would never be
permitted or considered necessary.
2.237 Expert evidence is often necessary to explain to the judge or jury the
scientific or technical background of issues that are central in a case. However,
the role of the expert in such cases is not decisive of the issues.
2.238 The overriding function of expert testimony is to provide the finder of
fact with the necessary expert knowledge to come to their final conclusions. The
overriding function of the finder of fact is to use the expert information given to
them and then come to its own informed conclusions about the ultimate issue
involved in the case.
2.239 Although the court will take the expert‘s evidence into account, this is
not binding and it is open to the court to reject or place little weight on the
evidence and to give a decision that does not reflect the expert‘s evidence.

87
2.240 This interpretation of the ultimate issue rule endorses both the
underlying roles of the expert witness and of the judge and / or jury. The
ultimate issue rule should this be considered as prohibiting an expert from
giving an opinion if to do so would involve unstated assumptions as to either
disputed facts or propositions of law.187
2.241 The retention of the rule in principle is important, provided that the
court is left with the discretion to allow such evidence in a particular case where
necessary. The Commission is of the view that the rule serves the valuable
purpose of strengthening the role of the finder of fact by ensuring that the expert
witness does not usurp the role of the court to determine the issues in a case. It
is also a useful benchmark for the expert witness to ensure that he or she does
not step over the line in relation to the evidence that is permissible and stray
outside the area of expertise for which expert testimony is being adduced.
2.242 The Commission provisionally recommends that the Ultimate Issue
rule should not be abolished and should have continued application as it does
not impose any excessive difficulties in practice.
2.243 The Commission provisionally recommends that the Court should
continue to be entitled to allow expert evidence to inform and educate the judge
and or jury about the background to the ultimate issue where necessary, whilst
emphasising that the ultimate decision on such issues is for the court and not
the expert.
(4) Expert and Non-Expert Evidence of Fact
2.244 As recognised above, expert witnesses can often give expert
evidence of fact as well as expressing their opinion, such as where certain
results or techniques require expertise to explain. Furthermore, the distinction
between expert and non-expert evidence of fact can, in reality, have significant
ramifications. For example, the costs of an expert witness may be recovered
whereas those of a witness of fact may not. Similarly, while both witnesses of
fact and expert witnesses are equally legally compellable, it is rarely the case in
practice that the court will be called on to compel the attendance of an expert
witness, as generally a party will have a number of possible experts on a
particular issue to choose from, and it is clear that a reluctant or unwilling expert
is likely to do more harm than good to the party‘s case.188

187
This was the interpretation adopted by the Federal Court of Australia in Arnotts
Ltd v Trade Practices Commission (1990) 24 FCR 313, 350 (Lockhart, Wilcox and
Gummow JJ) quoting Eggleston Evidence, Proof and Probability (2nd ed, 1983),
at 147–148.
188 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) 6-003.

88
2.245 In the 1843 decision of Webb v Page189 Maule J set out a clear
definition of the distinctions between witnesses who are called to give evidence
of fact on facts which they have seen, and those expert witnesses who are
called to give evidence of fact on facts of which he is knowledgeable as a result
of experience or study in the field of expertise:
―There is a distinction between the case of a man who sees a fact
and is called to prove it in a Court of Justice, and that of a man who
is selected by a party to give his opinion on a matter with which he is
peculiarly conversant from the nature of his employment in life. The
former is bound, as a matter of public duty, to speak to a fact which
happens to have fall within his knowledge – without such testimony
the court of justice must be stopped. The latter is under no such
obligation. There is no necessity for his evidence, and the party who
selects him must pay him.‖190
2.246 More recently, however, the distinction between the two is not always
clear cut, and several cases have had trouble distinguishing between expert
and non-expert evidence of fact.191 For example in The People (DPP) v
Buckley192 the question arose whether the defendant‘s admission that the
substance recovered from his pocket was cannabis was sufficient evidence that
it was cannabis in the absence of a certificate of analysis from the Garda
Forensic Science Laboratory confirming that it was such.
2.247 Charleton J relied on the decisions in R v Chatwood193 and Bird v
194
Adams in ruling that ―the qualities of cannabis are not now so unusual as to
put it in a different category so that expert evidence of its presence is always
required.‖195 Charleton J appeared to be of the opinion that the defendant could
give factual evidence that the substance he had in his possession was

189
(1843) 1 Car & Kir 23.
190
(1843) 1 Car & Kir 23 at 695.
191
See for example DN Greenwich London Borough [2004] EWCA Civ 1659 a
professional negligence case where the court held that evidence from the
defendant, an educational psychologist, was evidence of fact, not evidence of an
expert witness, notwithstanding the fact that their evidence would be that of a
professional in the issue at hand.
192
[2007] IEHC 150.
193
[1980] 1 W.L.R. 874, [1980] 1 All E.R. 467, 70 Cr. App. Rep. 39.
194
[1972] Crim. L.R. 174.
195
[2007] IEHC 150 at para. 16.

89
cannabis. ―An accused, who admits a substance is cannabis can be, but not
necessarily must be, relied on to know what he is talking about.‖ 196
2.248 In Bird v Adams197 the English High Court pointed out that:
―…there are many instances where an admission made by a
defendant on a matter of law in respect of which he was not an
expert was really no admission at all, e.g., a defendant could not
know in a bigamy case whether a foreign marriage was valid…but
here the…defendant certainly had sufficient knowledge of the
circumstances of his conduct to make his admission at least prima
facie evidence of its truth.‖
2.249 This decision was relied on in R v Chatwood198 where a heroin
addict‘s confession that he had injected heroin was sufficient evidence to prove
that the substance in question was heroin. The Court of Appeal appeared to
characterise the admission as expert opinion evidence, but Hodgkinson &
James argue that there is no real difference between the classic definition of lay
witness evidence as evidence perceived by the senses, and the evidence given
in this case. They consider that the court may have been misled due to the fact
that a heroin rush is not perceived by one of the five senses when injected, but
nevertheless that the admission should have been considered as evidence of
fact.199
2.250 These cases highlight that the lines between expert and non-expert
opinion evidence of fact are often blurred, particularly where narcotics cases are
involved. However it would appear from the foregoing that the courts are willing
to admit the evidence as evidence of fact, as it will remain open to the trier of
fact to decide on the value or lack thereof to attach to such evidence.
2.251 The Commission believes that this is an important requirement as if it
is unclear, greater evidential weight may be given if it appears that the expert is
stating a fact, rather than his or her own opinion.
2.252 The Commission provisionally recommends that experts should be
required, as far as possible, to distinguish clearly between matters of fact and
matters of opinion when giving their expert evidence both orally and in the
expert report.

196
Per Charleton J, The People (DPP) v Buckley [2007] IEHC 150 at para. 16.
197
[1972] Crim. L.R. 174.
198
[1980] 1 W.L.R. 874, [1980] 1 All E.R. 467, 70 Cr. App. Rep. 39.
199 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 82.

90
(5) Non-Expert Opinion Evidence
2.253 Dickson J in R v Abbey200 clearly elucidated one of the reasons for
the extent of the categories of expert evidence:
―The law of evidence…reposes on a few general principles riddled by
innumerable exceptions.‖
(i) Common Law Exceptions to the Rule against Opinion Evidence
2.254 In keeping with this, a number of common law derogations from the
exclusionary rule outside of expert testimony can be seen.
(I) Where Fact and Inference are Indivisible
2.255 For example non-expert opinion evidence may be admitted where it
is necessary to do so because of the indivisibility of fact and inference in a
witness‘ testimony. As explained by Mac Dermott LCJ in Sherrard v Jacob,201
there may be:
―…instances in which the primary facts and the inference to be
drawn there from are so adherent or closely associated that it may be
hard, if not impossible, to separate them.‖
(II) Matters of Common Experience
2.256 The exclusionary rule may also be relaxed where the matter is within
―common experience within the ken of ordinary men,‖202 for example an
observation on someone‘s state of mind at a particular time.
(III) Matters Incapable of Precise Appreciation
2.257 An exception may also be made where the matter is one that is not
capable of exact observation and the most that can be expected is an
approximation or estimation, for example evidence of identification, ―the speed
of a motor car, the size of a crowd, the temperature of a day, and any question
of measurement.‖203
(IV) Catch-All Exception where Convenient to Do So
2.258 Finally, there is a broad, catch-all range of circumstances where
witnesses are permitted to give opinions where this is convenient and the

200
[1982] 2 S.C.R. 24.
201
[1965] N.I. 151.
202
Sherrard v Jacob [1965] N.I. 151at 156.
203
Per Kingsmill Moore J in AG (Ruddy) v Kenny (1960) 94 I. L.T.R. 185 at 190.

91
opinion does not go to the facts of the case. As Lavery J stated in AG (Ruddy) v
Kenny: 204
―…there are innumerable incidents of everyday life upon which an
ordinary person can express a useful opinion and one which ought to
be admitted.‖
2.259 In this case, the ‗incident‘ in question was drunkenness, which, in the
view of the learned judge, was a matter on which an ordinary person was
capable of expressing an opinion, without the need of the expert opinion of a
member of An Garda Siochana or a medical expert.
(ii) Statutory Exceptions to the Rule against Opinion Evidence
2.260 A number of statutory exceptions have also developed over time.
Section 3(2) of the Offences against the State Act (Amendment) Act 1972205
provides that where certain members of the Garda Siochana testify in evidence
that ‗he believes that the accused was at a material time a member of an
unlawful organisation,‘ then this statement constitutes evidence that the
accused was then such a member.
2.261 Other statutory provisions which permit express opinions to be
adduced in evidence include the Proceeds of Crime Act 1996,206 the Domestic
Violence Act 1996207 and the Competition Act 2002.208

204
(1960) 94 I. L.T.R. 185.
205
No. 26 of 1972.
206
Section 8 provides that where a garda states in proceedings that he believes that
property which the respondent is in control of constitutes the proceeds of crime,
or was acquired by the proceeds of crime, then that statement can be evidence of
the matter referred to an the value of the property.
207
Section 3 (4) (b) provides that where an applicant for a barring order states a
belief that he has a legal or beneficial interest in the property the subject of the
barring order, which equals or rivals that of the respondent, the such belief is
admissible in evidence.
208
Section 9 provides that for proceedings under the Act, the opinion of a person
who appears to the court to have the necessary qualifications or experience with
respect to the matter calling for specialist knowledge, shall be admitted in
evidence. It also sets out a number of matters on which expert evidence will be
permitted.

92
E The Weight and Value to be Attached to Expert Evidence
2.262 As will be discussed below, the general approach of the courts is that
reliability of expert evidence is a matter to be assessed at the weight, rather
than admissibility, stage of litigation. Whereas the court might be willing to admit
expert evidence freely, such a favourable view may not always be taken when
assessing the weight to be attached to such evidence.
(1) The Court Assesses the Value of the Expert Evidence
2.263 It is important to note that the court is not obliged to accept or act on
expert evidence and can refuse to admit it or reject it if they so wish. The
decision making function of the court must not be usurped by the expert, and it
remains at all times the duty of the court to determine the truth of the matter at
hand. The evidence of an expert will therefore only be of persuasive, not
binding effect, to be taken into account along with all of the other evidence in
the case.
2.264 This was acknowledged by the court in Davie v Edinburgh
Magistrates209 where the court rejected the defender‘s contention that the court
was bound to accept the evidence of their main expert witness as no similar
expert had been adduced by the pursuer to counter his conclusions. Although
Lord President Cooper acknowledged the fact that the expert‘s opinion was
uncontested, however, he went on to state:
―Expert witnesses, however skilled and eminent, can give no more
than evidence. They cannot usurp the functions of the jury or Judge
sitting as a jury……The scientific opinion evidence, if intelligible,
convincing and tested, becomes a factor (and often an important
factor) for consideration along with the whole other evidence in the
case, but the decision is for the Judge or jury.‖210
(2) The Evidence of Lay Witnesses can be given Greater Weight
than Expert Evidence
2.265 In this jurisdiction it has long been recognised that the court is
entitled to prefer the evidence of lay witnesses over experts if this appears to fit
in better with the facts of the case. In Poynton v Poynton211 the court held that
where two witnesses were advanced in support of a case, one being a witness
of fact who had personally perceived the event, and one being an expert
witness who expressed an opinion on the issue in question (in this case the

209
(1953) SLT 54.
210
(1953) SLT 54 at 57.
211
(1903) 37 ILTR 54.

93
sanity of a testator) the evidence of the witness of fact is to be preferred.
Madden J reasoned:
―We have the highest authority for the proposition that mere
speculative opinion and expressions of opinion cannot reasonably be
compared with the evidence of witnesses who had an opportunity of
applying the ordinary facts of mental capacity….in my opinion the
evidence given on behalf of the plaintiff (supporting the will) runs on a
different plane from the purely speculative evidence, unaccompanied
by any attempt to test the mental capacity of the testator which was
relied on by the defendant, and that the jury acted unreasonably in
not differentiating between the two classes of evidence.‖
2.266 This judgment would appear to hold that where a witness of fact and
an expert witness are presenting conflicting evidence, the testimony of the
witness of fact is to be afforded greater weight. However, it is also evident from
this judgment that the expert witness was criticised for his failure to make a
thorough investigation of the testator.
2.267 In circumstances where the expert has presented a well researched
and thorough argument, particularly where the opinion relates to issues of
medical expertise, it can be argued that the opinion of any expert may in some
cases be of far more benefit than the unlearned opinion of a witness of fact.
However, there are a number of cases in this jurisdiction where lay evidence
was accorded higher weight than expert evidence, which demonstrates that the
courts continue to place a high value on the testimony of lay witnesses.
2.268 For example, the Supreme Court in Hanrahan v Merck, Sharpe &
Dohme Ltd,212 agreed with the plaintiff‘s contention that ―there is greater force
and credibility to be given to the first-hand evidence of witnesses whose
truthfulness was not called into question, as opposed to the largely abstract ex
post facto evidence of scientists who had no direct or personal experience of
the matters complained of.‖213
2.269 There are also a number of examples of the Court preferring the
evidence of lay witnesses over scientific testimony in criminal cases where
experts are advanced in support of a defence of insanity to a murder charge.
For example in both The People (AG) v Fennell (No. 1) 214 and The People (AG)
v Kelly215 the jury preferred lay testimony which supported the proposition that

212
[1988] IESC 1; [1988] ILRM 629 (5th July, 1988).
213
[1988] IESC 1; [1988] ILRM 629 (5th July, 1988) at 35.
214
[1940] I.R. 445.
215
(1962) Frewen 267.

94
the accused was sane at the time of the fatal attack. On appeal, the Court in
both cases stressed that the jury were perfectly entitled to do so.
2.270 A series of nullity cases also demonstrate that the courts are quick to
prefer their own opinion over that of an expert where they believe this is most
appropriate and so attach little value to the expert‘s opinion. 216 This highlights
that the courts are wary prevent a situation of ‗trial by expert‘ and will not attach
high or excessive weight to an expert‘s opinion if the opinion of the court, having
heard all of the evidence, does not correspond.
(3) Factors to be Taken into Account When Determining Weight
2.271 A number of cases have discussed the range of factors to be taken
into account when determining the appropriate weight to attach to any expert
evidence. In this jurisdiction in AG (Ruddy) v Kenny,217 Davitt P outlined some of
the factors need to be taken into account to determine the weight to be given to
such evidence:
―It will depend upon the nature of the evidence, the impartiality of the
witness and his freedom from bias, the facts on which he bases his
opinion, and all the other relevant circumstances.‖
2.272 Similarly, in the English decision Davie v Edinburgh Magistrates218
Lord President Cooper held that the value and weight to be attached to expert
evidence depends upon:
―…the authority, experience and qualifications of the expert and
above all upon the extent upon which his evidence carries conviction
and not upon the possibility of producing a second person to echo
the sentiments of the first expert witness.‖
2.273 However, the main worry is that, despite these guidelines, greater
deference will be given to the opinion of an expert whose testimony is eloquent
and impressive, but not necessarily very relevant or reliable. The danger that
excess weight will be accorded to a particular theory can be heightened when
the task of determining weight is given to a lay jury or tribunal with little legal
training, regardless of warnings given by a judge in summing up to prevent this.
2.274 In a 1999 survey of Australian judicial perspectives on expert
testimony, approximately 70% of judges surveyed conceded that they had had

216
As per Keane J in F (Orse C) v F [1991] ILRM at p.79: ―It is the responsibility of
the courts alone and not of psychiatrists, however eminent, to determine whether
a decree of nullity should be granted.‖
217
(1960) 94 I. L.T.R. 185.
218
[1953] SLT 54.

95
occasions where they had felt that they had not understood expert evidence in
the cases before them. 20% of respondent judges said that they ―often‖
experienced difficulty in evaluating opinions expressed by one expert as against
those expressed by another.219
2.275 This survey reveals a potential difficulty created by the situation
where the judge or jury is required to assess the value of evidence that is being
admitted for the sole reason that it is considered outside of the scope of
knowledge of the judge or jury.
(4) Conflicting Expert Testimony
2.276 The question of weight also encompasses the issue of conflicting
expert evidence. In most litigation, both parties will advance experienced
experts to present their own, often contradictory, arguments. The difficulty for
the finder of fact to decide on which expert to agree with is apparent when one
considers that the reason for adducing the evidence in the first place is the fact
that it is outside the range of knowledge of the court.
2.277 Lord Woolf summarised the inherent contradiction within expert
evidence well in his Final Report on reform of the English civil justice system,
Access to Justice:
―The traditional way of deciding contentious expert issues is for a
judge to decide between two contrary views. This is not necessarily
the best way of achieving a just result. The judge may not be sure
that either side is right, especially if the issues are very technical or
fall within an area in which he himself has no expertise.
Nevertheless, he hopes to arrive at the right answer. Whether
consciously or not his decision may be influenced by factors such as
the apparently greater authority of one side's expert, or the experts'
relative fluency and persuasiveness in putting across their
arguments.‖ 220
2.278 This effectively means that in the ‗battle of the experts,‘ the opinion
given by the witness with the greater oratorical skills may be the one that sways
the opinion of the judge or jury, particularly where complex issues are in
question, regardless of whether the opinion is the more reliable in the
circumstances.

219
Freckelton, Reddy & Selby ―Australian Judicial Perspectives on Expert Evidence;
an Empirical Study‖ (Australian Institute of Judicial Administration, 1999) at
Question 3.7.
220
Lord Woolf Access to Justice, Final Report, HMSO (1996) Ch. 13.8.

96
2.279 It was stressed in Best v Wellcome Foundation Ltd.221 that the
function of the court where there is a conflict of evidence is not to decide which
witness they prefer. Rather, as Finlay CJ stated:
―The function which the court can and must perform is to apply
common sense and a careful understanding of the logic and
likelihood of events to conflicting opinions and conflicting theories
concerning a matter of this kind.222
2.280 This is a reasonable statement; however, it is submitted that, in
reality, expert evidence is being advanced more and more frequently on
complex subjects and theories. In such instances, applying common sense and
logic may not make the task any easier. The inherent difficulty was noted over a
century ago by the great American jurist and judge Learned Hand when he
explained that:
―But how can the jury judge between two statements each founded
upon an experience confessedly foreign in kind to their own? It is just
because they are incompetent for such a task that the expert is
necessary at all…..If you would get at the truth in such cases, it must
be through someone competent to decide.223
2.281 More recently in Ireland, O‘Sullivan J, writing extra judicially, gave a
vivid description of the difficulties he faced in trying a medical negligence case.
The task of the judge, he explained, was ―to apply the rules of probability to two
eminently distinguished and coherent bodies of evidence which were in mutual
conflict,‖ a task which left him feeling like ―an intellectual pygmy looking up at
two giants: from that vantage point one simply cannot tell which of them is
taller.‖224

F Usurpation of the Role of Judge or Jury

2.282 Kenny states that there are three ways in which experts may usurp
the role of others in the legal process. They may usurp the function of the jury
by giving a conclusion on the ultimate issue in the case rather that providing

221
[1993] 3 I.R. 421.
222
[1993] 3 I.R. 421 at 462.
223
Hand ―Historical and Practical Considerations Regarding Expert Testimony‖
(1901) 15 Harvard LR 40 at 54-55.
224
O‘Sullivan ‗A Hot Tub for Expert Witnesses‘ [2004] 4 Judicial Studies Institute
Journal 1. In this article, he recommends adopting the Australian Competition
Tribunal model which consists of a panel, or ‗hot tub‘ of opposing experts who
debate the issue amongst themselves without initial intervention from lawyers.

97
information to the jury to enable them to reach a more informed conclusion.
They may usurp the role of the judge, by imposing on the jury their own
interpretation of statutory terms such as ‗responsibility.‘ Finally, they may usurp
the role of the legislature by giving opinions on general policy in relation to the
convictions. For example, ―that people who are sick in a certain way should not
be sent to prison.‖225
2.283 Therefore, along with the risk that unwarranted weight will be given to
expert evidence, there is also a related and overlapping risk that the opinion of
the expert will be taken on board to decide the case at hand, resulting in an
effective ‗trial by expert.‘ This is particularly so now, since the rule prohibiting
the proffering of expert witness opinion on the ultimate issues of a case has
been all but abandoned.
2.284 It stands to reason that there is a real risk that a lay jury, and in some
cases even experienced judges, might place more emphasis on the opinion
given by esteemed experts than on the conclusions that they might draw
themselves. It has been repeatedly stressed in the case law that a finder of fact
cannot abdicate his or her function to an expert no matter how distinguished.
2.285 For example in R v Turner226Lawton J was quite firm in his comments
that the courts would be vigilant to prevent ‗trial by psychiatrist‘:
―We do not find that prospect attractive and the law does not at
present provide for it… we are firmly of the opinion that psychiatry
has not yet become a satisfactory substitute for the common sense of
juries or magistrates on matters within their experience of life.‖227
2.286 In this jurisdiction, O‘Flaherty J in The People (DPP) v Kehoe,228
pointed out that the questions as to whether the accused was telling the truth
and whether he had an intention to kill were:
―…clearly matters four-square within the jury‘s function and a
witness, no more than the trial judge or anyone else, is not entitled to
trespass on what is the jury‘s function.‖ 229
2.287 In The People (DPP) v Yusuf Ali Abdi230 Hardiman J warned:

225
Kenny ―The Expert in Court‖ (1983) 99 LQR 197 at 208.
226
[1975] 1 QB 834 CA.
227
[1975] 1 QB 834 CA at 842-3.
228
[1992] I.L.R.M. 481.
229
Per O‘Flaherty J, in The People ( DPP) v Kehoe [1992] I.L.R.M. 481.
230
[2004] IECCA 47.

98
 ―The role of the expert witness is not to supplant the tribunal of fact,
be it judge or jury, but to inform the tribunal so that it may come to its
own decision. Where there is a conflict of expert evidence it is to be
resolved by the jury or by the judge, if sitting without a jury, having
regard to the onus of proof and the standard of proof applicable in the
particular circumstances. Expert opinion should not be expressed in
a form which suggests that the expert is trying to subvert the role of
the finder of fact.‖
2.288 Similarly, in The People (DPP) v Fox231 the Court approved of the
comments of Lord President Cooper in the Scottish case Davie v Edinburgh
Magistrates.232 This extract has since been cited with approval in a number of
cases in this jurisdiction:233
―However skilled or eminent, he can give no more than evidence.
They cannot usurp the functions of the jury or the judge, sitting as
jury, any more than a technical assessor cannot substitute his
evidence for the judgment of a court.‖
2.289 Related sentiments have been expressed in a series of nullity cases
where the courts have recognised that on the one hand, the evidence of
psychologists, psychiatrists and social workers is now recognised of being of
great importance in dealing with nullity cases, on the other hand however,
deciding the marital status of the parties remains the ultimate responsibility of
the judge. The function of any expert witness adduced is to help with this task
and not to usurp it. For example, Keane J stated in F(Ors C) v C:234
―How was the Court to decide what these phrases mean in the
context of any particular case? Not certainly by reference to the
evidence of psychiatrists; they can, of course, assist the court as to
the nature and extent of any mental illness suffered by a spouse, but
it is the responsibility of the courts alone and not of psychiatrists,
however eminent, to determine whether a decree of nullity should be
granted.‖
2.290 Similarly, Murphy J stressed in KWT v DAT235 that:

231
Special Criminal Court, 23 January 2002.
232
(1953) SLT 54.
233
See for example L(P) v DPP [2002] IEHC 25 (16th April, 2002); The People
(DPP) v Murphy [2005] IECCA 52 (5 May 2005).
234
[1991] ILRM 79.
235
[1992] 2 IR 11.

99
 ―…at the end of the day it seems to me that I cannot abdicate my
function to the experts, however distinguished, and even though they
are, in the present case, in agreement on the point that the parties to
marriage did not have an adequate emotional capacity to sustain the
relationship of marriage.‖236
2.291 This point was cited with approval in MCG(P) v F(A) 237 and F(G) v
238
B(J), highlighting the continuing reluctance of the judiciary to pass the
responsibility of deciding on essential elements of the case to an expert
witness. Budd J stated:
―When it comes to deciding the issues confronting the Court then the
buck firmly lands on the desk of the Court and cannot be shifted to
the inspector, however experienced and respected the medical
inspector may be.‖239
2.292 In practice however, where the judge is being asked to adjudicate on
issues about which he or she is completely inexperienced, and on which he or
she is undecided, it stands to reason that considerable deference will be given
to witnesses who present themselves as expert in the field, and present
convincing and impressive argument, peppered with technical terminology,
even if this is not the most accurate representation of the facts in the case.
2.293 Guidance was given about the role and function of an expert witness
in the English case of Liddell v Middleton240 where Stuart-Smith LJ said:
―The function of the expert is to furnish the Judge with the necessary
scientific criteria and assistance based upon his special skill and
experience not possessed by the ordinary layman to enable the
Judge to interpret the factual evidence of the marks on the road, the
damage or whatever it may be. What he is not entitled to do is to say
in effect "I considered the statements and/or evidence of the
witnesses in this case and I conclude from their evidence that the
Defendant was going at a certain speed, or that he could have seen
the Plaintiff at a certain point.‖ As this is essentially a job for the jury
to decide.

236
[1992] 2 IR 11 at 21.
237
[2000] IEHC 11 (28th January, 2000).
238
[2000] IEHC 112 (28th March, 2000).
239
[2000] IEHC 11 (28th January, 2000) at 20.
240
(1996) PIQR 36.

100
2.294 He went on to consider the particular facts of the case and concluded
in this way:
"We do not have trial by expert in this country; we have trial by
Judge. In my judgment, the expert witnesses contributed nothing to
the trial in this case except expense. For the reasons I have
indicated, their evidence was largely if not wholly irrelevant and
inadmissible. Counsel on each side of the trial succumbed to the
temptation of cross-examining them on their opinion, thereby
lengthening and complicating a simple case.

G Junk Science and the Need for a Reliability Test

2.295 Testing the reliability of evidence can be particularly difficult where
scientific or technical evidence is in question. It has long been recognised that
the disciplines of law and science are founded in very different principles and
thus their interrelation can be strained. Heffernan points out that the two
disciplines ―are characterised by notable differences in ideology, expectation,
methodology, language and discourse.‖ 241
2.296 Applying scientific information to principles of law can prove to be
difficult task. This is because, according to Heffernan:
―Lawyers and scientists are creatures of their respective cultures;
they neither approach litigious issues in the same way nor speak the
same professional language. The search for scientific truth is a
markedly different enterprise from the law‘s inquiry into the proof of
allegation and counter-allegation.‖242
2.297 Problems can arise therefore where a party seeks to present expert
evidence about a recent scientific advance or other novel or emerging area of
expertise which may not have received widespread approval or recognition.
2.298 It can be difficult for a lay judge or jury, entirely unacquainted with
scientific or technical fields of expertise, to assess whether the evidence coming
before them has a reliable and well-established foundation, or whether it
amounts to what has been termed ‗junk science.‘ 243 The term ‗junk science,‘
refers to the abuse of science and scientific terminology in the courtroom setting
by importing irrelevant or inaccurate evidence to advance a party‘s arguments

241
Heffernan Scientific Evidence, Fingerprints and DNA (Firstlaw).
242
Heffernan ―Gauging the Reliability of Expert Witnesses‖ (2006) 6 JSIJ 140 at 150.
243
The term ‗junk science‘ was first coined in the renowned work by Huber Galileo’s
Revenge: Junk Science in the Courtroom (Basic Books 1991).

101
2.299 The evidence envisaged under this section is that which relates to
new and emerging areas of expertise; scientific advances and new theories and
techniques that have not been previously tested in the courts. The various
jurisdictions have taken different approaches regarding how best to establish
the reliability of such expert testimony.
(1) Ireland
2.300 In Ireland, all that is required in order for a party to have expert
evidence adduced is that the party can prove that the expert evidence is
relevant in that it is necessary to resolve the issue at hand, and that the party
can prove that the person in question is a sufficiently qualified expert in the
particular field.
2.301 In contrast with other jurisdictions, there is no admissibility test which
requires the party to demonstrate that the expert evidence they purport to
adduce can be considered as being founded on a sufficiently reliable basis.
(a) Problems Generated by Lack of Formal Reliability Test
2.302 It is clear that in certain instances it may not always be clear to the
court whether expertise would be helpful in a particular case, or whether or not
an issue is outside the scope of expertise of the finder of fact.
2.303 Although the majority of this evidence will undoubtedly be trustworthy
and dependable, there have been examples of infamous cases albeit a small
number) where inaccurate, for the most part scientific, evidence has led to
serious miscarriages of justice.
(b) Judicial Discretion to Refuse Unreliable Evidence
2.304 It can be argued that the existing admissibility requirements do, to a
certain extent, address the issue of reliability, as deciding on the
appropriateness of a witness‘ expertise and the necessity for the evidence to be
based on the facts will inevitably involve a determination of how reliable the
evidence is.
2.305 Notwithstanding the absence of a set test, the court at all times
retains the discretion as to whether to admit expert evidence or not, and the
case law demonstrates that the Irish courts are keenly aware of the potential for
unreliable evidence and will not hesitate to reject evidence that does not meet
the appropriate threshold.
2.306 Although the cases in this jurisdiction that have considered the
trustworthiness of expert evidence, and the related need for a reliability
requirement are rare, on a number of occasions expert evidence has been
rejected on the basis that it is not sufficiently supported by legitimate expertise.

102
(c) Case Law Rejecting Expert Evidence
2.307 A case where expert evidence was rejected as unreliable is The
People (DPP) v Fox.244 Here, the prosecution sought to rely on the evidence of
an expert on handwriting to prove that it was the accused‘s signature on a
document in issue. The Court rejected this evidence, finding that the evidence
in question was not backed by any scientific criteria which would have enabled
the finder of fact to test the accuracy of the expert‘s conclusions.
2.308 It was pointed out that it was common practice when giving expert
evidence of handwriting to give the similarities and dissimilarities of the writing
which the expert relies on in evidence and this was not done here. Similarly, the
expert was criticised for his sole reliance on lower case writing without giving an
explanation for doing so.
2.309 Similarly in NC v DPP 245 the Supreme Court refused to prosecute the
accused in circumstances where hypnosis had been used on the complainant to
recover suppressed memory of sexual offences. It was not that hypnosis was
seen as an illegitimate form of expertise that lead to this result but rather the
fact that the therapist was not present at the trial for questioning about the
procedures involved, and considerable uncertainty surrounded the date and
circumstances of the alleged recovery of memory.
2.310 The Court was thus concerned about the absence of an ―effective
test or control of the mechanism of alleged recovered memory.‖ This would infer
that the Irish courts will require a high level of proof of the reliability of any novel
form of expertise, even if no formal reliability test has been enunciated.
(d) Reliability of DNA Evidence
2.311 The majority of judicial consideration on the appropriate reliability test
for expert testimony has been based on an examination of DNA evidence and
its trustworthiness.
2.312 In its Consultation Paper on the Establishment of a DNA Database
the Commission outlined a number of cases that had considered the reliability
of DNA evidence.246 It was noted that the reliability of DNA technology has been

244
Special Criminal Court, January 23, 2002.
245
Supreme Court, 5 July 2001.
246
See Law Reform Commission Consultation Paper on The Establishment of a
DNA Database LRC CP 29-2004 at 9.01-9.50.

103
accepted in general terms in Ireland in The People (DPP) v Lawlor247 and in The
People (DPP) v Horgan.248
2.313 The Commission also outlined, however, a number of cases where
the individual DNA evidence given in the case was criticised or rejected. For
example, in People (DPP) v Howe249 an acquittal was directed as the DNA
evidence was considered unreliable for two reasons. First, the forensic scientist
had no qualification in statistics therefore could not determine the probability of
the DNA belonging to another person. Second, the prosecution had not
disproved that the accused did not have a brother, who could have had similar
DNA.
2.314 A strong warning was given in the context of DNA testimony in
People (DPP) v Allen250 where the Court of Criminal Appeal admitted the
evidence, but stated:
―Expert evidence comparing DNA profiles is a comparatively recent
scientific technique, and indeed it would appear that it is still being
perfected. As in many scientific advances, the jury have to rely
entirely on expert evidence. One of the primary dangers involved in
such circumstances is that, the matter being so technical, a jury could
jump to the conclusion that the evidence is infallible. That, of course,
is not so in the case of DNA evidence, at least in the present state of
knowledge.‖251
(e) Conclusion
2.315 The case law already discussed demonstrates that even though
there is no formal test or yardstick which the court can use to help determine
whether or not the expert evidence which a party wishes to adduce is reliable, in
reality the Irish courts are anxious to ensure that expert evidence is
substantially sound before permitting it to form part of the evidence before the
court.
2.316 In contrast with other jurisdictions there has been little judicial debate
or commentary in this jurisdiction on the reform of this area or on the merits of

247
Central Criminal Court 2 December 2005 – See Law Reform Commission
Consultation Paper on The Establishment of a DNA Database LRC CP 29-2004
at 9.04.
248
Irish Examiner 25 June 2002.
249
Irish Times 15 October 2003, Central Criminal Court (Butler J).
250
[2003] 4 I.R. 295
251
[2003] 4 I.R. 295 at 4.

104
the introduction of additional admissibility criteria based on the reliability of the
evidence.
2.317 However, there is growing academic literature on the issues of
reliability and junk science, and other jurisdictions have implemented various
reforms in this context. Legal developments in the United States in this area
have been the main catalyst for reform internationally, and notable case law in
the US (for example the Frye and Daubert decisions) has been used as the
basis for discussion on the need to introduce a reliability test wherever this has
been considered.
(2) United States
2.318 The American courts have imposed more rigorous admissibility
requirements than most other common law jurisdictions in an effort to prevent
unreliable testimony and to ensure against the proliferation of junk science.
(a) The Frye Test
2.319 The US debate on this issue began with the landmark decision in
Frye v United States.252 Here, the defendant sought to adduce expert evidence
about the results of a systolic blood pressure deception test, the precursor to
the lie detector test, to prove his innocence. The court refused to allow the
evidence to be admitted. In the course of the judgment they set down a new test
for the reliability of expert evidence,
―Just when a scientific principle or discovery crosses the line between
the experimental and demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential force of the principle
must be recognized, and while courts will go a long way in admitting
expert testimony deduced from a well-recognized scientific principle
or discovery, the thing from which the deduction is made must be
sufficiently established to have gained general acceptance in the
particular field in which it belongs.‖253 (emphasis added)
2.320 This test engendered considerable debate and sometimes criticism in
the US but became the dominant test in the US for the next 70 years. 254 It
required parties who wished to adduce expert evidence to prove that the
evidence in question had gained ‗general acceptance‘ in the field of expertise

252
(1923) 54 App. D. C. 46, 293 F. 1013.
253
Frye v United States (1923) 54 App. D. C. 46, 293 F. 1013 at 1014.
254
Imwinkelried, ―‘Junk Science‘ in the Courtroom: Will the Changes in the American
Law of Expert Testimony Influence the Irish Courts?‖ (2004) 26 Dublin University
Law Journal 83.

105
from which it purported to belong, by demonstrating that the principle had
gained consensus amongst a considerable body of experts in the field.
(b) The Daubert Test
2.321 The decision in Daubert v Merrell Dow Pharmaceuticals, Inc 255 was
the next major case to fuel the growing debate on ‗junk science.‘ This was a civil
action where the plaintiffs claimed that a pregnant mother‘s use of the
defendant‘s anti-nausea drug, Bendectin, could result in her child developing
limb defects and sought to advance significant expert evidence to support this
proposition.
2.322 The US Supreme Court refused to admit the plaintiffs evidence and
in doing so, held that the Frye test had been impliedly overruled by Rule 702 of
the Federal Rules of Evidence which deals with the use of ‗scientific, technical
or other specialised knowledge‘ by the courts, as nothing in that test required
‗general acceptance‘ as a prerequisite to admissibility.256 On the basis of Rule
702, the Court then set down a new test;
―To summarize: ‗general acceptance‘ is not a necessary precondition
to the admissibility of scientific evidence under the Federal Rules of
Evidence, but the Rules of Evidence - especially Rule 702 - do
assign to the trial judge the task of ensuring that an expert's
testimony both rests on a reliable foundation and is relevant to the
task at hand. Pertinent evidence based on scientifically valid
principles will satisfy those demands.‖
2.323 Blackmun J recognised that this new test may cause some difficulties
in its application, therefore a non-exhaustive list of factors that would help
establish if a science or proposition was sufficiently empirically tested were
listed in the course of the judgment.257 These are summarised by Imwinkelried
as including;
i) Whether the proposition is testable empirically. For example, if an
astrologer's claim cannot be tested in that fashion, it cannot qualify
as admissible ―scientific knowledge‖ under Rule 702.
ii) Whether the proposition has been tested. The proposition may be
testable and plausible; however it is a grave mistake to equate the

255
509 U.S. 579; 113 S. Ct. 2786 [1993].
256
Federal Rule 702 provides; ―If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training or
education, may testify thereto in the form of an opinion or otherwise.‖
257
509 U.S. 579; 113 S. Ct. 2786 [1993] at 593-594.

106
 plausible and the proven. The proposition does not deserve scientific
status until it has literally been put to the test.
iii) Whether the theory has a ―known or potential rate of error‖. When the
technique has an ascertainable error rate, the jury can more
intelligently decide how much weight to ascribe to the expert's
testimony.
iv) Whether the proposition has been subjected to peer review and
publication. On the one hand, Justice Blackmun insisted that peer
review is ―not a sine qua non of admissibility‖. A given proposition
may be so new, or of such limited interest that it is unrealistic to
expect it to have been published. On the other hand, peer review is
―a relevant… consideration‖. Peer review can be circumstantial
evidence that the proposition rests on proper scientific procedure.
Publication ―increases the likelihood that substantive flaws in
methodology will be detected. …‖
v) Whether there are standards for using the methodology. The more
standardised the procedures, the easier it is for other scientists to
retest the proposition in question, and therefore the sounder the
underlying methodology.
vi) Whether the methodology is generally accepted. Under Frye, general
acceptance is an exclusive test for admissibility. Frye elevated
general acceptance to the status of a test. Although the Daubert
Court rejected Frye, the Court correctly recognised that, like peer
review, general acceptance can be persuasive circumstantial
evidence that the methodology is sound. When a methodology is old
enough to have garnered general acceptance, other scientists have
had a chance to retest the proposition. If the technique still enjoys
widespread support, presumably no one has identified significant
deficiencies in the research. 258
2.324 This decision can be seen as moving the focus from requiring the
evidence to be generally accepted, to requiring the evidence to be empirically
validated. Bernstein argues Daubert requires the court to address two distinct
issues:

258
Imwinkelried ―‘Junk Science‘ in the Courtroom: Will the Changes in the American
Law of Expert Testimony Influence the Irish Courts?‖ (2004) 26 Dublin University
Law Journal 83.

107
 ―First, are the studies or data upon which the expert is relying
trustworthy? Second, if so, are these studies or data actually
probative of the issues before the court?‖259
2.325 Blackmun J in Daubert also explained that whereas Frye focused ―on
exclusively ‗novel‘ scientific techniques,‘ Daubert was not so limited and any
expertise sought to be adduced in evidence, not just new evidence, would have
to conform to its requirements.260 This greatly expanded the categories of
evidence which could be scrutinised in terms of their reliability, as Frye
jurisdictions had often treated ‗soft-science‘ as being exempt from compliance
with the general acceptance test.261
(c) Post-Daubert Position
2.326 In the aftermath of the Frye and Daubert decisions, different
approaches were taken by the various states. Although a number of states still
subscribe to the Frye test, the majority of states now follow the Daubert
standard.262 Indeed, the case law following Daubert saw the courts become
increasingly strict about the reliability of expert testimony.
(i) Expert Opinion can be Unreliable even if Methodologies are
Sound
2.327 For example in General Electric Co. v Joiner263 the respondent
claimed that his exposure to certain materials used in the course of his
employment ―promoted‖ his development of small cell lung cancer and
advanced expert evidence in the form of rodent studies and other vague
epidemiological data in support of his claim. The petitioners criticised the

259
Bernstein ―Junk Science in the United States and the Commonwealth‖ (1996) 21
Yale Jn‘l Intn‘l L. 123 at 136.
260
As per Blackmun J in Daubert v Merrell Dow Pharmaceuticals, Inc 509 U.S. 579;
113 S. Ct. 2786 (1993) fn. 11 ―Although the Frye decision itself focused
exclusively on "novel" scientific techniques, we do not read the requirements of
Rule 702 to apply specially or exclusively to unconventional evidence. Of course,
well established propositions are less likely to be challenged than those that are
novel, and they are more handily defended.‖
261
Imwinkelried ―‘Junk Science‘ in the Courtroom: Will the Changes in the American
Law of Expert Testimony Influence the Irish Courts?‖ (2004) 26 Dublin University
Law Journal 83.
262
Bernstein ―Junk Science in the United States and the Commonwealth‖ (1996) 21
Yale Jn‘l Intn‘l L. 123.
263
522 US 136 (1997).

108
testimony of the experts in that it was ―not supported by epidemiological studies
. . . [and was] based exclusively on isolated studies of laboratory animals.‖
2.328 The Supreme Court approved the decision of the District Court to find
in favour of the respondents, finding that the studies cited by the expert were
not sufficient support for his conclusions. For the Court, Rehnquist J urged
future courts to exclude expert evidence that relied on misguided reasoning to
infer causation from the available evidence, even if the underlying general
methodology used was valid:
―…conclusions and methodology are not entirely distinct from one
another. Trained experts commonly extrapolate from existing data.
But nothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence which is connected
to existing data only by the ipse dixit of the expert. A court may
conclude that there is simply too great an analytical gap between the
data and the opinion proffered.‖264
(ii) Expert Opinion can be Unreliable Even Where the Expertise is
Non-Scientific
2.329 Likewise in Kumho Tyre Co v Carmichael265 the excluded testimony
in question was that of a tyre expert who sought to give evidence of ―tyre
technology‖ to the effect that he could give the reasons for tyre failure having
examined the tyre in question.
2.330 The Supreme Court expanded on Blackmun‘s comments in Daubert
to the effect that the range of expert testimony that could be required to prove
its methodologies were sound is no longer confined to scientific fields but can
be applied to all fields of expertise, even those where expertise is being claimed
as a result of technical or practical experience:
―We do not believe that Rule 702 creates a schematism that
segregates expertise by type while mapping certain kinds of
questions to certain kinds of experts. Life and the legal cases that it
generates are too complex to warrant so definitive a match.‖266
2.331 Breyer J acknowledged that the criteria set down in Daubert which
are to be used to assess the validity of any expert testimony are not definitive
but are meant to act as helpful guidelines. This is a recognition of the fact that
not all types of expert testimony are conducive to scientific methods of empirical
testing.

264
Rehnquist J in General Electric Co. v Joiner 522 US 136 (1997).
265
526 U.S. 137 (1999).
266
Breyer J in Kumho Tyre Co v Carmichael 526 U.S. 137 (1999).

109
2.332 However, Breyer J did find that some of the Daubert criteria could be
used to evaluate the validity of non-scientific evidence, even experience based
testimony, and that the individual court in each case should have a certain
degree of leeway in relation to what factors are used to determine the reliability
of expert evidence. He gave the following examples:
―In certain cases, it will be appropriate for the trial judge to ask, for
example, how often an engineering expert‘s experience-based
methodology has produced erroneous results, or whether such a
method is generally accepted in the relevant engineering community.
Likewise, it will at times be useful to ask even of a witness whose
expertise is based purely on experience, say, a perfume tester able
to distinguish among 140 odors at a sniff, whether his preparation is
of a kind that others in the field would recognize as acceptable.‖ 267
(d) Conclusion
2.333 The willingness of states to apply increasingly stringent admissibility
requirements came about in the wake of an increased awareness that much of
the expert evidence that was being proffered in litigation at the time was proving
to be erroneous or inaccurate.268
2.334 The tests in Frye and Daubert greatly reduced the possibility for
inaccurate evidence or junk science being admitted as expert testimony, and
both tests have been subject of copious commentary in the US, both
academically and in the case law.269

267
Per Beyer J Kumho Tyre Co v Carmichael 526 U.S. 137 (1999).
268
See Imwinkelried, ―‘Junk Science‘ in the Courtroom: Will the Changes in the
American Law of Expert Testimony Influence the Irish Courts?‖ (2004) 26 Dublin
University Law Journal 83 for examples for studies conducted in the 1980‘s and
1990‘s revealing vast discrepancies in evidence adduced in court.
269
For extensive discussion on US developments in the context of reliability in expert
testimony see, inter alia: Imwinkelried, ―‘Junk Science‘ in the Courtroom: Will the
Changes in the American Law of Expert Testimony Influence the Irish Courts?‖
(2004) 26 Dublin University Law Journal 83; Bernstein ―Junk Science in the
United States and the Commonwealth‖ (1996) 21 Yale Jn‘l Intn‘l L. 123; Faigman
& Ors ―Check Your Crystal Ball at the Courthouse Door Please: Exploring the
Past, Understanding the Present and Worrying about the Future of Scientific
Evidence‖ (1994) 15 Cardoza LR 1799; Koutchoukos ―Solomon meets Galileo
(And Isn‘t Quite Sure What to Do With Him)‖ (1994) 15 Cardoza LR 2237;
Imwinkelried ―The Next Step After Daubert: Developing a Similarly
Epistemological to Ensuring the Reliability of Non-Scientific Expert Testimony‖
(1994) 15 Cardoza LR 2271; Bernstein ―Expert Witnesses, Adversarial Bias, and

110
(3) Australia
2.335 In its Issues Paper on Evidence, which formed part of its Review of
the Evidence Act 1995, the Australian Law Reform Commission gave detailed
consideration to what they term ‗the field of expertise rule,‘ or the requirement
that ―claimed knowledge or expertise should be recognised as credible by
others capable of evaluating its theoretical and experiential foundations.‖ 270
2.336 The Commission explained that the Uniform Evidence Act does not
contain a specific ‗area of expertise‘ requirement, and that all the act requires is
that the person purporting to give expert evidence have ―specialised
knowledge.‖271
2.337 They further explain that the ‗field of expertise‘ rule has been the
subject of contention at common law and that although different approaches
have been taken within the various Australian jurisdictions and courts, that the
applicable test has not yet been fully resolved. 272
(i) High Court of Australia
2.338 The High Court of Australia originally adopted a ‗general acceptance‘
style test. In HG v The Queen.273 The court held that in order to qualify as expert
evidence, the expert‘s knowledge and experience of a particular area must be:
―….sufficiently organised or recognised to be accepted as a reliable
body of knowledge or experience.‖274
2.339 The question of reliability was reconsidered more recently in Velveski
v The Queen.275 Here, the appellant was convicted of the murder of his wife and
three children and appealed on the grounds that inter alia expert evidence
should not have been admitted from the prosecution which sought to prove that
the appellant‘s wife had been murdered rather than committed suicide. The

the (Partial) Failure of the Daubert Revolution‖ (2007) George Mason Law &
Economics Research Paper No. 07-11 Available at SSRN:
http://ssrn.com/abstract=963461.
270
Australian Law Reform Commission Review of the Evidence Act 1995, IP 28
(2004) at 6.13.
271
Section 79 Evidence Act 1995.
272
Australian Law Reform Commission Review of the Evidence Act 1995, IP 28
(2004) at 6.20.
273
(1999) 197 CLR 414, [58].
274
(1999) 197 CLR 414, [58].
275
(2002) H.C.A. 4 (14 February 2002).

111
appellant argued that such evidence should not be admissible as it was not
established that, based on the test in HG v The Queen:276
―...there is a reliable body of knowledge and experience, based on
the observation of wounds, which would enable a person to express
an expert opinion whether particular wounds were self-inflicted.‖277
2.340 This was rejected on appeal where it was held that whether wounds
may have been suicidally self-inflicted is capable of being the subject of expert
evidence if a suitable foundation as to the witnesses' training, study or
experience has been laid. They went on to discuss what would constitute
sufficient ‗training, study or experience:‘
―[T]he words used in the section, necessarily include, as they must in
all areas of expertise, observations and knowledge of everyday
affairs and events, and departures from them. It will frequently be
impossible to divorce entirely these observations and that knowledge
from the body of purely specialised knowledge upon which an
expert's opinion depends. It is the added ingredient of specialised
knowledge to the expert's body of general knowledge that equips the
expert to give his or her opinion.‖278
2.341 These comments could be interpreted as a move away from
assessing reliability in terms of how well it has been organised or recognised
towards a Daubert-style assessment of the evidence in terms of the expert‘s
training, study or experience.
2.342 These judgments have led commentators to find that the approach of
the Australian High Court is that while recognition may be one basis for a
conclusion of reliability, under the uniform Evidence Acts the ultimate test is
reliability‘ of the expert‘s knowledge or experience in an area.279
(ii) South Australia
2.343 In the South Australian decision of R v Bonython280 King CJ set down
a test for the admissibility of expert evidence in that jurisdiction. This test has

276
(1999) 197 CLR 414, [58].
277
(2002) H.C.A. 4 (14 February 2002) at 154.
278
(2002) H.C.A. 4 (14 February 2002) at 158.
279
Odgers Uniform Evidence Law (6th ed, 2004) at 1.3.4260 Cited in: Australian Law
Reform Commission, Review of the Evidence Act 1995, IP 28 (2004) at para
6.47; ALRC Report 102; NSWLRC Report 112; VLRC Final Report; ―Uniform
Evidence Law‖ (December 2005) at 9.37.
280
[1984] 38 SASR.

112
been cited with approval on several occasions in various common law
jurisdictions.
―Before admitting the opinion of a witness into evidence as expert
testimony, the judge must consider and decide two questions. The
first is whether the subject matter of the opinion falls within the class
of subjects upon which expert testimony is permissible. This first
question may be divided into two parts; a) whether the subject matter
of the opinion is such that a person without instruction or experience
in the area of knowledge or human experience would be able to form
a sound judgment on the matter without the assistance of witnesses
possessing special knowledge or experience in the area and b)
whether the subject matter of the opinion forms part of a body of
knowledge or experience which is sufficiently organised or
recognised to be accepted as a reliable body of knowledge or
experience, a special acquaintance with which of the witness would
render his opinion of assistance to the court. The second question is
whether the witness has acquired by study or experience sufficient
knowledge of the subject to render his opinion of value in resolving
the issue before the court.‖281
2.344 Therefore King CJ‘s admissibility test can be summarised as
requiring:
1. The evidence comes within the categories of subjects on which expert
evidence is admissible. This can be broken down to two further
requirements;
a. the subject matter of the evidence is one that requires special
knowledge or assistance in order to make a sound judgment on
(i.e. it is outside the scope of knowledge of the ordinary person)
b. the subject matter has been accepted as forming part of a
sufficiently organised or recognise reliable knowledge or
experience to be considered a reliable body of knowledge or
experience
2. The expert has sufficient qualifications or experience to be considered
an expert in the field.

281
R v Bonython (1984) 38 SASR at 45.

113
(iii) Victoria
2.345 In contrast with South Australia, the Victoria Court of Criminal Appeal
rejected the general acceptance rule in R v Johnson.282 Here Brooking J stated
the applicable admissibility requirements in that jurisdiction:
―Provided the judge is satisfied that there is a field of expert
knowledge … it is no objection to the reception of the evidence of an
expert within that field that the views which he puts forward do not
command general acceptance by other experts in the field.‖ 283
(iv) Reform of the Australian Admissibility Requirements – The
Addition of a Reliability Test
2.346 The need to have some sort of reliability test on the types of
knowledge submitted to be the subject matter of expert evidence was recently
discussed by the Australian, the New South Wales, and the Victorian Law
Reform Commissions as part of their combined review of Uniform Evidence Law
in 2005. 284
2.347 The Commissions acknowledged the ongoing debate as to whether
an additional admissibility requirement relating to reliability of the evidence
should be introduced and summarised the different approaches that have been
adopted by the various Australian courts and jurisdictions.285
2.348 The Commissions referred to the Frye and Daubert tests and
acknowledged that it has not yet been resolved to what extent these should be
apply in the context of the Uniform Evidence Act. In the Issues paper the
Commission summarised the arguments in this regard:
―One view is that the ‗specialised knowledge‘ requirement of section
79 should be interpreted as imposing a standard of evidentiary
reliability, so that expert opinion evidence must be derived from a
reliable body of knowledge and experience. At the least, aspects of
the field of expertise test, including ‗general acceptance‘ and
Daubert-style reliability criteria may be able to be used to help
determine the probative value of evidence in the exercise of the
general discretion to exclude evidence. On the other hand, there may

282
(1994) 75 A Crim R 522.
283
(1994) 75 A Crim R 522 at 535.
284
ALRC Report 102; NSWLRC Report 112; VLRC Final Report; ―Uniform Evidence
Law‖ (December 2005).
285
ALRC, NSWLRC, VLRC ―Uniform Evidence Law – Report 102‖ (December 2005)
at Ch. 9.31-9.38.

114
 be concern about the restoration of a field of expertise rule, contrary
to legislative intent, through such interpretations of section 79.‖286
2.349 In the final report, the Commission expressed the view that it was
unnecessary to recommend an amendment to import any of the tests, such as
the Frye test, that have been considered necessary at common law, or to clarify
any aspects of the ‗specialised knowledge‘ requirement of s 79. Therefore, the
Commissions appeared satisfied to let determination of reliability to be decided
by the court on a case by case basis without any additional admissibility barriers
such as requiring the evidence to have been generally accepted (Frye) or
requiring the underlying methodology to be scientifically verifiable (Daubert).
(4) England & Wales
2.350 As in this jurisdiction, there is no formal or statutory reliability test for
admissibility of expert evidence. Expert evidence will be admitted once it is
relevant and the person seeking to give the evidence is sufficiently qualified to
be considered an expert.
2.351 Relevancy hinges on the ability of the evidence to be of assistance in
helping the court to reach a ‗fully informed decision,‘287 a question that will in
turn hinge on whether the issue is one which an ordinary person would require
instructions on the essentials of the necessary field of expertise to make this
fully informed decision.288
(a) Judicial Discretion and Flexible Case by Case Approach
2.352 Rather than create set categories of permitted evidence, or a formal
reliability test for admissibility, the English courts have taken a case by case
approach in assessing new scientific developments that come before the
courts.289
2.353 This was acknowledged by Gage LJ in R v Harris & Ors290 where he
stated:

286
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28
(2004) at para 6.24.
287
United Bank of Kuwait v Prudential Property Services (1995) Court of Appeal 27th
November 1995 at 4.
288
Per Butler-Sloss LJ Re M and R (Minors) [1996] 4 All ER at 239.
289 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 3-001.
290
[2005] EWCA Crim 1980 (21 July 2005).

115
 ―There is no single test which can provide a threshold for admissibility
in all cases. As Clarke demonstrates developments in scientific
thinking and techniques should not be kept from the Court. Further, in
our judgment, developments in scientific thinking should not be kept
from the Court, simply because they remain at the stage of a
hypothesis. Obviously, it is of the first importance that the true status
of the expert's evidence is frankly indicated to the court.‖ 291
2.354 In recent years, the English courts have had to decide on the
reliability of certain types of new and novel types of scientific and technical
evidence in a number of cases. However, the court has resisted the formulation
of an additional admissibility test in the form of a reliability test.
(b) Focus on the Qualifications of the Expert
2.355 In R v Robb,292 the prosecution sought to adduce an expert in
phonetics to give expert voice identification evidence after repeatedly listening
to recordings of the defendant‘s voice.
2.356 Bingham L.J. laid down a two-pronged test for admissibility of expert
evidence; first, whether study and experience will give a witness‘s opinion an
authority which the opinion of one not so qualified will lack, and if so, second,
whether the witness in question is peritus, that is skilled,293 and has adequate
knowledge. Bingham LJ continued:
―If these conditions are met the evidence of the witness is in law
admissible, although the weight to be attached to his opinion must of
course be assessed by the tribunal of fact.‖
2.357 The test propounded here by Bingham LJ arguably failed to take into
account the reliability of the evidence at all, focusing instead on expert giving
the evidence and their qualifications.
2.358 In R v Stockwell294 a facial mapping expert was called by the
prosecution to help prove that the defendants‘ disguised face appeared on

291
[2005] EWCA Crim 1980 (21 July 2005) at [270] In R v Clarke (1995) 2 Cr.App.R.
at 425, 429 the Court of Appeal stated: ―It is essential that our criminal justice
system should taken into account modern methods of crime detection…There are
no closed categories where such evidence may be placed before a jury. It would
be entirely wrong to deny the law of evidence the advantages to be gained from
new techniques and new advances in science.‖ (Cited in Hodgkinson & James
nd
Expert Evidence: Law and Practice (2 ed Sweet & Maxwell 2007) at 3-001).
292
(1991) 93 Cr.App.R. 161.
293
See also Lord Russell‘s comments in R v Silverlock [1894] 2 Q.B. 766 at 771.
294
(1993) 97 Cr App 260.

116
video films taken during a bank robbery and attempted robbery. On appeal, the
Court had to decide if this evidence was rightly admitted.
2.359 The English Court of Appeal observed that the trial judge had
described facial mapping evidence as ‗breaking new ground‘ went on to
approve his view that ―one should not set one‘s face against fresh
developments, provided that they have a proper foundation,‖ therefore allowing
the evidence to be admitted.
2.360 In relation to the test for admissibility, the court appeared to affirm the
approach taken in Robb:
―In such circumstances we can see no reason why expert evidence, if
it can provide the jury with information and assistance they would
otherwise lack, should not be given. In each case it must be for the
judge to decide whether the issue is one on which the jury could be
assisted by expert evidence, and whether the expert tendered has
the expertise to provide such evidence.‖ 295
(c) Move towards a Reliability Test?
2.361 The decision in R v Gilfoyle296 came closer to referring to reliability as
being requisite for admissibility. Here, the court refused to admit evidence of a
psychologist, submitted by the defence, to prove that the deceased was in such
a frame of mind prior to death that she was likely to commit suicide. The court
held that this ‗psychological autopsy‘ was a new developing brand of science
that had not yet been properly accepted within its field of expertise.
2.362 Rose L.J. observed that expert evidence ―based on a developing new
brand of science or medicine‖ would not be admissible ―until it is accepted by
the scientific community as being able to provide accurate and reliable
opinion.‖297 The court cited Strudwick & Merry298 and Frye299 in support of this
view.300

295
(1993) 97 Cr App 260 at 264.
296
(2001) 2 Cr. App. R. 5.
297
(2001) 2 Cr. App. R. 5 at 25.
298
(1994) 99 Cr. App. 326.
299
54 App. D. C. 46, 293 F. 1013.
300
(2001) 2 Cr. App. R. 5 at 25.

117
(d) Return to Traditional Qualifications-Based Approach
2.363 However, Gilfoyle was criticised in R v Dallagher301 where Robb was
again reasserted. In this case, the defendant successfully appealed his murder
conviction on the basis that fresh evidence had emerged in the form of
misgivings about the extent to which ear print evidence alone could safely be
used to identify a suspect.
2.364 The court here pointed out that the American approach in Frye302 had
now been overtaken by the test propounded in Daubert303 and cited Cross &
Tapper as encapsulating the current test in England:
―The better, and now more widely accepted, view is that so long as
the field is sufficiently well-established to pass the ordinary tests of
relevance and reliability, then no enhanced test of admissibility
should be applied, but the weight of the evidence should be
established by the same adversarial forensic techniques applicable
elsewhere.‖304
2.365 Although the court here mentioned the Daubert test, as well as US
Federal Court Rule 702 on which that decision was based, the Court of Appeal
failed to elaborate whether Daubert criteria should be applied in England to
ensure that the evidence had a sufficiently certain grounding, but seemed to
infer that the decision about the reliability and relevancy of the evidence should
continue to be decided by the judge on a case by case basis.
(e) Problems with Lack of Reliability Test
2.366 Although the court in Dallagher305 refused to find that the evidence
should have been ruled inadmissible on the basis of the Robb test, at the retrial
this evidence was not re-introduced by the prosecution and ultimately the
accused‘s conviction was quashed. This highlights the potential for inaccurate
evidence to lead to false convictions.
2.367 Another example of this is R v Cannings306 where the appellant
appealed her murder conviction on the basis of new advances in scientific

301
[2002] EWCA Crim 1903.
302
54 App. D. C. 46, 293 F. 1013.
303
509 U.S. 579; 113 S. Ct. 2786 [1993].
304 th
Tapper Cross and Tapper on Evidence (9 ed Butterworths 1999) at 523; cited in
R v Dallagher [2002] EWCA Crim 1903.
305
[2002] EWCA Crim 1903.
306
[2004] EWCA Crim 1.

118
understanding of sudden infant death syndrome which showed that multiple
cases of the syndrome in one family was not so rare as had been stated at trial
by an expert witness. Again, the appellant had spent time in prison before these
developments came to life, underlining the potential for untested evidence to
have onerous implications for accused persons.
(f) Confusion in Recent Case Law
2.368 More recently, in R v Luttrell307 the appellants sought to argue that a
requirement for admissibility includes proving that the evidence can be seen to
be reliable because the methods used can be sufficiently explained in cross
examination to test veracity or falsehood. This was rejected by the court, Rose
L.J. stating:
―We cannot accept that this is a requirement of admissibility. In
established fields of science, the court may take the view that expert
evidence would fall beyond the recognised limits of the field or that
methods are too unconventional to be regarded as subject to the
scientific discipline. But a skill or expertise can be recognised and
respected, and thus satisfy the conditions for admissible expert
evidence, although the discipline is not susceptible to this sort of
scientific discipline.‖308
2.369 In the course of this judgment Rose LJ acknowledged that two
conditions for admissibility have been recognised; first, that study or experience
will give a witness's opinion an authority which the opinion of one not so
qualified will lack; and secondly the witness must be so qualified to express the
opinion. Confusingly, Rose L.J. found the basis for this two-pronged
requirement not only in Robb but also in the South Australian decision R v
Bonython.309
2.370 However, in reality the decision in R v Bonython310 imposes more
stringent requirements than Robb as it contains the added requirement, not
present in Robb, that ―the subject matter of the opinion forms part of a body of
knowledge or experience which is sufficiently organised or recognised to be
accepted as a reliable body of knowledge or experience.‖311

307
[2004] EWCA Crim 1344.
308
[2004] EWCA Crim 1344 at 34.
309
[1984] 38 SASR.
310
[1984] 38 SASR.
311
Per King CJ R v Bonython [1984] 38 SASR at 46.

119
2.371 It is apparent from this that Rose L.J. considered reliability relevant to
deciding if the conditions for admissibility are met, but he was of the view that in
itself reliability goes to its weight. Furthermore, he did not seem to be of the
view that the reliability requirement went so far as the necessitate proof that the
methods used can be tested in cross examination, but merely requiring proof
that the evidence had been sufficiently organised or recognised as being so.
2.372 Similar confusion can be seen in the civil context. For example in
Barings plc v Cooper & Lybrand (No.1)312 Evan-Lombe LJ considered in some
detail what the appropriate test for admissibility of expert evidence should be for
civil proceedings and found that the test enunciated in R v
Bonython313constituted a good description of what was necessary to qualify. 314
2.373 Evans Lombe summarised the principles set out in the governing
authorities as requiring the evidence to be based on ―recognised expertise
governed by recognised standards and rules of conduct‖ which could clearly be
interpreted as requiring the evidence to
2.374 Therefore, despite repeated judicial emphasis that no additional
admissibility requirements exist other than those set out in Robb by Bingham
LJ, it can be argued that more recent English cases, both civil and criminal,
have applied a ‗general acceptance‘ test without acknowledging that this test
was founded in Frye, which decision was expressly rejected in R v Dallagher.315
(g) Conclusion
2.375 As can be seen, the flexible approach of the English court has made
it easier to embrace emerging areas of expertise, and, as can be seen, the
courts have shown a willingness to accept many originally unconventional types

312
[2001] EWHC Ch 17 (9 February 2001).
313
[1984] 38 SASR.
314
[2001] EWHC Ch 17 (9 February 2001) at [38].
315
[2002] EWCA Crim 1903 Hodgkinson and James cite other civil and criminal
cases where a ‗general acceptance‘ test appears to have been applied; See the
comments of; Mance J in “The Ardent” [1997] 2 Lloyds's Law Reports at547;
Evans-Lombe J in Barings Cooper v Lybrand (No. 1) [2001] EWHC Ch 17 (9th
February, 2001); See also R v Hodges [2003] EWCA Crim 290 and R v
O’Doherty [2003] 1 Cr.App.R. 77 (Hodgkinson & James Expert Evidence: Law
nd
and Practice (2 ed Sweet & Maxwell 2007) at 3-0016 fn. 34).

120
of identification evidence such as voice identification evidence, 316 facial mapping
evidence,317 ear print evidence,318 and genetic printing by DNA analysis.319
2.376 Furthermore, the English courts have repeatedly emphasised that the
appropriate test for admissibility is one that asks first, whether study or
experience will give the opinion of a witness an authority lacking in the opinion
of one not so qualified, and second, whether the person is sufficiently qualified.
2.377 However, the negative consequences that can result from allowing
misleading theories or ‗junk science‘ to advance a party‘s case are also evident
from the above mentioned cases.
2.378 As a result, the courts should be wary that any desire to embrace
new scientific developments does not lead to the introduction of unreliable and
inaccurate evidence capable of leading to unsafe convictions.
2.379 Hodgkinson and James are critical of the lack of judicial debate about
how best to deal with expert evidence and the lessons that can be learned from
other jurisdictions.320 They recommend that the English courts would do well to
consider applying the test in R v Bonython321or at the very least, introducing
some a sort of Daubert style judicial guidance to help the court assess whether
the evidence is reliable to go before the court.
(5) A Reliability Test for Ireland?
2.380 The question to be asked is whether imposing a Daubert-like test for
admissibility in Ireland would be workable or beneficial? Imwinkelried argues
that in the light of the proliferation in use of expert witnesses in all types of
litigation in Ireland, and the substantial threat to justice posed by flaws in expert
testimony, the Irish courts would do well to take heed of US developments in

316
R v Robb (1991) 93 Cr.App.R. 161.
317
R v Stockwell (1993) 97 Cr App 260.
318
R v Kempster [2003] EWCA Crim 3555.
319
R v Adams and Doheny (1997) 1 Crim App R 369; People (DPP) v Allen [2003] 4
I.R. 295.
320 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 3-006.
321
[1984] 38 SASR.

121
this area, and insist that any evidence adduced be empirically tested and
supported.322
2.381 This part of the chapter will now summarise the arguments that have
been made for and against the introduction of a reliability test.
(a) Disadvantages – Reasons to Retain the Status Quo
It has been argued that there would be a certain degree of circularity in
asking a court to decide on the reliability of evidence that is essentially
being introduced due to the fact that it outside of the range of
knowledge of the court.323
It has also been suggested that the reason for the lack of judicial
scrutiny on the need for a reliability requirement can be explained by
the fact that our system is adversarial in nature and therefore as a
result, the process itself tends to weed out unreliable testimony through
cross-examination from the other party thus negating the need for such
a requirement at admissibility stage.324
It has often been contended then that reliability is more appropriately
an issue to be taken into account when assessing the weight of the
evidence rather than admissibility.325 In the context of jury trials
assessing the admissibility of evidence after it has been heard could
prove difficult for lay jurors.
Heffernan points out that there are a number of differences in the Irish
and American legal systems that might have a bearing on this issue.326
She notes in particular that juries play a much bigger role in American
litigation than in this jurisdiction. The risk of juries being unduly swayed
by effusive and ostentatious expert witnesses has long since been
recognised as being far higher than the risk of influencing a judge well
versed in such routines. Similarly, there are a number of procedural
differences between the Irish and American systems. For example the

322
Imwinkelried, ―‘Junk Science‘ in the Courtroom: Will the Changes in the American
Law of Expert Testimony Influence the Irish Courts?‖ (2004) 26 Dublin University
Law Journal 83.
323 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 1-020.
324
Heffernan ―Gauging the Reliability of Expert Witnesses‖ (2006) 6 JSIJ 140 at 147.
325
As per Rose J in R v Luttrell [2004] EWCA Crim 1344; Davie v Edinburgh
Magistrates (1953) SLT 54.
326
Heffernan ―Gauging the Reliability of Expert Witnesses‖ (2006) 6 JSIJ 140 at 168.

122
 summary judgment mechanism in the US aims to resolve proceedings
at a pre-trial stage, or at least, reduce the contentious issues at trial,
and it is here that admissibility issues are often resolved. Ireland has
no equivalent procedure, which means that the Irish system might be
far less procedurally conducive to applying and enforcing a Daubert
based test, if introduced.
It can also be argued that a ‗general acceptance‘ test, or a ‗reputable
body of opinion‘ test of reliability, would in reality be too strict and too
conservative, and would cause much useful and reliable evidence to be
excluded. It could result in courts lagging behind advances in science
and other learning.327
Finally, it can be argued that the introduction of a reliability test is
unnecessary and superfluous. Despite high profile examples of
miscarriages of justice caused by unreliable or inaccurate expert
testimony, such cases are rare and the large majority of expert
testimony that comes before the court will relate to well established and
undoubtedly reliable principles of expertise. Furthermore, as pointed
out by Hodgkinson and James:
―….most of the well publicised miscarriages of justice arise not from
the use of novel but flawed science but from the incorrect application
of well established scientific principles and techniques 328 or from a
misunderstanding of sound science329 or a failure of the prosecution
to disclose material that could undermine its scientific case 330 and/or,
occasionally, deliberate misrepresentations of the effect of forensic
work.331‖332

327
ALRC Report 102; NSWLRC Report 112; VLRC Final Report; ―Uniform Evidence
Law‖ (December 2005) at 9.38.
328
See, for example the prosecutor‘s fallacy cases involving DNA such as R v
Doheny & Adams [1997] 1 Cr.App.R. 369, CA and Pringle v The Queen [2003]
UKPC 9; The Birmingham 6 case R v McIlkenney (1991) 93 Cr.App.R. 287.
329
See, for example, the one in 73,000,000 statistic in R v Clarke (Sally) [2003]
EWCA Crim 1020.
330
R v Clarke (Sally) [2003] EWCA Crim 1020 (microbiology report); R v Ward
(Judith) [1993] 1 WLR 619; R v Maguire (1992) 94 Cr.App.R. 133, CA and see
also, Sir John May‘s Report into the cases of the Maguire 7.
331
R v Ward (Judith) ibid.; R v Maguire ibid.; and see also, Sir John May‘s Report
into the cases of the Maguire 7.

123
(b) Advantages – Reasons to Introduce a Reliability Test
It is equally arguable that Ireland would benefit from introducing a
reliability threshold for the admissibility of expert evidence, similar to
that introduced in other jurisdictions such as the US.
For instance, as discussed below, a reliability requirement would go a
long way towards eliminating the presence of junk science from being
submitted as evidence.333
Hodgkinson & James argue that the failure to encompass a reliability
requirement could have unfortunate consequences for example where
‗pseudo-science‘ or new scientific developments are being proffered as
evidence as there is no onus on the expert to show that there is a link
between the issues in the case and the reliability of the expert
knowledge.334
It has already been noted that the degree and range of subject matter
of specialisation has escalated over the years with new and more
specialised forms of ‗expertise‘ appearing with more and more
regularity. It can be difficult to expect a court unacquainted with the
complex evidence with which they are presented, to evaluate the
merits of this evidence or its reliability.
Requiring juries to evaluate the appropriate weight to accord to new
and untested scientific advances has the potential to lead to
miscarriages of justice, and that the better approach would be to
prohibit expert evidence in avant-garde areas of science or technology
from being admitted until the area has been sufficiently accepted or
recognised as a reliable body of knowledge. 335
2.382 Based on the foregoing, the Commission has provisionally come to
the conclusion that the arguments in favour of a reliability test are greater and

332 nd
Hodgkinson and James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 3-006.
333
The term ‗junk science‘ was first coined in Huber Galileo’s Revenge: Junk
Science in the Courtroom (Basic Books 1991). The term ‗junk science,‘ refers to
the abuse of science and scientific terminology in the courtroom setting by
importing irrelevant or accurate evidence to advance a party‘s arguments.
334 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 1-021.
335 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 1-021 – 1-022.

124
that it should be introduced as an additional requirement for admissibility of all
expert testimony.
2.383 The Commission provisionally recommends that a reliability test
should be introduced as an additional requirement for admissibility of all expert
testimony.
(c) Appropriate Form of Reliability Test
2.384 The introduction of a reliability test has been considered to have
considerable merits. However, the question remains as to what form such a test
should take and how should it be introduced into Irish law.
(i) Statutory Provision
2.385 One option that could be taken is the formulation of an express
formal and binding test for admissibility the elements of which would have to be
satisfied by all parties seeking to adduce expert evidence.
2.386 However, it is clear that there may be difficulties with creating such a
test in a stand-alone provision for reliability of expert evidence, and it would be
more appropriate to incorporate a reliability test provision into a larger
instrument on expert evidence in general containing all applicable rules relating
to expert evidence, such as part of an Evidence Code or Act.
2.387 Furthermore, the approach taken in other jurisdictions, even those
where an Act of Code of Evidence is provided for, generally appears to be that
the statutory provisions contain general provisions giving the judge in an
individual case the discretion to determine whether or not to admit the evidence,
and the appropriate test to be applied by the judge in coming to this decision
tends to be formulated in the case law.
(ii) Judicial Guidelines
2.388 A more appropriate approach, it is submitted, is to create a judicial
guidance note on admissibility which outlines the appropriate test that should be
applied by the trial judge when confronted with novel or other areas of expertise
the reliability of which is not clear.
2.389 This could be applied as a non-exhaustive and non-binding guide
that can be adverted to by the trial judge in assessing whether or not to admit
expert evidence.
2.390 The Commission provisionally recommends the introduction of a
judicial guidance note outlining the factors that can be taken into account by the
trial judge when assessing whether the expert evidence in question meets the
requisite reliability threshold.

125
(d) Requisite Contents and Elements of a Test
2.391 Once the appropriate form has been decided on, the appropriate
wording and elements of the test to be introduced must be considered. From
the above discussion, two discernible approaches appear to have been taken in
different jurisdictions.
(i) General Acceptance Test
2.392 The approach originally taken in the US in Frye, which also
constitutes the test applied in Bonython,336 is to require the evidence to have
reached a set level of acceptance within the field of expertise to which it relates
which can then be used to vouch for its validity.
2.393 This requires the party wishing to adduce expert evidence to
demonstrate that the principle has gained consensus, acceptance and
recognition among a considerable body of experts in the field.
(I) Advantages
This test is advantageous as it is clear that the body best placed to
assess the merits and reliability of the evidence is the expert
community from which the principle stems. If the evidence has
achieved acceptance within the expert field itself, its reliability is greatly
bolstered. This helps to ensure that the trial judge will not struggle with
the task of understanding and assessing the reliability of evidence
entirely outside of the scope of his or her knowledge.
This argument is strengthened by the fact that a similar approach is
taken in professional negligence cases where the question of
negligence is based on whether or not the action taken is one which no
reasonable professional in the area would have taken.
It can be argued that the general acceptance test does not impose too
onerous a criterion where the expertise is sufficiently sound in terms of
reliability. Such evidence is likely to have achieved general acceptance
without difficulty. Evidence that has not been recognised by a large
body of experts within the field is more likely to be considered
unreliable even where other factors are used to determine this.
The general acceptance requirement would also ensure that there
would be a considerable body of experts who recognise the theory and
would thus form a considerable body of experts available to give

336
However, it should be noted that the Bonython test also requires the evidence to
be ―sufficiently organised or recognised to be accepted as reliable‖ which requires
examining the substantive nature of the evidence as well as assessing the degree
of support it has received from experts in the field.

126
 evidence on the issue. It could thus promote consistency in decision
making.337
(II) Disadvantages
It can be argued however that permitting the evidence to be adduced
solely on the basis of its acceptance by the expert community from
which it stems removes the decision about its reliability away from the
court and into the hands of the expert community, which may be seen
as a usurpation of the role of the judge and jury.
Furthermore, the general acceptance test, which requires acceptance
amongst a considerable body of experts, imposes a much higher
burden on the expert than does the test for professional negligence,
which assesses negligence on the basis of action that no reasonable
professional would have taken.
It can be argued that satisfying the general acceptance standard will
not automatically ensure the reliability of evidence. Peer review is a
clear example that a theory has achieved recognition and acceptance
within a particular field of expertise, yet assessment in terms of peer
review has been repeatedly criticised. 338 McMullan gives the example
of the Sokal article incident where an article was published in an
American peer reviewed article and its author later admitted the theory
discussed in the article to be a hoax.339 Its acceptance in the journal
highlights the potential inadequacy of peer reviewing as a filtering
mechanism for unreliable areas of expertise.
The test can also be criticised in that it precludes certain evidence from
the outset, namely evidence that is so novel and new that it has not yet
been assessed by the expert community to which it relates, without
assessing the foundational basis of the evidence at all.

337 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 3-006.
338
Koukoutchos ―Solomon Meets Galileo (And Isn‘t Quite Sure What to Do With
Him)‖ (1994) 15 Cardozo Law Review 2237; McMullen ―Expert Witnesses: Who
Plays the Saxophones?‖ (1999) Journal of Judicial Administration.
339
The article was entitled; ―Transgressing the boundaries: Towards a transformative
hernemuetics of quantum gravity‖ in the American Culture Studies Journal Social
Text. McMullan explains that the authors aim appears to have been to poke fun at
certain learned authors (McMullen ―Expert Witnesses: Who Plays the
Saxophones?‖ (1999) Journal of Judicial Administration.

127
 It may occur that a case arises where the key point of expertise is so
novel and technical that it has not been considered before. This fact
should not be used to exclude such evidence when in reality it could
have an important bearing on the facts in issue.
There may also be difficulties in determining the appropriate level of
‗general acceptance‘ and what constitutes a considerable body of
expert recognition for the purpose of the test.
It has also been argued that this test tends to prohibit the admission of
new research undertaken specifically for the purposes of litigation
which can lead to novel but reliable evidence being excluded. 340
An automatic prohibition on evidence not meeting the appropriate
standards in terms of reputation, as opposed to substance, is not
desirable.
2.394 The Commission provisionally recommends that the general
acceptance test, by focusing on the number of experts in the area that
recognise the theory, rather than assessing the subjective merits of the theory
itself, imposes too onerous a burden in terms of its provenance as opposed to
its content to be considered an appropriate test to determine the reliability of the
evidence.
(ii) Empirical Validation
2.395 An alternative test which could be imposed is one similar to that
propounded in Daubert, namely a test that focuses on the evidence itself in
terms of its underlying methodologies and results to examine its reliability. Such
a test should take the form of a non-exhaustive range of factors that would be
taken into account by the court when assessing the evidence, general
acceptance being just one of these factors.
2.396 The decision in Daubert provided useful guidance as it gave
examples of those factors that can be used to determine reliability. Based on
this decision, and on other guidelines 341 that have been suggested in relation to
this, the principal factors that should form the basis of any reliability test based
on empirical validation include;

340 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 3-006.
341
See for example Kenny ―The Expert in Court‖ (1983) 99 LQR 197 at 205-206;
Moles ―The Role and Function of the Expert Witness‖ Available at:
http://netk.net.au/Reports/ExpertWitness.asp; Imwinkelried ―‘Junk Science‘ in the
Courtroom: Will the Changes in the American Law of Expert Testimony Influence
the Irish Courts?‖ (2004) 26 Dublin University Law Journal 83.

128
 1. Are the principles behind the theory consistent in that its proponents are
in agreement about its constituent elements which would enable it to be
empirically testable and falsifiable?
2. Have the principles and procedures behind the theory been empirically
tested in that it can be demonstrated by evidence of actual experiences
rather than hypothetical situation?
3. Are the conclusions reached by the expert backed up by sufficient
supporting evidence and logical based on the principles underlining the
theory?
4. Has the theory a known or potential rate of error?
5. Has the theory been subjected to peer review and publication?
6. Is the theory methodical in the sense that there is agreement about the
correct standards of procedures for using the methodology which
enable it to be duplicated?
7. Has the theory been generally accepted?
2.397 The trial judge should proceed on the basis that the evidence is
inherently unreliable and then assess the merits of the evidence in terms of the
above factors.
2.398 The trial judge should also have discretion in terms of what factors
should be applied to particular evidence as it is clear that not all evidence,
particularly non scientific evidence, will be conducive to testing by the full list of
criteria above and thus the above factors should be flexible in their application.
(I) Advantages
The introduction of such a reform would be easily facilitated in practice
as the discretionary rather than binding nature will give the trial judge
considerable leeway and flexibility in terms of deciding on the best way
of assessing the merits of the evidence. This will ensure that the key
role of the trial judge in determining the admissibility of evidence is
firmly consolidated.
The test also provides a useful source of guidance for the trial judge in
relation to the key factors that indicate reliability when assessing avant-
garde theories, the benefit of which is immeasurable considering that
such novel theories will undoubtedly be outside the scope knowledge
of the trial judge.
Furthermore, it is often not the evidence itself that proves to be suspect
or unreliable, but the methods and processes used to reach the result

129
 which prove to be negligently followed or to be fundamentally flawed.342
Requiring the evidence to be empirically validated would prevent the
risks of contamination or errors in evidence being presented to the
court as it would encompass both the substantive nature of the
evidence as well as the procedures and structures involved in its use.
(II) Disadvantages
It is clear that given the vast and unlimited range of subject matters on
which expert testimony can be given, not all areas of expertise will be
conducive to empirical validation, principally those that do not have a
scientific or technical basis.343 If all evidence was required to satisfy a
definitive list of factors, this would lead to the undesirable result that
certain evidence would be excluded due to a lack of, for example,
sufficient peer review.
However, this problem is easily overcome by adopting the approach
taken in Kumho Tyre Co v Carmichael344 and recognising that whilst
not all validation criteria can be used to validate non-scientific
testimony some still remain relevant, so the test should be flexible in its
application to ensure that the court has a certain leeway regarding
what factors are used to assess the reliability of particular evidence
taking into account whether it relates to scientific or non scientific area
of expertise.
2.399 Based on the foregoing, the Commission believes there are few
arguments that can be made against the introduction of a reliability test based
on empirical validation. The Commission therefore provisionally recommends
the introduction of a judicial guidance note outlining a non-exhaustive and non-
binding list of factors, based on empirical validation, which can be used to help
the court assess the reliability of tendered expert evidence.

342
An example of this is R v Pitchfork (January 23 1988) the first publicised use of
DNA evidence in England. Although the reliability of DNA evidence had been
repeatedly proven, the accused here initially escaped charges as he had
substituted another person‘s blood sample for testing in place of his own. (See
Law Reform Commission Consultation Paper on The Establishment of a DNA
Database LRC CP 29-2004 at 2.04).
343
Imwinkelried ―The Next Step after Daubert: Developing A Similarly
Epistemological Approach to Ensuring The Reliability of Non-Scientific Expert
Testimony‖ (1994) 15 Cardozo LR 2271.
344
526 U.S. 137 (1999).

130
2.400 The Commission provisionally recommends the introduction of a
judicial guidance note outlining a non-exhaustive and non-binding list of factors,
based on empirical validation, which can be used to help the court assess the
reliability of tendered expert evidence.
(e) Effects of a Finding of Unreliability
2.401 The last issue to be considered is the consequences of a judicial
finding that the evidence has not met the required standard of reliability.
Evidence that does not satisfy any of the factors on the checklist should clearly
be automatically excluded from the outset.
2.402 However, in some instances the trial judge may be uncertain about
the validity of the evidence. It could for example have a well researched logical
seemingly sound basis, but due to its relative infancy, it may be lacking in
general acceptance and peer review. In such cases the court may consider it
appropriate to admit the evidence, based on its probative value, whilst giving a
warning to the jury about its potential unreliability or limitations.
2.403 This issue was considered in R v Luttrell and Ors345 where the court
held that the reliability of lip reading evidence is a matter relevant to weight
rather than admissibility and thus that the evidence was rightly admitted.
2.404 However, Rose LJ went on to discuss the range of circumstances
under which a judicial warning is appropriate. Although his comments were
limited to the context of lip-reading evidence, they provide useful guidance for
the approach to be taken in similar situations involving other types of evidence:
―We have no doubt that lip reading evidence requires a warning from
the judge as to its limitations and the concomitant risk of error, not
least because it will usually be introduced through an expert who may
not be completely accurate: as we have indicated above, the material
before this court indicates that lip reading evidence will, on occasion,
fall significantly short of perfection. That imperfection does not render
the material inadmissible, for the reasons we have already explained,
but it does necessitate a careful and detailed direction. As with any
"special warning", its precise terms will be fact-dependent, but in
most, if not all cases, the judge should spell out to the jury the risk of
mistakes as to the words that the lip reader believes were spoken;
the reasons why the witness may be mistaken; and the way in which
a convincing, authoritative and truthful witness may yet be a mistaken
witness. Furthermore, the judge should deal with the particular
strengths and weaknesses of the material in the instant case,
carefully setting out the evidence, together with the criticisms that can

345
[2004] EWCA Crim 1344 (28 May 2004).

131
 properly be made of it because of other evidence. The jury should be
reminded that the quality of the evidence will be affected by such
matters as the lighting at the scene, the angle of the view in relation
to those speaking, the distances involved, whether anything
interfered with the observation, familiarity on the part of the lip-reader
with the language spoken, the extent of the use of single syllable
words, any awareness on the part of the expert witness of the context
of the speech and whether the probative value of the evidence
depends on isolated words or phrases or the general impact of long
passages of conversation. However, as we have indicated, the
precise terms of the direction will depend on the facts of the case,
and the instruction to the jury in this, as in many other areas, should
never be given mechanistically.‖
2.405 The Commission considers that this approach provides a useful
insight in the manner in which this issue of discretion should be approached.
2.406 The Commission provisionally recommends that the court should
have the discretion to determine whether or not evidence that fails to satisfy the
reliability test should be excluded. The Commission also provisionally
recommends that where the extent of the reliability is uncertain, or where the
trial judge feels it appropriate or necessary, he or she can argue that the
evidence be admitted subject to a warning to the jury about its uncertain
reliability.
(6) Conclusion
2.407 As well as requiring the evidence to be relevant, reliable and within
the scope of matters on which expert evidence is permitted, a party is also
required to demonstrate that the person seeking to give the evidence is
sufficiently qualified to be considered an expert witness. The way in which the
courts assess the status of an expert is considered in the next chapter.

132
3
CHAPTER 3 THE QUALIFIED & IMPARTIAL EXPERT: DUTIES
AND FUNCTIONS OF EXPERT WITNESSES

A Introduction
3.01 In Chapter 2 the Commission discussed the circumstances under
which the court will allow a party to adduce expert evidence. In this chapter the
Commission considers the factors that determine who is entitled to give expert
evidence. Part B discusses the factors the court will take into account to
determine whether an individual adduced by a party to act as an expert witness
has sufficient qualifications and experience to enable him to be considered an
expert for the purposes of giving expert testimony.
3.02 Part C examines the principal duties and functions of an expert
witness and also discusses some of the problems that have been identified in
the context of the experts themselves.

B What is an ‘Expert Witness’?

3.03 As outlined in Chapter 2, the two principal requirements that a party
must satisfy in order to adduce expert evidence are first, that expert evidence is
necessary in the circumstances and second, that the person purporting to give
such evidence is sufficiently skilled in the subject matter in question. This
chapter examines the second of these two requirements.
3.04 However, once it has been held that the subject matter is one on
which expert testimony can be given, it does not necessarily follow that the
individual put forward by the party to give such evidence will be an expert in the
particular subject matter. Equally, although the person may be considered an
expert in the particular field of study, they may in reality have little or no
expertise on the specific issue which is sought to be demonstrated.
(1) Definition
3.05 Because expert evidence can be given on an unlimited range of
subject matters, the law has struggled to set out a concrete definition of an
expert for the purposes of court proceedings. Different definitions have been
suggested in various jurisdictions, all of which are concerned with a discernible

133
field of expertise, and sufficient knowledge or experience in this field, which
enable the person to give evidence in court.
(a) Ireland
3.06 In Ireland, to date no set definition of an expert, statutory or
otherwise, has been adopted, and it can be seen that the courts have adopted a
very broad and flexible approach to what constitutes an ‗expert‘ for the
purposes of giving expert evidence. The courts have continuously attempted to
explain the parameters of what constitutes an expert witness, but have resisted
setting out a formal definition.
(i) Judicial Commentary on Definition of an Expert
3.07 Despite resisting a formal definition, over the centuries there have
been many judicial pronunciations about the exact role and function of the
expert witness in the common law adversarial context in this jurisdiction.
th
3.08 In a 19 century decision, McFadden v Murdock,1 Pigot CB
confirmed the general rule permitting expert opinion evidence to be given where
this will assist to explain matters helpful to the jury. In the course of the
judgment he referred to expert witnesses in this context as being:
―…persons of peculiar skills and knowledge on the particular subject,
the testimony of such, as to their opinion and judgment upon the
facts is admissible evidence to enable the jury to come to a correct
conclusion.‖
3.09 The broad definition given to what constitutes an ‗expert‘ was also
alluded to by Pigot CB where he explained that an expert cannot be confined to
someone proficient in a set range of subject matters:
―The subjects to which this kind of evidence is applicable are not
confined to classes and specified professions. It is applicable
wherever peculiar skill and judgment, applied to a particular subject,
are required to explain results, or trace them to their causes.‖ 2
3.10 Almost a century later, in AG (Ruddy) v Kenny,3 Davitt J expressly
mentioned some of the subject matters which the court will consider to be within
the realm of an expert:

1
(1867) Exchequer IR ICL 211.
2
(1867) Exchequer IR ICL 211 at 217.
3
(1960) 94 I. L.T.R. 185.

134
 ―…matters which require special study and experience in order that a
just opinion may be formed, as, for instance, matters of art, science,
medicine, engineering and so forth.‖4
3.11 However, nowadays the range of subject matters on which expert
evidence can be given has expanded beyond the boundaries of traditional
areas of expertise and an expert can now be found on a subject matter
specifically generated for litigation, for example accident support services.
3.12 More recently, in The People (DPP) v Fox,5 in the course of a finding
that a Garda Commissioner was entitled to be considered an expert in drug
trafficking, the court defined what it would consider to be an expert:
―…a person who is well qualified to express a credible opinion or
belief on the subject so much so that the Court is entitled to regard
such opinion and belief as admissible evidence for the purpose of
supplying the Court with information which is outside of the range
and knowledge of the Court‖
3.13 In Galvin v Murray,6 Murphy J gave careful consideration to this
question. He considered that, in order to give an expert opinion, the witness
must be, in the opinion of the judge, qualified in the subject calling for his
specialist knowledge. Thus:
―An expert may be defined as a person whose qualifications or
expertise give an added authority to opinions or statements given or
made by him within his area of expertise.‖ 7
(ii) Legislative Guidance on Definition of an Expert
3.14 As mentioned above, there is no legislative definition of ‗expert‘ for
the purpose of giving expert testimony. However, some guidance can be found
in the Rules of the Superior Courts (No. 6) (Disclosure of Reports and
Statements) 1998 (S.I. No. 391 of 1998). The 1998 Rules state that they apply
to expert reports including:
―…report or reports or statement from accountants, actuaries,
architects, dentists, doctors, engineers, occupational therapists,
psychologists, psychiatrists, scientists, or any other expert
whatsoever intended to be called to give evidence in relation to an
issue in an action.‖

4
(1960) 94 I. L.T.R. 185 at 186.
5
Unreported, Special Criminal Court, January 23, 2002.
6
[2000] IESC 78.
7
[2000] IESC 78 at 85.

135
3.15 This highlights that not only may the categories of professionals listed
be considered as experts (if they have the appropriate qualifications or
experience) the court may also accept ―any other expert whatsoever‖ as an
expert witness. This emphasises that the categories are not closed.
(b) Australia
3.16 In a recent Australian survey of judicial attitudes to expert witnesses,
Freckleton described expert witnesses as ―suppliers of informed opinions on
matter beyond the ken of lay finders of fact…Their role is to shed light on areas
that would otherwise not be adequately appreciated or understood.‖ 8
3.17 The legislatures in the various Australian jurisdictions have all
adopted their own definition of an ‗expert‘ and an ‗expert witness. These
definitions differ but most are just minor variations of the one main definition; an
expert witness is someone who is competent and qualified, based on their
specialist knowledge, to give an opinion to the court.
(i) The Federal Court
3.18 The Federal Court Rules of the Federal Court of Australia define an
expert witness as; ―a person who is called, or is to be called, by a party to give
opinion evidence, based on the person‘s specialised knowledge, based on the
person‘s training, study or experience.‖ 9
(ii) The Family Court
3.19 The Family Court definition of an expert and an expert witness set
out in the Family Law Rules 2004 (which were enacted as a result of the
recommendations of a 1999 report by the Australian Law Reform Commission
on Case Management in Family Law Cases) is interesting as it includes
‗independence‘ as a characteristic of an expert. An expert is defined as; ―an
independent person who has relevant specialised knowledge, based on the
person‘s training, study or experience.‖ An expert witness is defined as ―an
expert who has been instructed to give or prepare independent evidence for the
purpose of a case.‖10
(iii) New South Wales
3.20 The Uniform Civil Procedure Rules adopted in New South Wales in
2005 also set out a definition of an expert for the purpose of giving expert

8
Freckelton, Reddy & Selby ―Australian Judicial Perspectives on Expert Evidence;
an Empirical Study‖ (Australian Institute of Judicial Administration, 1999) at 15.
9
Federal Court Rules - Statutory Rules 1979 No. 140 as amended made under the
Federal Court of Australia Act 1976 Order 34A r 2.
10
Family Law Rules 2004 (Cth) r 15.43.

136
testimony.11 An expert is defined as ―person who has such knowledge or
experience of, or in connection with, that issue, or issues of the character of that
issue, that his or her opinion on that issue would be admissible in evidence.‖
3.21 An expert witness is defined separately as ―an expert engaged or
appointed for the purpose of: (a) providing an expert‘s report for use as
evidence in proceedings or proposed proceedings, or (b) giving opinion
evidence in proceedings or proposed proceedings.‖12
(iv) Queensland
3.22 In Queensland, the Uniform Civil Procedure Rules (Qld) adopted in
1999 define an expert as; ―a person who would, if called as a witness at the trial
of a proceeding, be qualified to give opinion evidence as an expert witness in
relation to an issue arising in the proceeding.‖13
(v) Australian Capital Territory
3.23 In the Australian Capital Territory the newly introduced Court
Procedure Rules 2006 sets out the rules governing the use of expert witnesses
in court. Rule 1201 sets out what is meant by an expert and an expert witness
for the purposes of the proceedings under these rules.
3.24 An expert is defined extensively as ―a person who (a) has specialised
knowledge about matters relevant to an issue arising in the proceeding based
on the person‘s training, study or experience; and (b) would, if called as a
witness at the trial of the proceeding, be qualified to give opinion evidence as an
expert witness in relation to the issue.‖ 14
3.25 An expert witness is defined under Rule 1201 as ―an expert
appointed or engaged to do either or both of the following: (a) to provide a
report about the expert‘s opinion for use as evidence in the proceeding; (b) to
give opinion evidence in the proceeding.‖ 15
(c) England
(i) Judicial Commentary on Definition of an Expert
3.26 As in Ireland, the English courts have resisted a formal definition of
what constitutes an expert for the purposes of giving expert evidence and

11
See Uniform Civil Procedure Rules 2005 (NSW).
12
Uniform Civil Procedure Rules 2005 (NSW) r. 35.18.
13
Uniform Civil Procedure Rules 1999 (Qld) r 425.
14
Court Procedure Rules 2006 (ACT) r. 1201.
15
Court Procedure Rules 2006 (ACT) r. 1201.

137
deciding on the competency of an individual to be considered an expert remains
at the discretion of the trial judge.
3.27 The main considerations that will be taken into account are the
possession of knowledge of the expertise in question, and an ability to use that
knowledge as a result of training or education in that specialism. During
argument in R v Silverlock16 Vaughan-Williams J stated that;
―No one should be allowed to give evidence as an expert unless his
profession or course of study gives him more opportunity of judging
than other people.‖ 17
(ii) Legislative Guidance on Definition of an Expert
3.28 Also similarly to Ireland, in England there is no legislative definition of
what constitutes an expert. Existing legislation that does make reference to
experts does so in the most general terms, reflecting the broad indefinable
nature of the concept of an expert for the purpose of court proceedings.
3.29 In civil proceedings, although most of the rules governing expert
evidence have been put on a statutory footing since the introduction of the Civil
Procedure Rules, these rules also refrain from giving a formal definition of an
expert witness. CPR r. 35.2 states that an expert is ―an expert who has been
instructed to give or prepare evidence for the purpose of court proceedings.‖ 18
3.30 Likewise in criminal proceedings, Rule 33.1 states that any reference
to an expert for the purpose of the rules ―is a reference to a person who is
required to give or prepare expert evidence for the purpose of criminal
proceedings, including evidence required to determine fitness to plead or for the
purpose of sentencing.‖19
(2) Necessary Experience and Qualifications
(a) Broad Definition Given
3.31 The broad definition given in this jurisdiction to what amounts to an
expert indicate that it is not compulsory for a person to hold formal qualifications
to be an expert, and expert knowledge acquired through experience,
independent study or a hobby will be considered by the courts as equally valid
as academic qualifications once this is sufficient. 20

16
[1894] 2 QB 766.
17
[1894] 2 QB 766.
18
Civil Procedure Rule 35.2.
19
Criminal Procedure Rule 33.1.
20
AG ( Ruddy) v Kenny (1960) 94 I.L.T.R. 185 at 190.

138
3.32 For example in The People (DPP) v Gilligan21 the court considered
that a Garda commissioner was suitably qualified to be considered an expert in
the practice of drug trafficking as he was;
―…a person with considerable experience in the field…and, in light of
that experience, was in the view of the court a person with a wealth
of knowledge on all aspects of [that field.]
3.33 In The People (DPP) v Fox22 it was explained that the value of expert
evidence will depend on ―the authority, experience and qualifications of the
expert‖ which would appear to place emphasis on the necessity for some sort of
express manifestation of expertise, however, it is not expressly stated that
formal qualifications are required.
(b) No Formal Qualification Needed
3.34 It has long been recognised that the court is ultimately concerned
with the extent of the expertise, rather than the way in which this expertise was
acquired. In R v Silverlock23 a solicitor was allowed give his opinion on a
handwriting comparison because, although he had no formal qualification, he
had studied handwriting as a hobby for 10 years, and this, in the view of the trial
judge, sufficiently qualified him to be an expert in the area. On appeal, Lord
Russell stated:
―It is true that the witness who is called upon to give evidence
founded on a comparison of handwritings must be peritus; he must
be skilled in doing so; but we cannot say that he must have become
peritus in the way of his business or in any definite way. The question
is, is he peritus? Is he skilled? Has he adequate knowledge?‖ 24
3.35 Therefore whether the expertise stems entirely from practical
experience or from formal study or a mixture of the two is irrelevant once the
person can prove that they have acquired knowledge that gives them an
expertise not possessed by the ordinary person.
3.36 Similarly, whether a person is an expert or not will also largely
depend on whether or not the particular area on which they are an authority is

21
Unreported 15 March 2001.
22
Unreported, Special Criminal Court, January 23, 2002.
23
[1894] 2 QB 766.
24
[1894] 2 QB 766.

139
one which is considered by the courts to be outside of the scope of the finder of
fact.25 As Smith J stated in Carter v Boehm:26
―…the opinion of witnesses possessing peculiar skill is admissible
whenever the subject-matter of inquiry is such that inexperienced
persons are unlikely to prove capable of forming a correct judgment
upon it without such assistance, in other words, when it so far
partakes of the nature of a science as to require a course of previous
habit, or study, in order to the attainment of a knowledge of it.‖
(c) Ad-Hoc Experts
3.37 However, expertise acquired through practical experience qualifies
an individual to express an opinion only on the specific issue which is sought to
be proved, and proving this is more difficult than where formal qualifications are
available to overtly demonstrate the area of expertise. In Clark v Ryan,27 the
leading Australian case on this issue, the plaintiff sought to introduce an expert
witness to testify about the reasons for the defendant‘s articulated vehicle ‗jack-
knifing‘ across the road.
3.38 The expert did not have any formal qualifications on this subject
matter but he argued he was qualified to give expert evidence as he had 50
years experience of engineering problems in Australia, and over a great number
of years had been engaged in investigating road accidents for insurance
companies and others and in assessing losses.28
3.39 The majority of the court held the evidence to be inadmissible. Dixon
J reasoned that the knowledge gained by the witness through his experience
did not qualify him to express an expert opinion on the behaviour of articulated
vehicles under certain circumstances. He stated:
―If it had been desired to prove how in fact semi-trailers of the kind
driven by the defendant Clark do in practice behave, perhaps a
witness or witnesses experienced in their actual use might have
given admissible evidence, not of opinion, but of the fact. But Mr.
Foster Joy did not possess that experience. If it had been desired to
give technical evidence of the physics involved and of any relevant
opinions deduced therefrom, possibly that might have been done by

25
See chapter two for a discussion on the range of subject areas which the courts
consider to be a field of specialised knowledge and outside the range of
knowledge of the finder of fact.
26
(1766) 3 Burr 1905.
27
(1960) 103 C.L.R. 486.
28
(1960) 103 C.L.R. 486 at 491.

140
 a qualified witness although one may doubt how intelligible to the jury
the evidence would have been and what useful purpose it would
have served. But it certainly does not appear that Mr. Foster Joy was
qualified to give such testimony and in fact he did not essay to do so.
What in truth occurred was to use the witness to argue the plaintiff's
case and present it more vividly and cogently before the jury.‖29
3.40 The decision in Clark highlights the fact that in order for a person to
be considered an expert witness, the opinion expressed must form a direct part
of the subject matter of the special knowledge gained by the person‘s
qualifications or experience.
3.41 Furthermore, a person who has only practical experience must
abstain from attempting to give a scientific or technical explanation and is
confined to giving an opinion on the extent of their experience. Therefore in the
Australian decision R v Bjordal30 the court held the evidence of a police officer
on the likely speed of the defendant‘s vehicle to be inadmissible as the officer
had based his calculations about the likely speed on a scientific formula that he
had adjusted. The court held that the officer lacked the expertise to adjust the
formula and was therefore giving an opinion outside of the range of his area of
expertise.
3.42 However, where a witness of fact, such as a police officer called to
the scene of accident, was shown to have several years of experience in the
police traffic division, had attended numerous fatal road accidents, and had
attended courses in accident investigation, he may be entitled to give expert
evidence about the issues in the case as well as being a witness of fact.31
3.43 Although rarely challenged in this jurisdiction, the case law from other
jurisdictions would indicate that experts who have gained their specialist
knowledge through practical experience, called ‗ad-hoc experts‘32 or
‗connoisseur experts‘33 would be allowed to give expert evidence here once the

29
(1960) 103 C.I.R. 486 at 491.
30
[2006] Crim. L.R. 183.
31
R v Oakley [1979] R.T.R. 417.
32 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 1-030.
33
Bernstein ―Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the
Daubert Revolution‖ (February 2007). George Mason Law & Economics
Research Paper No. 07-11 Available at SSRN: http://ssrn.com/abstract=963461,
at 29.

141
issue is within their range of experience and is directly related to the issues in
the case.
3.44 In Ireland, the Safety, Health and Welfare at Work Act 2005 provides
that a ‗competent‘ person must be appointed to fulfil the roles set out under the
statutory provisions with the aim of promoting health and safety in the
workplace. Section 2(2) of the 2005 Act states:
―(a) For the purposes of the relevant statutory provisions, a person is
deemed to be a competent person where, having regard to the task
he or she is required to perform and taking account of the size or
hazards (or both of them) of the undertaking or establishment in
which he or she undertakes work, the person possesses sufficient
training, experience and knowledge appropriate to the nature of the
work to be undertaken.
(b) Account shall be taken, as appropriate, for the purposes of
paragraph (a) of the framework of qualifications referred to in the
Qualifications (Education and Training) Act 1999.‖
3.45 This section places a considerable emphasis on both skills and
knowledge, and the reference in section 2(2)(a) to ―sufficient training,
experience and knowledge‖ [emphasis added] would appear to place a higher
onus on an individual under this Act than is placed on a person purporting to act
as an expert witness.
3.46 It could be argued that imposing a requirement on each expert to
demonstrate formal academic qualifications along with substantial practical
experience would be unworkable in practice, taking into account the unlimited
range of subject matters on which an expert may be asked to testify, and the
strong possibility that academic qualifications on such issues may not exist. In
reality, it is submitted, most if not all experts who are hired by parties to give
expert testimony will possess some formal qualifications in their field of
expertise.
3.47 Imposing a requirement for formal qualifications, therefore, may not
prove a significant barrier to entry. However, it must be admitted that many
experts giving expert testimony, particularly on technical or mathematical
issues, are academics. Thus, imposing a requirement for academic
qualifications and practical experience may significantly limit those available to
testify. Indeed, if the academic qualifications are extensive, imposing an
additional requirement for practical experience, in some areas at least may be
unnecessary.

142
(d) Expertise in the actual issue involved in the case
3.48 Nevertheless, it can be seen nowadays that professional
qualifications and accreditations frequently have a significant impact on the
weight and admissibility of expert testimony. Indeed, in the wake of the
development of an expert witness ‗industry,‘ with professionals in every field
imaginable willing to tender their services to the court, it is unlikely that
knowledge merely acquired through a hobby will be considered as sufficient to
render a person competent to be an expert.
3.49 Proving or acquiring expert status is in reality made much easier by
the presence of academic or other qualifications, or professional or other
experience, which gives the individual knowledge or experience beyond that
which the ordinary lay person would possess.34 Furthermore, as pointed out by
Heald LJ:
―However, even though a person may possess significant academic
qualifications, or have lengthy experience in a particular profession
that would indicate expert status on the face of it, this does not
necessarily mean that the person is automatically an expert on the
particular issue which he seeks to prove.‖ 35
3.50 An example of the difference between professional or academic
expertise and actual expertise in the issue in question is amply demonstrable by
the English case Hawkes v London Borough of Southwark.36 Here, Aldous LJ
rejected the evidence of the plaintiff‘s expert witness because, although he
undoubtedly had extensive academic qualifications that went beyond that of the
lay person, the actual issue in question was one which would not have been
proven by this expertise and in this case the issue was in fact within the
knowledge and experience of the ordinary person. He explained:

34
See for example DC v DPP [2005] IEHC 431 where Quirke J placed considerable
emphasis on the expert witness‘s academic qualifications and professional
experience: ―Mr. Gilligan has testified on oath as to his qualifications. They
included B.A. and M.A. degrees and a B.C.S. Diploma in clinical psychology. He
has averred in evidence that he worked for many years as a clinical psychologist
and retains a practice as a working clinical psychologist.‖ Quirke J concluded:
―[T]here is, accordingly, no reason why this court should doubt his professional
competence, his qualifications or his professional capacity to adduce independent
expert testimony for the benefit of this court.‖
35
Heald ―A Judge‘s Analysis‖ (1996) NLJ 1723 at 1724.
36
[1998] EWCA Civ 310 (20 February 1998).

143
 ―Mr Dawson was cross-examined as to his qualifications to give
evidence as an expert. He held a BSc degree in Mechanical
Engineering and was a chartered member of the Institute of
Mechanical Engineers. He had, over a period of about 3½ years,
investigated what he described as numerous manual handling
accidents and prepared expert's reports and given evidence on those
accidents. He had not attempted to carry a door up the stairs and
gave no evidence that he had taken part in any manual handling
operations of the type under consideration in this case. That being so
it must have been apparent, or should have been, to everyone at the
trial that it was questionable as to whether Mr Dawson had the
relevant expertise to give expert evidence relevant to any issue in the
case. Further, it was questionable as to whether any expert evidence
was necessary or admissible.‖37
Further on he concluded:
―I do not believe that Mr Dawson had established that he was
qualified to give expert evidence of the type he did. He had a degree
in Mechanical Engineering and over 3½ years investigated and given
evidence on manual handling accidents. Whether those cases had
any similarity to the one involved in this case is not clear. A person
who investigates accidents does not necessarily acquire expertise in
the reasons why accidents occur. Policemen investigate large
numbers of road accidents. That would not necessarily give them
sufficient knowledge to act as experts in road accident cases. No
doubt experience built up over many years can provide sufficient
expertise to qualify a person to give evidence as an expert, but that is
not this case as Mr Dawson has only been investigating accidents for
about 3½ years. The fact that a person has expertise in aspects of
manual handling cannot qualify him as an expert in all forms of
manual handling. Manoeuvring a door upstairs is very different from
lifting a sack. In my view Mr Dawson established some expertise as a
mechanical engineer. His evidence did not establish that he was
qualified to give expert evidence on the difficulties and risks of
manoeuvring a door upstairs. He gave no evidence as to what was
the usual practice. I believe therefore that his opinion evidence was
inadmissible. Mr Dawson's evidence appears to have prolonged the
trial. It provoked Counsel for the Defendants to cross-examine him on

37
Hawkes v London Borough of Southwark [1998] EWCA Civ 310 (20 February
1998).

144
 his opinion, thereby lengthening and complicating what was a simple
case.‖38
3.51 Therefore, an expert will have to be able to demonstrate to the court
that he is not only an expert in the particular field, but that he also has expert
knowledge and or considerable experience on the particular issue which is the
subject matter of the case. This makes expert status a highly subjective concept
and one which will undoubtedly depend on the specific facts and issues of each
case. A keen understanding that having a lengthy curriculum vitae will not grant
automatic expert status was succinctly summarised by Heald LJ:
―Personal and professional qualification and experience are useful
benchmarks provided that long service does not mask an ignorance
of and unwillingness to face and absorb new ideas and analytical
methods. Length of experience needs to be qualified by the
professional and geographical areas in which it has been gained.‖
(e) Contemporary Expertise
3.52 A final point to note is that it is self evident that continued
participation or research in the expert‘s profession or field is essential to
maintain an awareness of changes and developments in the subject matter. An
expert who becomes a full time expert may therefore be liable to become out of
touch with the industry.
3.53 One way of preventing this from occurring is to introduce a
requirement that only persons who are involved either academically or
professionally with the subject matter at the time they are being put forward as
an expert witness should be allowed to be considered as such.
3.54 Such a requirement would help to ensure that the opinion given is
coming from someone who is up to date with the industry and therefore can
give a well researched contemporary opinion.
3.55 On the other hand, such a requirement could be considered
excessively onerous and could have the affect of disproportionately excluding a
large number of experts, who would otherwise be more than qualified, from
giving expert evidence.
3.56 For example, it is often the case that retired professionals will offer
their services as expert witnesses in their area of expertise as a way of having
an extra income on retirement. The length of experience such individuals have
gained could mean they have very valuable expert opinion evidence to offer the

38
Hawkes v London Borough of Southwark [1998] EWCA Civ 310 (20 February
1998).

145
court but they would be prevented from doing so by the introduction of such a
requirement.
3.57 The Commission can now turn to set out the provisional
recommendations it has reached on this area, and in respect of which it seeks
submissions and views.
(f) Provisional recommendations and views
3.58 The Commission provisionally recommends the adoption of a
definition of the term “expert” for the purposes of giving expert testimony and
invites submissions on the form of wording that would be appropriate for such a
definition.
3.59 The Commission invites submissions as to whether experience-only
based knowledge should suffice for a witness to be entitled to give expert
evidence or whether formal, professional qualifications, study or training is
necessary.
3.60 The Commission provisionally recommends that a person seeking to
act as an expert witness need not be actively involved in the field of expertise at
the time of the giving of expert evidence.
3.61 The Commission provisionally recommends that, when assessing the
competency of an individual to be considered an expert, considerable account
be taken of the length of time they have spent studying or practising in the
particular area, as well as, in the case of retired people and others no longer
practising, the length of time they have spent away from the field.
(3) Court Procedure for Proving Expertise
(a) Judicial Decision
3.62 Deciding if a person is competent to be considered an expert is a
matter for the presiding judge, who will have to be satisfied that the expert
witness possesses special knowledge and experience going beyond that of the
trier of fact.39
3.63 The party calling the expert bears the burden of proving the expert‘s
qualifications and credentials as an expert in the field in question. This is
normally done by way of preliminary questions during the examination-in-chief
stage of the proceedings after the witness has taken an oath. 40
3.64 If there is a challenge to the witness‘s expertise, this can be proved
by the expert by testifying about his qualifications and/or experience. In the

39
R v Marquard, 1993 CanLII 37 (S.C.C.).
40
Healy Irish Laws of Evidence (2004 Thomson Roundhall) at 361.

146
absence of a rebuttal of expertise, the judge will accept the witness‘s testimony
of his qualifications or experience as prima facie evidence of his expertise and
primary evidence of this will not be required. 41
3.65 It is submitted that it may prove confusing for a jury to hear the expert
evidence of a witness and for the evidence then to be ruled inadmissible at a
later stage in the trial. The merits of introducing a preliminary hearing (voir dire)
for assessing the expert witness‘s qualifications and experience should be
considered. This is discussed in greater detail in Chapter 5, below.
(b) Cross Examination
3.66 In general terms, it can be said that the actual expertise of an expert
witness is not likely to be challenged for the simple reason that the expert is well
known to legal counsel and to the court. In a minority of cases, expertise may
be robustly challenged as a matter of the admissibility of the evidence, but this
is not common. It is more common that the actual substance of the evidence
given is challenged in terms of the weight to be attached to it, as opposed to its
admissibility.42 In this respect, the main way in which a witness‘s expertise is
determined in our adversarial system is through examination and (sometimes
robust) cross examination in court. A witness may be subject to extensive
questioning by the opposing party (and, on occasion, by the judge) about the
extent of their expertise and their professional ability to express a valid expert
opinion on the issue sought to be given in evidence.
3.67 For example in the infamous 1931 English case R v Rouse,43 the first
question put to the defence‘s expert engineer by the prosecuting counsel was
―What is the coefficient for the expansion of brass?‖ The exchange between the
two continued:
―Q. I asked you: What is the coefficient of the expansion of brass? Do
you know what it means? A. Put that way, probably I do not. Q. You
are an engineer? A. I dare say I am. Q. Let me understand what you
are. You are not a doctor? A. No. Q. Not a crime investigator? A. No.
Q. Nor an amateur detective? A. No. Q. But an engineer? A. Yes. Q.

41
Martin v Quinn [1980] I.R. 244; Minister for Agriculture v Concannon, High Court,
14 April 1980; DPP v O'Donoghue [1991] 1 I.R. 448. Cited in McGrath Evidence
(Thomson Roundhall 2005) at 318.
42
See the comments of Hardiman J in JF v DPP [2005] IESC 24 (26 April 2005),
quoted at paragraph 3.123, below.
43
The Times, 24 February 1931.

147
 What is the coefficient of the expansion of brass? You do not know?
A. No, not put that way.‖44
3.68 In this case, the witness‘s professional experience more than
enabled him to testify on the technical issue for which he had been hired, but
this method of cross-examination had the effect of seriously undermining his
credibility. Although the question was later criticised as unfair, in that it was
unrealistic to ask an expert to know the exact technical answer to this question
off the top of his head, the expert witness should have been prepared to
respond to such a question by revealing that he understood the question and
explaining why it is impossible to give a straightforward answer and then going
on to reveal how the answer should be determined.
3.69 It can be seen from the above exchange that one of the
consequences of having such a broad definition of the term ‗expert‘ is that many
professionals who offer their services in court do not fully appreciate the extent
of the role of the expert witness. As explained by a leading consultant in this
area in Ireland:
―They don‘t understand that the first thing a good cross-examining
barrister is going to do is to attack their credibility. They take things
personally. They often don‘t realise that once they put themselves out
there as an expert they stand to have their expertise and credibility
challenged – that‘s how the system is supposed to work.‖45
(c) Requirement of Oratorical Ability
3.70 An expert witness is therefore someone not only who has the
necessary knowledge and expertise in the subject matter in question to give a
valid opinion, but also who has the necessary explanatory skills to demonstrate
and explain this expertise before a judge and jury, and the ability to withstand
robust cross examination. As elucidated by Jacob L.J. in Rockwater v Technip
France SA & Ors:46
―Their function is to educate the court in the technology – they come
as teachers, as makers of the mantle for the court to don. For that
purpose it does not matter whether they do or do not approximate to
the skilled man. What matters is how good they are at explaining
things.‖

44
O‘Flaherty ―The Expert Witness and the Courts‖ (1997) 3 MLJI 3 at 6 See also
Normanton (ed) The Trial of A.A. Rouse (1931, William Hodge and Company).
45
See O‘Boyle ―Leave it to the Experts‖ (1998) 92 (9) Law Society of Ireland
Gazette 20 at 22.
46
[2004] EWCA Civ 381; [2004] R.P.C. 46.

148
3.71 The Guidance Protocol designed to supplement the Civil Procedure
Rules (CPR) in England shows an understanding of the extent of the requisite
elements to be an expert witness. 47 This Protocol significantly develops the
CPR r. 35 definition of an expert, and provides useful guidance about the full
extent of the role and function of an expert. It sets out that prior to appointment
of an expert in civil litigation the following must be established:
That they have the appropriate expertise and experience
That they are familiar with the general duties of an expert
That they produce a report, deal with questions and have discussions
with other experts within a reasonable time and at a cost proportionate
to the matters in issue;
A description of the work required
Whether they are available to attend the trial, if attendance is required;
and
There is no potential conflict of interest.48
3.72 Our adversarial system assumes that if there is any shortfall in the
witness‘ expertise, it will be exposed at examination in chief or cross
examination stages and the witness may be prohibited from giving expert
evidence or at least their opinion will be considerably undermined and limited
weight will attach to such opinion.
3.73 However, although examination in chief and cross examination will
be effective in weeding out potential charlatans in the majority of cases, it may
prove difficult on occasion to determine or quantify the extent of the witness‘
purported expertise, particularly where specialist knowledge is be required in
relation to an area which is not governed by some form of professional
accreditation, study or training.
3.74 The potential difficulties with assessing expertise are clear when one
considers that the judge is ultimately given the task of evaluating the skill and
ability of the witness to give evidence on a subject, where the reason such
evidence is being admitted is because the subject is outside the range of
knowledge of the judge.

47
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005).
48
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 7.1.

149
(4) Relationship between an Expert Witness & Instructing Party
3.75 The Irish courts have held that a person is not entitled to give expert
evidence where he or she is one of the parties to the case. 49 However, it has
been held on a number of occasions that a person can be called as an expert
witness if they have a pre-existing relationship with one of the parties, for
example if they are in their employment.
3.76 The Supreme Court in Galvin v Murray50 reversed the decision of
Johnston J in the High Court where he had held that where a County Council
sought to rely on engineers engaged by it for the purposes of litigation, they
should not be considered to be expert witnesses. At issue was O.39, rules 45
and 46 of the Rules of the Superior Courts 1986 as inserted by the Rules of the
Superior Courts (No 6) (Disclosure of Reports and Statements) 1998 which
provide that all documents prepared by (inter alia) an expert for the purpose of
giving expert evidence may be made the subject of a discovery order. In this
case, the County Council argued that the evidence given by an engineering firm
who were employed by the Council was not covered by the discovery rules as
the report of the engineers was submitted in their capacity as employees of the
Council and not as experts. Murphy J in the Supreme Court accepted that the
report of an expert who is also an employee or agent of a party may contain
observations beyond that which an independent expert might have made which
may act to the detriment of that party, but reasoned that it remained open to that
party to engage another expert witness instead of calling its employees or
agents.
3.77 Murphy J went on to hold that while the fact that the witness was
employed or engaged by one of the parties may affect his independence, this
should be taken into account when assessing the weight to be attached to his
expert evidence, and should not affect his status as an expert. In support of this
view, he approved the English decision Shell & Pensions v Fell Frischmann51
where it had been pointed out that the English rules pertaining to expert
evidence, like the Irish rules, ―refer to ―expert evidence‖ and not to ―evidence
given by independent experts.‖
3.78 In Shell it was held that the rules relating to expert evidence ―apply
generally to independent experts, to so called ‗in-house‘ experts and to parties
themselves,‖52 which Murphy J considered was the correct approach to adopt. 53

49
Herbert J in Sheeran v Meehan High Court, 6 February 2003.
50
[2000] IESC 78.
51
[1986] 2 All ER 911.
52
[2000] IESC 78 at 85.

150
3.79 In England, the same approach was taken in Field v Leeds City
Council54 where it was held that the mere fact of employment did not disqualify
the employee from acting as an expert witness for his employer, as long as the
employee was able to prove that he had the relevant expertise in an area in
issue and that he was aware of his overriding duty to the court, not to his
employer.55 However, it was also stressed by May LJ that the fact that the
expert was in the employment of one of the parties may affect the weight to be
afforded to his opinion.56
3.80 The opposite view appears to have been taken in the later English
case Liverpool Roman Catholic Archdiocesan Trust v Goldberg.57 Here, Evans-
Lombe J held inadmissible the evidence of an expert tendered on behalf of the
defendant, due to the fact that the defendant had had a close personal and
professional relationship with the expert for several years. He held that the
expert should not be entitled to give evidence on public policy grounds in that
that justice should not only be done but should be seen to be done:58
―…where it is demonstrated that there exists a relationship between
the proposed expert and the party calling him which a reasonable
observer might think was capable of affecting the views of the expert
so as to make them unduly favourable to that party, his evidence
should not be admitted, however unbiased the conclusions of the
expert might probably be. The question is one of fact, namely, the
extent and nature of the relationship between the proposed witness
and the party.‖59

53
See also R v Gokal [1999] EWCA Crim 669 (11 March 1999) where one of the
grounds of appeal against a conviction for conspiracy to defraud was that two of
the expert witnesses proffered should not have been entitled to give evidence on
the grounds that they were not independent as their company was at the time of
the case involved in a negligence action against one of the parties to the case.
The judge held that the expert‘s were properly entitled to give evidence as the
trial judge had clearly pointed out the factors that might affect the reliability of the
expert‘s evidence and the extent of independence could go only to weight not
admissibility.
54
[1999] EWCA Civ 3013 (8 December 1999).
55
Per Waller LJ at [27] [1999] EWCA Civ 3013 (8 December 1999).
56
Per May LJ at [31] [1999] EWCA Civ 3013 (8 December 1999).
57
[2001] EWHC Ch 396 (6 July 2001).
58
[2001] EWHC Ch 396 (6 July 2001) at [12].
59
[2001] EWHC Ch 396 (6 July 2001) at [13].

151
3.81 However, this approach was held to be incorrect by the Court of
Appeal in R (Factortame & Ors) v Secretary of State for Transport.60 Lord
Phillips MR reasoned that such an approach would have the result of
automatically excluding any employee from giving evidence on behalf of an
employer.61
3.82 He held that while it is desirable that an expert witness have no
actual or apparent interest in the outcome of the proceedings, such an interest
is not an automatic reason for exclusion from giving expert evidence, 62 thus re-
establishing the earlier, and it is submitted, more desirable, approach to
admitting experts who have a pre-existing relationship with one of the parties.
3.83 Factortame was also approved in Armchair Passenger Transport Ltd
v Helical Bar PLC63 and Nelson J outlined the reasons for this approach:
―It is always desirable, as the Court of Appeal said in Factortame that
an expert should have no actual or apparent interest in the outcome
of the proceedings. Expert witnesses should be chosen accordingly
so that the difficulties which have arisen in this case can be avoided.
I recognise however that there are fields in which only a limited
number of experts are available and that those who are pre-eminent
may have direct work experience in the field or with competitors
which might at first sight be thought to threaten their independence.
Such cases should be rare but when they arise should be dealt with
in accordance with the principles in Factortame and Field.‖64
3.84 This highlights that acquiring ‗expert witness‘ status does not require
the witness to be independent from the parties. The difficulties posed by an
absolute exclusion on experts who have a pre-existing relationship with one of
the parties become clear when applied in the criminal context, as many of the
forensic experts that may be called to give evidence will have been employed
by the state.65

60
[2002] EWCA Civ 932 (3 July 2002).
61
[2002] EWCA Civ 932 (3 July 2002) at [70].
62
Per Phillips MR at [70] [2002] EWCA Civ 932 (3 July 2002).
63
[2003] EWHC 367.
64
[2003] EWHC 367 at [65].
65 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at para. 10-015.

152
3.85 However, as will be discussed below, there is nevertheless a duty on
the expert to give evidence in an independent and impartial manner. As Head
LJ stated:
―The expert witness should never be a party‘s advocate but a person
who, having understood the parties‘ relevant allegations, can see
whether they correctly define the issues to which his expertise is to
be directed and – pinpointing any discrepancies – can put his
expertise impartially at the disposition of the judge to assist him to
perform his task of rightly deciding an issue before him.‖66
(5) Conclusion
3.86 The above discussion highlights that it can be occasionally difficult to
determine if a person is an ‗expert‘ based on their experience or qualifications,
or whether the issue they purport to be an expert on is considered a reliable
body of specialist knowledge outside of the range of knowledge of the finder of
fact. The judge is given the task of assessing whether or not a person is an
expert, but cross examination is also instrumental in revealing potential failings
in an expert‘s knowledge and expertise.

C Principal Recognised Duties of Expert Witnesses

(1) No Definitive List of Duties in Ireland
3.87 In Ireland, in The People (DPP) v Fox67 the Special Criminal Court
approved Lord President Cooper‘s definition of the overriding function of an
expert witness, as set down in Davie v Edinburgh Corporation Magistrate:68
―Their duty is to furnish the judge or jury with the necessary scientific
criteria for testing the accuracy of their conclusions so as to enable
the judge or jury to form their own independent judgment by the
application of these criteria to the facts proven in evidence.‖ 69
3.88 In this jurisdiction however there has been little judicial or legislative
direction to date for expert witnesses about the extent of their role, function and
duties. In preparing this Consultation Paper, it has been indicated to the
Commission that many expert witnesses have learned about their role and
duties through ad hoc advice from previous experts, lawyers, and from the

66
Head ―A Judge‘s Analysis‖ (1996) NLJ 1723.
67
Special Criminal Court, 23 January 2002.
68
(1953) SLT 54.
69
(1953) SC 34 at 40.

153
general trial process. This may not lead to a full understanding of what the role
of the expert witness entails.
3.89 It has been suggested to the Commission that some experts
experienced difficulty in obtaining full and accurate instructions. It may, for
example, be understandably difficult for an instructing lawyer to give appropriate
instructions where a complex area of expertise is at issue. It has been
suggested to the Commission that some experts may see their role as being an
advocate to the instructing party, rather than as owing a duty to the court.
3.90 Similar sentiments have been expressed by several judges who have
experience in receiving expert evidence. According to Barr J:
―They [expert witnesses] are rarely dishonest or deliberately unfair,
but they seem to lack a true understanding of their function, i.e., to
assist the court in arriving at the truth by providing a skilled expert
assessment, which is objective and fair, of matters requiring a
specialised appreciation of the particular problem at issue.‖ 70
(2) The Ikerian Reefer case
3.91 In England, prior to the introduction of the Civil Procedure Rules
1998, made under the Civil Procedure Act 1997 (which followed Lord Woolf‘s
Access to Justice Reports), the authoritative judgment on the conduct and
duties of experts was National Justice Compania Naviera SA v Prudential
Assurance Co Ltd (The Ikerian Reefer),71 in which Cresswell J assembled the
duties and responsibilities applicable to expert witnesses that had been
recognised over the years:72
―The duties and responsibilities of expert witnesses in civil cases
include the following:

1. Expert evidence presented to the Court should be, and should be

seen to be, the independent product of the expert uninfluenced as to
form or content by the exigencies of litigation (Per Lord Wilberforce
Whitehouse v Jordan [1981] 1 W.L.R. 246 at p. 256).

2. An expert witness should provide independent assistance to the

Court by way of objective unbiased opinion in relation to matters within
his expertise (see Polivitte Ltd v Commercial Union Assurance Co. Plc

70
Barr ―Expert Evidence - A Few Personal Observations and the Implications of
Recent Statutory Development‖ (1999) 4 (4) BR 185.
71
[1993] 2 Lloyd‘s Rep 68.
72
[1993] 2 Lloyd's Rep 68, at 81-82.

154
 [1987] 1 Lloyd's Rep. 379 at p. 386 per Mr. Justice Garland and Re J,
[1990] F.C.R. 193 per Mr. Justice Cazalet). An expert witness in the
High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumption upon which

his opinion is based. He should not omit to consider material facts
which could detract from his concluded opinion (Re J sup.).

4. An expert witness should make it clear when a particular question or

issue falls outside his expertise.

5. If an expert's opinion is not properly researched because he

considers that insufficient data is available, then this must be stated
with an indication that the opinion is no more than a provisional one (Re
J sup.). In cases where an expert witness who has prepared a report
could not assert that the report contained the truth, the whole truth and
nothing but the truth without some qualification, that qualification should
be stated in the report (Derby & Co Ltd and Others v Weldon and
Others, The Times, Nov. 9, 1990 per Lord Justice Staughton).

6. If, after exchange of reports, an expert witness changes his view on a

material matter having read the other side's expert's report or for any
other reason, such change of view should be communicated (through
legal representatives) to the other side without delay and when
appropriate to the Court.

7. Where expert evidence refers to photographs, plans, calculations,

analyses, measurements, survey reports or other similar documents,
these must be provided to the opposite party at the same time as the
exchange of reports (see 15.5 of the Guide to Commercial Court
Practice).‖
3.92 Although this summary has not been expressly cited with approval in
Ireland, the judgment remains the seminal decision on the duties of expert
witnesses in many common law jurisdictions. It has been cited and endorsed in
numerous cases and academic works on the topic of expert witnesses in
several common law jurisdictions, and has formed the basis for practice
directions for expert witnesses in England and Australia.
3.93 As already mentioned, in this jurisdiction there has been little
legislative or judicial guidance about the applicable duties owed by expert
witnesses in this jurisdiction. In contrast, other jurisdictions have taken a
number of different approaches when it comes to outlining the extent of the
duties of an expert witness.

155
(3) Summary of Main Recognised Duties
3.94 Prior to summarising the approaches taken by the various bodies and
the different jurisdictions, it may be worthwhile to summarise some of the
principle duties and obligations that have repeatedly been identified as forming
an inseparable part of the expert witness‘s role, in an effort to determine what
the minimum contents should be of any code of conduct or practice direction for
expert witnesses in this jurisdiction.
3.95 There is a strong argument to be made that these duties, or at least a
large number of them, should be set down in some sort of normative framework
in this jurisdiction. Even if this does not have the weight of a statute or Statutory
Instrument, it may be useful to create some sort of Practice Direction or even
Guidance Leaflet that would provide guidance for expert witnesses about the
extent of their role and obligations.
3.96 The principal duties which should form part of any such Code of
Guidance will now be set out, along with a discussion about how they might fit
into the current Irish legal framework.
(a) Role and Function of Expert Witness
3.97 The main role and function of the expert is ―to furnish the judge or
jury with the necessary scientific criteria for testing the accuracy of their
conclusions, so as to enable the judge or jury to form their own independent
judgment by the application of these criteria to facts provided in evidence.‖ 73
3.98 This description of the role and function of the expert provides a
useful starting point on which to discuss the necessary duties which an expert
must obey in order to correctly and effectively carry out this function.
(b) Overriding Duty to the Court
3.99 The expert owes a paramount duty to assist the court by providing
independent and unbiased opinion on matters within his own expertise which
will enable them to reach their decision, and an accompanying duty to bear this
overriding obligation in mind when giving evidence. 74
th
3.100 Indeed, it has been recognised as far back as the mid 19 century in
this jurisdiction that while an expert is retained and remunerated by a party to
an action, in the words of Crampton J in R v O'Connell75 ―he has a prior and

73
Per Lord President Cooper in Davie v Edinburgh Magistrates [1953] SLT 54.
74
Per Garland J Polivitte Ltd. v. Commercial Union Assurance Co. Plc. [1987] 1
Lloyd's Rep. 379 at p. 386; Cazalet J in Re J, [1990] F.C.R. 193.
75
(1844) 7 Irish L. Rep 261.

156
perpetual retainer on behalf of truth and justice.‖ 76 Therefore, the demands of
Justice must be placed above any particular personal or party interest that the
expert may have.77
3.101 Setting out an express overriding duty to the court seems to have
occurred across the board in all jurisdictions in any code of guidance that has
been created for experts. The aim of such an express requirement is to firmly
implant it into the expert‘s mind that their function is the provision of unbiased
information to the court, and not to provide a one-sided opinion preferred by the
instructing party. In this way the ‗overriding duty‘ can be interpreted as meaning
that the duty owed to the party can never supersede the duty owed to the court.
3.102 However, Edmond discusses the potential impact of the imposition of
an explicit duty and argues that such a reform is unlikely to make much
difference to the practice and culture of expert witnessing. 78 He argues that
experts are already under a duty to tell the truth in court as a result of swearing
the oath, so ―it does not follow that clarifying the duty will produce more
objective evidence….[and] expecting the imposition of an additional obligation
to have manifest effects on expert practice might seem a little optimistic.‖ 79
3.103 Furthermore, the legal attribution of duties may come into conflict
with contractual duties that may be owed to the instructing party in relation to
priority of obligations, particularly where the potential expert is in a pre-existing,
pre-litigation, contractual arrangement with one of the parties.
3.104 However, it is submitted that the potential significance of the
introduction of an overriding duty far outweighs the arguments for non-inclusion.
Edmond does admit that such a duty may have such effects as encouraging
experts to divulge more information or structure their reports differently.80
3.105 Therefore it is submitted that the introduction of an express, legally
binding paramount duty to the court is very worthy of consideration, even if it
goes no further than to clarify in the expert‘s mind the focus of their role to give
independent, objective information to the court.

76
(1844) 7 Irish L. Rep 261 at [321]; This decision was cited in approval in Rondel v
Worsley [1967] 1 QB 443.
77
O‘Flaherty ―The Expert Witness and the Courts‖ (1997) 3 MLJI 3.
78
Edmond ―Edmond ―After Objectivity: Expert Evidence and Procedural Reform‖
(2003) Syd L Rev 8.
79
Edmond ―Edmond ―After Objectivity: Expert Evidence and Procedural Reform‖
(2003) Syd L Rev 8.
80
Edmond ―Edmond ―After Objectivity: Expert Evidence and Procedural Reform‖
(2003) Syd L Rev 8.

157
(c) Duty to Give Well-Balanced, Well-Reasoned & Honestly Held
Opinion
3.106 When experts are giving their expert opinion, they are under a duty to
ascertain all relevant facts and all essential information of the case, including
those facts which may detract from their opinion. They must then ensure that
the opinion given is clear, accurate, unbiased, and contains all essential
information such as the expert‘s opinion, the material he based this opinion
on,81 whether or not this information supports the proposition he is being asked
to put forward or not, and his thought processes in coming to this opinion.
3.107 This duty also involves a requirement to ensure that any opinion
given is genuinely held and, where practicable, is reasonable. The expert is also
expected to disclose whether or not any assumptions have been made in the
opinion, and any data limitations or shortcomings which may affect the result of
the opinion, and to inform the court about a change of opinion or when unable
to give a definitive opinion on a matter. 82
3.108 A number of cases in this jurisdiction, which are discussed below,
have examined the calibre of expert evidence and what standard of expertise
will be required. It is argued therein that it is pointless in recruiting a
professional witness if their evidence does not demonstrate expertise once
critically examined.

81
As per Heydon J in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14
September 2001), a prime duty of expert witnesses in giving opinion evidence is
―to furnish the trier of fact with criteria enabling evaluation of the validity of the
expert's conclusions.‖ In this case, the NSW Court of Appeal rejected the expert‘s
opinion as he had failed to properly explain how he had reached his conclusions,
and failed to outline the facts and assumptions underlying his conclusions.
82
Head LJ states that in giving evidence, an appropriate checklist for an expert
should be: ―1. What truly are the allegations which concern me; do they define
what I see as the true issue(s)? 2. Have I studied all the witness statements and
disclosed documents to ascertain the facts 3. Have I made all appropriate factual
observations of bodies, places, machines, buildings, accounts etc? 4. Have I
specified for myself the assumptions that I shall rely on so clearly that, if
challenged, I can detail them and identify all my sources? 5. Have I prepared by
report in simple, intelligible English, using as few technical words as I can,
explaining those that necessarily remain? 6. What, if any, do I see as the points of
challenge to my observations, assumptions, and conclusions; and what, if any,
are the answers to them? 7. Since the expert is not an advocate but must inform
the mind of the court fully not partially, have I improperly omitted anything
relevant?‖ See Head LJ ―A Judge‘s Analysis‖ (1996) NLJ 1723.

158
3.109 Therefore there is a duty on expert witnesses to ensure their opinion
is thoroughly researched, taking into account all relevant theories and
developments in the area, so that all expert knowledge possible is brought
before the court.
3.110 In MS v DPP83 McCracken J. made reference to the duty of an
expert witness to take all efforts to create full and informed expert report,
containing all relevant facts, even those which do not support the opinion of the
expert, when he stated emphatically;
―It is my strongly held view that where a witness purports to give
evidence in a professional capacity as an expert witness, he owes a
duty to ascertain all the surrounding facts and give that evidence in
the context of those facts, whether they support the proposition he is
being asked to put forward or not.‖
3.111 The necessity to place all relevant information before the court, and
the consequences of a failure to do so, were also emphasised in this jurisdiction
in The People (DPP) v Allen.84 Here, the appellant argued that the expert
witness, a forensic scientist, had not presented a full and complete summary of
the statistical chances of the DNA evidence in question being that of the
appellant.
3.112 The Court of Criminal Appeal emphasised that as DNA evidence is a
relatively recent technique, and is an issue in which the jury are likely to be
entirely reliant on expert evidence, it was likely that the jury could come to the
conclusion that the evidence is infallible, thus placing a high onus on the expert
to explain that this is not the case. 85
3.113 The court proceeded to allow the appeal on the grounds that the
expert had failed to elicit complete statistics concerning DNA comparisons
between brothers, a failure which had the potential to mislead or confuse the
jury. It was reiterated that ―the real problem in this case is not the evidence
which [the expert] gave, but rather the evidence which she did not,‖ 86 which
serves to clearly stress again the importance of the expert disclosing all relevant
and surrounding facts involved in the particular case.
3.114 The necessity to give a well informed opinion backed up by scientific
reasoning was also stressed in The People (DPP) v Fox.87 Here, the

83
High Court, 5 December 1997.
84
[2003] 4 I.R. 295.
85
[2003] 4 I.R. 295 at 299.
86
[2003] 4 I.R. 295 at 299.
87
Special Criminal Court, 23 January 2002.

159
prosecution sought to rely on the evidence of an expert on handwriting to prove
that it was the accused‘s signature on a document in issue. The Court rejected
this evidence by finding that the evidence in question was not backed by any
scientific criteria which would have enabled the finder of fact to test the
accuracy of the expert‘s conclusions.
3.115 It was pointed out that it was common practice when giving expert
evidence of handwriting to give the similarities and dissimilarities of the writing
which the expert relies on in evidence and this was not done here. Similarly, the
expert was criticised for his sole reliance on lower case writing without giving an
explanation for doing so. The Court approved an extract from the Scottish case
Davie v Edinburgh Corporation Magistrate:88
―In particular the bare ipso dixit of a scientist, however eminent, upon
the issue in controversy will normally carry little weight for it cannot
be tested by cross-examination or independently appraised and the
parties have invoked the decision of a judicial tribunal and not an
oracular pronouncement by an expert.‖
3.116 Similar emphasis has been placed on the need for the opinion to be
sufficiently backed up with supporting evidence in England. As stated by Jacob
LJ in Routestone v Minories Finance:89
―What really matters in most cases are the reasons given for the
opinion. As a practical matter a well constructed expert's report
containing opinion evidence sets out the opinion and the reasons for
it. If the reasons stand up, the opinion does, if not, not.‖
3.117 The English case R v Clark (Sally) 90 is also a good example of the
potential onerous consequences of a failure to disclosure of all relevant
information. Here, Mrs. Clark was convicted of the murder of her two sons
largely as a result of the testimony of an expert witness, Dr. Williams, who had
conducted the post-mortem on the two babies. After the first post mortem Dr.
Williams concluded that the baby had died from sudden infant death syndrome,
yet after the second post-mortem, reconsidered the case and concluded that
both babies had probably died as a result of shaking.
3.118 However, following the first (unsuccessful) appeal against the
conviction in 2000,91 records of microbiological tests that had been taken by Dr.
Williams during the post-mortem of the second baby were discovered which

88
(1953) SLT 54.
89
[1997] BCC 180.
90
[2003] EWCA Crim 1020
91
R v Clark [2000] EWCA Crim 54 (2nd October, 2000).

160
showed the presence of a particular bacterium making the death consistent with
staphylococcal infection, and thus not from unnatural causes.92 The case was
referred back to the Court of Appeal on the grounds of newly discovered
evidence and as a result of this, along with inaccurate evidence from another
expert witness, Mrs. Clark was ultimately acquitted, not however, until she had
been wrongly convicted for the murder of her two babies and served more than
three years of her sentence.
(d) Requirements of Truth, Independence and Impartiality
3.119 It is the basic duty of every expert to act in such a way so as not to
bring into disrepute the standard of experts. More specifically, the expert must
resist becoming a partisan advocate for the instructing party and always act
justly and independently. In England, the Civil Justice Council‘s Protocol for
experts states that a useful test of independence is that the expert would give
the same opinion even if acting for the other side. 93 Similarly, a willingness to
consider and accept the alternative view put forward by another is vital in an
expert; ―unqualified loyalty to one‘s own opinion is not acceptable.‖ 94
3.120 The duty to remain independent and impartial is given further weight
due to the incorporation of the European Convention on Human Rights (ECHR)
in this jurisdiction by the European Convention on Human Rights Act 2003.95
Article 6 of the ECHR provides:
―In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law.‖
3.121 Clearly, if the tribunal by which an individual is to be tried is to remain
‗independent and impartial‘ as required by Article 6, those individuals brought in
to assist the court by providing expert evidence must act independently and
impartially at all times. However, the comments of Potter J in the English case
Toth v Jarman96 are relevant in this regard: ―The requirement in [Article 6
ECHR] for an ―independent and impartial tribunal‖ relates to the integrity of the

92
See Dwyer ―Case Note – The Duties of Expert Witnesses of Fact and Opinion; R
v Clark (Sally)‖ (2003) 7 International Journal of Evidence and Proof 264.
93
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 4.3.
94
Head ―A Judge‘s Analysis‖ (1996) NLJ 1723.
95
Number 20 of 2003.
96
[2006] EWCA Civ 1028 at [106].

161
tribunal. It does not mean that an expert witness called by the parties must
satisfy the same test of independence as a judge is required to satisfy.‖
3.122 In Payne v Shovlin,97 Kearns J referred to the introduction in 1999 of
the Civil Procedure Rules in England and Wales and that Lord Woolf‘s
motivation for their introduction (as expressed in his Access to Justice reports)
was so that expert witnesses would not be ―partisan advocates‖ but ―mutual fact
finders or opinion givers.‖
3.123 In JF v DPP98 Hardiman J referred to the function of experts and the
requirement for independence, and explained that the independence of an
expert is not affected by the adversarial system where both sides introduce their
own experts to advance their own arguments. He sought to explain that the
expert should, and does, retain his independence, when the other side
advances their own expert, and the presence of an expert on the other side
does not detract from the independence of an expert.
―In the ordinary personal injuries case, where the plaintiff is deploying
expert opinion, it will usually be the opinion of a reputable medical,
engineering or actuarial practitioner whose integrity and
independence is rarely if ever in doubt. The employment of an expert
on the other side is not posited on any doubts as to the competence
or integrity of the plaintiff‘s expert. It is done to ensure that everything
is taken into account, to counter any unconscious sympathy with
one‘s own patient or client, to ensure that the latest techniques and
interpretations are brought to bear, to detect any unwarranted
assumptions or conclusions and to test and challenge the other
side‘s expert opinion insofar as that can properly be done. Moreover,
the mere presence, actual or anticipated, of an expert on the other
side provides a wholesome discipline. I would entirely reject the view,
implicit in certain of the prosecutor‘s submissions, that it is only
where there is some reason to doubt the independence or objectivity
of one side‘s expert witness that the other has a right to deploy
expertise of its own.‖99
3.124 Lord Wilberforce‘s oft-cited warning about the duty to act with
independence is that ―expert evidence presented to the Court should be, and
should be seen to be, the independent product of the expert uninfluenced as to
form or content by the exigencies of litigation.‖100 However it must be recognised

97
[2006] IESC 5 (9 February 2006).
98
[2005] IESC 24 (26 April 2005).
99
[2005] IESC 24 (26 April 2005).
100
Per Lord Wilberforce Whitehouse v Jordan [1981] 1 W.L.R. 246 at p. 256.

162
that this provision should not be taken in its literal sense; it implies that an
expert should act in an impartial, independent and unbiased manner at all times
and they should never amend their report in order to comply with their
instructing party‘s argument.
3.125 It does not mean that the report should be completely untouched by
the court requirements as in reality an expert‘s report will have to be created
with litigation in mind and thus will have to conform to an expected standard and
format. Therefore the content, and not the form, must be uninfluenced by the
exigencies of litigation, and the expert will be expected in their report to keep
the issues in the case in mind and not give more general principles.
3.126 The requirement to be truly independent can raise problems in cases
where the expert is in a pre-existing relationship with one of the parties, such as
an employee. This was referred to by Murphy J in Galvin v Murray101 where he
acknowledged that the fact that a witness is an employee of one of the parties
may affect his independence, and this is a matter which may affect the weight to
be afforded to his testimony.
3.127 However, Murphy J also pointed out in the course of the judgment
that it remains open to each party to hire an independent expert, and not an
employee, and in any event, any expert coming before the court will have to
convince the finder of fact that their evidence carries considerable weight, an
issue that will depend on the facts and circumstances of each case. Therefore
imposing a legally binding requirement of independence would not appear to be
too onerous.
(e) Duty to Limit Contentious Issues
3.128 This duty was referred to in England by Tomlin J in Graigola Merthyr
Co Ltd v Swansea Corporation102 where he stated:
―…long cases produce evils ... In every case of this kind there are
generally many ―irreducible and stubborn facts‖ upon which
agreement between experts should be possible and in my judgment
the expert advisers of the parties, whether legal or scientific, are
under a special duty to the court in the preparation of such a case to
limit in every possible way the contentious matters of fact to be dealt
with at the hearing. That is a duty which exists notwithstanding that it
may not always be easy to discharge.‖
3.129 The reasoning behind the imposition of a duty of an expert to narrow
contentious issues was explained by Chadwick J in Stanton v Callaghan:103

101
[2000] IESC 78.
102
[1928] 1 Ch 31.

163
 ―It is of importance to the administration of justice, and to those
members of the public who seek access to justice, that trials should
take no longer than is necessary to do justice in the particular case;
and that, to that end, time in court should not be taken up with a
consideration of matters which are not truly in issue. It is in that
context that experts are encouraged to identify, in advance of the
trial, those parts of their evidence on which they are, and those on
which they are not, in agreement.‖
3.130 The introduction in England of the Civil Procedure Rules 1998 have
consolidated this duty to a certain extent as Rule 35.12 provides that the court
may direct a ‗without prejudice‘ discussion between the experts for the purposes
of requiring the experts to reach an agreement on those expert issues on which
they are in agreement, and those issues on which they are not in agreement.
3.131 It is clearly desirable in the interests of reducing costs and delays in
litigation that the testimony of an expert be limited to that which is necessary.
Where expert witnesses from both sides are not in conflict over a particular
issue on which expertise is needed, it makes sense that both parties should
agree that one expert present the evidence, or that both experts come together
to prepare a joint report on areas of common agreement, so that the court is not
required to hear the same evidence twice. The possible structure of such a
procedure is discussed below in Chapter 5.
(f) Conflict of Interest
3.132 A related duty to the requirement to act independently and objectively
at all times is the duty to avoid a conflict of interest. This incorporates an
obligation on the expert to notify the parties and the court where there is any
potential conflict of interest, or where the expert feels that he or she is not totally
independent or does not appear independent, based on the principle that justice
should be both done and seen to be done.
3.133 Part 5 of the Expert Witness Directory of Ireland‘s Code of Conduct
outlines the requirement of independence, professional objectivity and
impartiality, and the duty to disclose any circumstances which might influence
the work of the expert. In this part, examples of such circumstances are
expressly mentioned as including;
(a) any directorship or controlling interest in any business in
competition with the client;
(b) any financial or other interest in goods or services (including
software) under dispute;

103
[1998] EWCA Civ 1176 (8 July 1998).

164
 (c) any personal relationship with any individual involved in the matter
(d) the existence but not the name of any other client of the expert
with competing interests.104
3.134 As mentioned above, as a result of Galvin v Murray,105 a person is
not prevented from acting as an expert witness simply due to the fact that they
have a pre-existing relationship with one of the parties to the action. However,
nowhere in that judgment is it expressly stated that where an expert is called
who is an employee of one of the parties, or who has some other pre-existing
relationship with one of the parties, they are under a duty to disclose this pre-
existing relationship.
3.135 As it is recognised in Galvin that such a relationship may have an
effect on the appropriate weight to be accorded to such an expert‘s testimony,106
it is clearly desirable that such a disclosure be compulsory. Therefore it may be
worthwhile introducing a mandatory requirement that all relevant pre-existing
relationships between potential experts and the parties to an action, or other
relevant individuals or associations bearing relevance on the case, be
disclosed.
3.136 The effect of a conflict of interest on the admissibility of expert
evidence was considered in England in Toth v Jarman.107 Here, the appellant
argued that the medical expert‘s involvement in the ‗Medical Defence Union‘
raised a conflict of interest between his duty of objectivity as an expert and his
interest in helping to defend a member of that organisation that would have
caused the judge to accord lesser weight to or reject his evidence.108
3.137 The court held that the presence of a conflict of interest does not
automatically disqualify an expert; the key question, which is to be found in The
Ikerian Reefer,109 is whether or not the evidence is independent. The paramount

104
The Expert Witness Directory of Ireland ―Code of Conduct; Expert Witnesses
Engaged by Solicitors‖ Available at; http://www.expertwitnessireland.info/.
105
[2000] IESC 78.
106
As Murphy J stated: ―The fact that an engineer is employed by one or other of the
parties may affect his independence with a consequent reduction in the weight to
be attached to his evidence but it could not deprive him of his status as an
expert.‖ [2000] IESC 78 at 85.
107
[2006] EWCA Civ 1028 (19 July 2006).
108
[2006] EWCA Civ 1028 (19 July 2006) at [77].
109
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The
Ikerian Reefer) [1993] 2 Lloyd‘s Rep 68.

165
duty owed by the expert to the court was also reiterated. Potter J however, went
on to state:
―However, while the expression of an independent opinion is a
necessary quality of expert evidence, it does not always follow that it
is sufficient condition in itself. Where an expert has a material or
significant conflict of interest, the court is likely to decline to act on his
evidence, or indeed to give permission for his evidence to be
adduced. This means it is important that a party who wishes to call
an expert with a potential conflict of interest should disclose details of
that conflict at as early a stage in proceedings as possible.‖110
3.138 The court rejected the contention that as no information about a
conflict of interest had been requested at trial, there was no obligation to
disclose it, finding that any material conflict of interest must be disclosed. 111
Regarding the appropriate time for disclosure of the existence of a possible
conflict of interest, the court found that the appropriate time is when the report
of the expert is first served on the other parties.112
3.139 Potter J acknowledged that in the absence of court guidance, it is
understandable that at the time of exchange of reports, a party may realise a
potential conflict of interest but be of the view that it is an immaterial one, and
therefore fail to disclose. However, he went on to hold that in all future cases
where this occurs the party should not take the course of non-disclosure, as it is
for the court, and not the parties to decide whether a conflict of interest is
material or not.113 This judgment gives clear guidance to experts regarding the
extent of their duties to disclose any potential conflict of interest. The Irish court
would do well to adopt a similar approach.
(g) Duty to Keep the Opinion within the Permitted Scope
3.140 There are four main elements to this duty:
(a) The expert witness is required to confine his or her opinion to
matters outside the scope of the expertise of the finder of fact.

110
[2006] EWCA Civ 1028 (19 July 2006) at [102].
111
[2006] EWCA Civ 1028 (19 July 2006) at [108].
112
[2006] EWCA Civ 1028 (19 July 2006) at [111].
113
[2006] EWCA Civ 1028 (19 July 2006) at [111] He also pointed out that the court
may take a different view to the party as to the existence of a material conflict of
interest which might lead the court to reject the expert‘s evidence and cited
Liverpool Roman Catholic Archdeacon Trustees Inc v Goldberg No 2 [2002] 1
WLR 237 in support of this.

166
 (b) The expert is required to keep his or her opinion within the
parameters of the area of his or her expertise.
(c) The expert must give an opinion only on the issues involved in the
case in question.
(d) The expert must not take the place of the finder of fact by reaching
conclusions or decisions based on his or her knowledge, but merely to impart
this knowledge to enable the finder of fact to reach their own conclusions.
3.141 This denotes that in giving evidence on their area of expertise
experts should not profess to give opinions about their entire profession but
should stay within the defined scope of their competence, a requirement which
corresponds with the reason for their appointment. 114 This requirement also
reveals the corollary duty of an expert to state clearly when an issue falls
outside their scope of expertise. It may be appropriate to require that where
necessary, and with the consent of the judge, the expert must take the advice of
another competent expert in order to answer the question beyond his
competence.
3.142 One of most important duties for an expert is to stay within the
permitted scope by not straying into issues that are within the scope of
knowledge of the finder of fact, or that are outside the parameters of his area of
expertise.
3.143 Indeed, rules relating to admissibility of expert evidence, such as the
Ultimate Issue rule, are largely drafted with a view to preventing an expert from
giving any additional evidence than that necessary. The dangers that can arise
where an expert witness purports to opine on an area in which they are not
proficient has been well demonstrated by a number of high profile cases
involving miscarriages of justice.
3.144 For example, in the above-mentioned R v Clark (Sally)115 one of the
expert witnesses was paediatrician Professor Roy Meadow, who was adduced
by the prosecution to testify about the two sudden and unexpected deaths of
infants from natural causes. Professor Meadow submitted in evidence a report
of a government research team on Sudden Infant Death (SID), which contained
statistics about the chances of SID occurring based on the presence of certain
relevant factors, and concluded that the chance of two SID deaths occurring in
the Clark family was highly remote.

114
See, for example, Rule 1 – 2) CNCEJ ―Regles de Deontologie de L‘Expert
Judiciaire‖ Available at; http://www.fncej.org/.
115
[2003] EWCA Crim 1020.

167
3.145 On appeal this evidence was criticised as misleading and that it
―grossly overstates the chances of two sudden deaths within the same
family.‖116 It was also pointed out that Professor Meadow may have made errors
in his statistical equations.117 Although Professor Meadow was a well respected
paediatrician, and would no doubt be considered an expert in that field, the
evidence he gave here strayed into the field of statistics, in which he was
unqualified, and which led to his miscalculation which ultimately resulted in the
miscarriage of justice. Clarke MR commented:
―Professor Meadow is not a statistician and had no relevant expertise
which entitled him to use the statistics in the way he did. I entirely
accept the point that he made a mistake which other non-statisticians
have made but that does not seem to me to exonerate him. He gave
the evidence as part of his expert evidence and, moreover, did so in
a colourful way which might well have been attractive to a jury
without expressly disclaiming any expertise in the field on an issue
the only possible relevance of which can have been (as stated
above) to support the prosecution's case that the children had both
died from unnatural causes. He knew that he had no such experience
and should have expressly disclaimed any.‖ 118

116
R v Clark (Sally) [2003] EWCA Crim 1020 at [178].
117
Professor Meadow came to the figure of one in 73 million by squaring the
statistical chance of one child dying from SID under certain factors as set out in
the report (1:8543), by itself (1:8543x8543), thus assuming that the two events
were to be considered as independent of each other, without taking account of
conditions specific to the Clark family. However, as explained by Collins J in the
later case of General Medical Council v Meadow [2006] EWHC 146 (Admin) (17
February 2006) ―As will be obvious, [Dr. Meadow‘s evidence] was based on the
extract from the CESDI study which I have already cited. It was a statement
based on a misunderstanding of the significance of the squaring. The squaring
was not intended to be a guide to the risk of recurrence. The figures given were
estimates based on a mathematical modelling and were not observed rates.
Since independence could not be assumed, the squaring was a statistically
invalid assumption and was intended to do no more than show that it produced in
truth an underestimate of the real risk. I am bound to say, having read Professor
Fleming's evidence (he was a witness before the FPP), I am far from clear why
the squaring exercise was included at all.‖ (at [37]).
118
General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006) at
[83].

168
(h) Duty to Instructing Party
3.146 Besides the overriding duty that is owed to the court, the expert also
owes a duty to act with reasonable care towards the instructing party. The
expert is required to clearly consult with the instructing party prior to
appointment to ensure all conditions of appointment are agreed, and that the
area of expertise and the opinion sought are clarified by both parties.
3.147 A question for consideration is the possible inclusion under this
section of a legally binding duty to ensure that, for the protection of his client,
the expert maintains proper insurance for an adequate indemnity, as suggested
in the Code published by Euroexpert.119 The extent of the liability owed by an
expert towards their instructing party will be discussed below.
3.148 Furthermore, once an expert has undertaken to act as an expert
witness, they have a duty to carry out the necessary tasks to see out the role,
this includes being available, as far as is reasonably possible, to testify in court
about the contents of an expert report.
3.149 The extent of the duty owed by the expert to the instructing party to
give evidence in court was examined in England in Re N.120 Here the defendant,
a forensic medical examiner, was hired as an expert witness on behalf of the
prosecution to testify about injuries suffered by the plaintiff in an alleged rape
case. The defendant examined the plaintiff and recorded her findings in a
witness statement; however, at the time of the trial she was unavailable for
questioning as she had gone on holiday and the defendant was held to be in
contempt of court and a fine was imposed.
3.150 However, the plaintiff then brought a further civil action against the
defendant claiming that the failure of the defendant to appear in court led to the
case collapsing, which the plaintiff further alleged had the effect of exacerbating
the post traumatic stress disorder she had developed as a result of the attack.
The plaintiff argued that on tort principles
―…the Defendant owed the Plaintiff a duty of care to take all
reasonable steps to provide evidence of that examination in
furtherance of the contemplated prosecution and, in particular, to
attend the trial of Mr [G] as a prosecution witness when required.‖ 121
3.151 In this case, the defendant appealed against the previous refusal of
the court to strike out the plaintiff‘s claim as disclosing no reasonable cause of

119
Euroexpert ―Code of Practice‖ Available at: http://www.euroexpert.de/en/Code-of-
practice/341.
120
[1999] EWCA Civ 1452 (20 May 1999).
121
Re N [1999] EWCA Civ 1452 (20 May 1999) at [9].

169
action. The Court allowed the defendant‘s appeal finding that as a result of the
witness‘ immunity from suit the plaintiff had no cause of action, and held that the
argument that the defendant owed a duty of care to the plaintiff to take all
reasonable steps to attend court and to give evidence was ‗wholly
misconceived.‘
3.152 The court also made the point here that the immunity from suit of an
expert is motivated by the fact that the expert‘s duty to the court in giving
evidence may be entirely in conflict with a party‘s interests, 122 thus reiterating
that while a duty of reasonable care is owed to the party, the duty to the court
remains paramount.
3.153 However, Clarke LJ did point out that where duty to attend court was
established, for example by contract between an expert and a party to
proceedings, this decision should not represent a bar to recovery of damages in
such a case.
3.154 It is also interesting to note that since this decision the Rule 35 of the
Civil Procedure Rules has been interpreted as imposing an obligation on an
expert in civil cases to attend court if called upon to do so and therefore to
ensure that those instructing them are aware dates to be avoided and to take all
reasonable steps to be available.123
(i) Duty to Take Reasonable Care in Creating Expert Report
3.155 When giving an expert opinion, the expert will be required to set out
the opinion in a written report prior to the trial. There is a duty on the expert to
exercise reasonable care and skill in the creation of this report. This duty
requires the expert to comply with the formalities involved in the creation of the
report, including a written declaration of veracity in relation to the contents of the
report.
3.156 As can be seen below, the New South Wales Law Reform
Commission recommended that provisions relating to the exact contents

122
Stuart-Smith LJ stated in Re N [1999] EWCA Civ 1452 (20 May 1999) at [17]: ―Mr
Nicol also submitted that there was no potential conflict between the duties owed
by the Defendant to the police or CPS and that to the Plaintiff, to attend court to
give evidence. That may be so, if one restricts the ambit of the duty to that sole
obligation. I have already indicated that in my view it is not permissible to do so. It
is quite apparent that the defendant‘s duty to the police, CPS and indeed the
Court in giving evidence may be entirely in conflict with a complainant‘s interests.
Hence the need for the immunity‖.
123
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 19.1.

170
necessary to be included in the expert‘s reports should not be set out in a code
of conduct for experts, as it would be better to set out a separate guidance note
outlining procedural issues that must be taken on board by experts. 124
3.157 This recommendation has its merits, in that having the duties listed
separately to the procedural requirements would help to explain clearly to the
expert witnesses the exact extent of their role.
(j) Duty to Sign Expert’s Declaration
3.158 Having a statement inserted into any code of guidance requiring
experts to sign a declaration stating they have read and are aware of their
duties, and requiring them to swear an intention to conform with their duties, will
it is submitted, go a long way towards ensuring that expert witnesses are aware
of the scope and parameters of their role and function.
3.159 Great emphasis is placed in other jurisdictions on the importance of
the Code of Conduct, to the effect that only experts who proceed in accordance
with the norms of conduct found in the code should be relied upon and may be
admitted into evidence.
3.160 For example, in New South Wales, in the decision of Commonwealth
Development Bank of Australia Pty Ltd v Cassegrain 125 Einstein J refused to
allow an expert to testify where he had not been given a copy of the Expert
Witness Code of Conduct by the instructing party, which meant as a result that
he had failed to be bound by the Code in the giving of his statement, as
required by Part 36 Rule 13C of the NSW Supreme Court Rules. 126 Einstein J
added:
―To my mind, considerable significance attaches to enforcing strict
compliance in the expert witness provisions now found in part 36 rule
13C. Questions of the significance of the opinions of experts have
been mooted over a much extended period of time and the…Expert
Witness Code Of Conduct was promulgated with the clear intent that
only reports by experts who have proceeded in accordance with the
stated norms of conduct, should be relied upon and may be admitted

124
NSW Law Reform Commission ―Report 109 – Expert Witnesses‖ (June 2005) at
9.17.
125
[2002] NSWSC 980.
126
These rules have now been replaced by the Uniform Civil Procedure Rules 2005.
This, however, carries the Code of Conduct over into law, and UCPR rule 31.23
provides that an expert‘s report cannot be given in evidence, nor can an expert
give oral evidence until the court is satisfied that the expert has read the code of
conduct set out in Schedule 7 of the UCPR and has agreed to be bound by it.

171
 into evidence. The significance of the Code Of Conduct emerges
clearly from the whole of the Code as well as from the ‗general duty
to the court‘ section of schedule K as well as from the stipulations as
to the form of expert‘s reports.‖127
3.161 The expert‘s declaration was also considered in some detail by the
English Court of Appeal in Toth v Jarman.128 The Court recommended that the
Civil Procedure Rules Committee ought to consider extending the requirements
in the declaration to ensure that any conflict of interest is avoided by requiring a
declaration that all matters capable of affecting the expert‘s opinion have been
disclosed as part of the expert‘s declaration:
―In our judgment, the Civil Procedure Rules Committee should
consider extending the requirement for an expert's declaration at the
end of his report. Its present form is directed to ensuring that the
contents of the report represent the independent and unvarnished
opinion of the expert making the report. But, as we have explained
above, there is another side to independence. The expert should not
leave undisclosed any conflict of interest which might bring into
question the suitability of his evidence as the basis for the court's
decision. The conflict of interest could be of any kind, including a
financial interest, a personal connection, or an obligation, for
example, as a member or officer of some other body. But ultimately,
the question of what conflicts of interest fall within this description is a
question for the court, taking into account all the circumstances of the
case.‖129
3.162 It is at least arguable that if any similar Code is promulgated in this
jurisdiction, in the interests of furthering its objectives and increasing the
standard and quality of experts and expert testimony, a similarly strict approach
should be taken to enforcement.
3.163 Furthermore, it could be argued that, apart from any fear of
sanctions, requiring an expert to make an express declaration of intent to abide
by their duties may have a significant psychological impact on the content of
their evidence, and may make them act in a more independent manner.
3.164 One could argue that this function is already served by the
requirement of all witnesses to swear an oath when testifying. The expert

127
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002]
NSWSC 980 at [9].
128
[2006] EWCA Civ 1028, [2006] All ER (D) 271 (Jul).
129
Toth v Jarman [2006] EWCA Civ 1028, [2006] All ER (D) 271 (Jul) at [199].

172
report, however, will have been created far in advance of the giving of testimony
in court. Thus, a requirement to sign a declaration at the end of an expert report
should ensure that the expert‘s duty is at the forefront of their mind from the
outset.
3.165 The Commission now turns to examine the way in which the duties of
experts have been treated in other jurisdictions.

D Duties of Expert Witnesses Recognised in Other Jurisdictions

3.166 Although the decision in the Ikerian Reefer remains the principal
source of reference for identification of the duties owed by expert witnesses,
other jurisdictions have expanded on this by formulating their own list of duties
that are owed by expert witnesses and which are binding on experts to varying
degrees.
(1) England
3.167 Extensive consideration has and continues to be given throughout
the years in the English courts on the precise and evolving role and duties of an
expert witness.
(i) Civil Cases
3.168 In civil cases, the Ikerian Reefer decision has been replaced by the
radical reforms which came about arising from Lord Woolf‘s Access to Justice
reports in 1995 and 1996,130 which sought to address growing criticisms of
certain aspects of the civil justice system in England. In his Interim Report Lord
Woolfidentified the system of expert evidence as being one of the two largest
generators of unnecessary cost and delays in civil litigation, the other one being
the system of discovery.131
(I) The Civil Procedure Rules
3.169 The recommendations in the Final Report led to a complete overhaul
of the Civil Justice System through the introduction of the Civil Procedure Rules
(CPR), which radically changed the procedures for admission of expert
evidence in civil cases.
3.170 The Rules replace and reform the Rules of the Supreme Court and
the County Court Rules, however, CPR 1.1(1) states that the Rules are a ―new
procedural code‖ and the courts have taken the view that references to their
predecessors and the line of authority built up by these should not be

130
See: Lord Woolf, Access to Justice (Interim Report, HMSO, London, 1995) and
Lord Woolf, Access to Justice (Final Report, HMSO, London, 1996).
131
Lord Woolf, Access to Justice (Interim Report, HMSO, London, 1995) at Ch. 23.1.

173
encouraged,132 except in limited circumstances where the previous rules have
not been amended by the CPR, and thus retain a persuasive force.133
(II) Part 35 Civil Procedure Rules
3.171 Part 35 of the CPR is entitled ‗Experts and Assessors‘ and aims to
set out the protocol for the use of experts in civil litigation. The CPR must also
be read in the light of its supplementing practice directions, and the Practice
Direction to Part 35 (PD35) significantly expands the provisions of Part 35 to
explain more clearly the extent of the duties that are imposed by the CPR rules
on experts in civil claims.
3.172 In keeping with the overriding objective behind the introduction of the
rules, namely enabling the court to deal with cases justly by reducing costs and
delays,134 CPR r.35.1 states that expert evidence adduced in court is to be
limited to that which is reasonably necessary to resolve the proceedings, and
under CPR r. 35.4 the court has the power to restrict expert evidence where it
so wishes.135
3.173 In his Final Report, Lord Woolf stated that the overall objective of the
CPR in the context of experts should be to foster an approach which
emphasises the expert‘s paramount duty to the court, not to the party who
retains him,136 an objective that was duly adopted in CPR r.35.3. According to

132
In Vinos v Marks & Spencers plc [2001] 3 All ER 784 May LJ stated: ―The Civil
Procedure Rules are a new procedural code, and the question for this court in this
case concerns the interpretation and application of the relevant provisions of the
new procedural code as they stand untrammelled by the weight of authority that
accumulated under the former Rules.‖ See also the comments of Lord Woolf in
Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926: ―The whole purpose of making
the CPR a self-contained code was to send the message which now generally
applies. Earlier authorities are no longer generally of any relevance once the CPR
applies.‖
133
See for example Garratt v Saxby [2004] EWCA 341 at 18: ―Although it has been
said on a number of occasions that decisions on pre-CPR procedural rules are
not binding for the purpose of interpreting the CPR, there are circumstances in
which they may be of considerable persuasive force.‖
134
See CPR r.1.1.
135
CPR r.35.1; CPR r. 35.4.
136
Lord Woolf Access to Justice (Final Report, HMSO 1996) Ch. 13.12.

174
PD35, this imposes a duty on an expert to help the court on matters within his
or her own expertise.137
3.174 PD 35 also explains that the duty imposed by CPR r. 35.3 requires
the expert‘s evidence to be independent, and requires the expert to provide an
unbiased, impartial opinion to assist the court, and not to assume the role of the
advocate.138 The overriding duty to the court was further explained in Mutch v
Allen:139
―This new regime is designed to ensure that experts no longer serve
the exclusive interest of those who retain them, but rather contribute
to a just disposal of disputes by making their expertise available to
all. The overriding objective requires that the court be provided with
all relevant matter in the most cost effective and expeditious way.
This policy is exemplified by provisions such as rule 35.11 which
allows one party to use an expert's report disclosed by the other
party even if that other party has decided not to rely on it himself.‖
3.175 In order to fulfil their duty under this section, the expert is also
required to consider all relevant facts, ―including those which might detract from
his opinion,‖140 as well as being required to make it clear when an issue falls
outside his or her area or expertise or when he or she is unable to reach a
definitive opinion due, for example, to insufficient evidence. 141 The expert is also
expected to communicate without delay any material change of opinion to both
parties and, where necessary, to the court.142
3.176 Part 35 continues by outlining some of the other duties or tasks that
are required to be carried out by expert witnesses in civil litigation. CPR r. 35.5
sets out that have experts are required to give their expert evidence in a written
report unless the court directs otherwise.143 CPR r. 35.10, supplemented by part

137
Civil Procedure Rules ―Practice Direction to supplement CPR Part 35 Experts and
Assessors‖ at 1.1.
138
Civil Procedure Rules ―Practice Direction to supplement CPR Part 35 Experts and
Assessors‖ at 1.2-3.
139
[2001] 2 C.P.L.R. at 24.
140
Civil Procedure Rules ―Practice Direction to supplement CPR Part 35 Experts and
Assessors‖ at 1.4.
141
Civil Procedure Rules ―Practice Direction to supplement CPR Part 35 Experts and
Assessors‖ at 1.5.
142
Civil Procedure Rules ―Practice Direction to supplement CPR Part 35 Experts and
Assessors‖ at 1.6.
143
CPR r. 35.5.

175
2 of PD35, outlines the necessary requirements for the contents of this written
report, amongst these a requirement that an expert sign a statement that he
understands and has complied with his duty to the court, 144 along with signing a
‗statement of truth‘, the form of which is set out in PD35. 145 CPR r. 35.6 states
that experts may have questions put to them about their report by the other
party or a single joint expert (in accordance CPR r. 35.7), 146 and outlines the
extent of the duty of the expert in this regard and the consequences of failure to
answer a question.147
(III) Civil Justice Council’s Guidance Protocol
3.177 The Civil Justice Council of the Department of Constitutional Affairs
also published a Guidance Protocol for experts in civil cases which aimed to
reflect, but not replace, CPR r.35 and its PD35, and to provide further guidance
for experts in relation to compliance and interpretation of the CPR rules. 148
3.178 This Protocol contains a section dedicated to the Duties of Experts. 149
The section reiterates the overriding duty owed by experts to the court, but also
states that experts ―owe a duty to exercise reasonable skill and care to those

144
CPR r. 35.10.
145
Civil Procedure Rules ―Practice Direction to supplement CPR Part 35 Experts and
Assessors‖ at 2.4 states ―The form of the state of truth is as follows: I confirm that
insofar as the facts stated in my report are within my own knowledge I have made
clear which they are and I believe them to be true, and that the opinions I have
expressed represent my true and complete professional opinion.‖
146
CPR r. 35.7 provides that the court can direct that evidence in a particular case is
to be given by a single joint expert where two or more parties to the case wish to
give evidence on a particular issue. The court is given the power under CPR r.
35.7.3 to decide how such experts are to be appointed. CPR r. 35.8 sets out the
instructions that can be given by the court prior to the appointment of a single
joint expert.
147
CPR r. 36.1 (a) & (b) – The reason behind this procedure is explained in Civil
Justice Council ―Protocol for the Instruction of Experts to Give Evidence in Civil
Claims‖ (June 2005) at 16 as being designed to facilitate the clarification of
opinions and issues after expert‘s reports have been served.
148
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 2.1
149
See Part 4 ―Duties of Experts‖ in Civil Justice Council ―Protocol for the Instruction
of Experts to Give Evidence in Civil Claims‖ (June 2005).

176
instructing them, and to comply with any relevant professional code of ethics.‖ 150
The protocol goes on to state that experts are also obliged to ensure that they
assist the court to enable them to promote the overriding objective of the CPR,
namely, to deal with cases justly. 151
3.179 The protocol also reiterates the duty of experts, as recognised in
PD35, to provide independent opinions, unaffected by the pressures of
litigation, and to refrain from becoming the instructing party‘s advocate.152
Furthermore, Part 4.4 of the protocol is significant as it develops the scope of
the evidence that can be given by an expert by underlining the duties to take
into account all material facts,153 and to confine the opinion ―to matters which
are material to the dispute between the parties and…matters which lie within
their expertise,‖ to make it clear where an issue falls outside their area of
expertise,154 and inform the court of any change in their opinions on a material
matter.155
3.180 Interestingly, the Protocol has a section specifically dedicated to the
conduct and duties of Single Joint Experts appointed by the court under CPR r.
35.7.156 It is explained that single joint experts are obliged to keep all instructing
parties informed of any material steps taken. It is once again reiterated that they
have an overriding duty to the court, but as they are all parties‘ appointed
experts they owe an equal duty to all parties to maintain independent,

150
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 4.1.
151
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 4.2.
152
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 4.3.
153
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 4.5.
154
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 4.4.
155
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 4.6.
156
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 17.

177
impartiality and transparency,157 and to serve their reports simultaneously on all
parties.158
(IV) Judicial Reformulation of Ikerian Reefer Principles
3.181 Most recently, Toulmin J in Anglo Group Plc v Winther Brown & Co
Ltd and BML (Office Computers) Ltd159 stated that the guidelines set out by
Cresswell J in The Ikerian Reefer in 1990 need to be considered and
reformulated in light of the introduction of CPR r 35. He restated and extended
the rules in following terms;
―1. An expert witness should at all stages in the procedure, on the
basis of the evidence as he understands it, provide independent
assistance to the court and the parties by way of objective unbiased
opinion in relation to matters within his expertise. This applies as
much to the initial meetings of experts as to evidence at trial. An
expert witness should never assume the role of an advocate.
2. The expert's evidence should normally be confined to technical
matters on which the court will be assisted by receiving an
explanation, or to evidence of common professional practice. The
expert witness should not give evidence or opinions as to what the
expert himself would have done in similar circumstances or otherwise
seek to usurp the role of the judge.
3. He should co-operate with the expert of the other party or parties
in attempting to narrow the technical issues in dispute at the earliest
possible stage of the procedure and to eliminate or place in context
any peripheral issues. He should co-operate with the other expert(s)
in attending without prejudice meetings as necessary and in seeking
to find areas of agreement and to define precisely arrears of
disagreement to be set out in the joint statement of experts ordered
by the court.
4. The expert evidence presented to the court should be, and be
seen to be, the independent product of the expert uninfluenced as to
form or content by the exigencies of the litigation.

157
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 17.11.
158
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 17.14.
159
[2000] EWHC Technology 127 (8th March, 2000)

178
 5. An expert witness should state the facts or assumptions upon
which his opinion is based. He should not omit to consider material
facts which could detract from his concluded opinion.
6. An expert witness should make it clear when a particular question
or issue falls outside his expertise.
7. Where an expert is of the opinion that his conclusions are based
on inadequate factual information he should say so explicitly.
8. An expert should be ready to reconsider his opinion, and if
appropriate, to change his mind when he has received new
information or has considered the opinion of the other expert. He
should do so at the earliest opportunity.‖
(ii) Criminal Cases
(I) Judicial Commentary
3.182 In criminal cases, the duties of expert witnesses in England are still
governed by principles laid down at common law, most notably in the Ikerian
Reefer, and the duties enumerated in that decision have been approved in
many later decisions, both civil and criminal, for example Stanton v
Callaghan160, Franks & Faith (t/a Ground Rent Securities) v Towse,161 R v
Puaca162 and McTear v Imperial Tobacco.163
(II) Criminal Procedure Rules
3.183 Furthermore, in addition to these common law guidelines, the
Criminal Procedure Rules, which came into force in April 2005, also contain
provisions relating to expert testimony. These Rules sought to consolidate the
existing rules governing the practice and procedure of the criminal courts, which
up until that point had been scattered amongst almost 50 sets of rules. 164 The
rules are the first step towards to creation of a comprehensive code of criminal

160
[1992] Q.B. 936, CA.
161
[2000] EWLands LRA_2_1999.
162
[2005] EWCA Crim 3001.
163
[2005] ScotCS CSOH_69 .
164
The English Courts Act 2003 sets out the provisions for the making of Criminal
Procedure Rules, the creation of the Committee and the making of practice which
is responsible for making, updating and reviewing the rules on a regular basis.
(see ―Explanatory Memorandum to the Criminal Procedure Rules 2005 (2005 No.
384 L.4))‖.

179
procedure as recommended by Auld J in 2001 in the Review of the Criminal
Courts.165
3.184 The Criminal Procedure Rules largely mirror the contents and
objectives of the Civil Procedure Rules, in that they seek to ensure that cases
are heard fairly, justly and efficiently. Rule 24 of the Rules deal with expert
evidence. The provisions in Rule 24 largely mirror those contained in Rule 35 of
the Civil Procedure Rules, and provisions relating the overriding duty owed by
experts to the court, the requisite contents of an expert‘s report, pre-trial
discussions between experts and the power of the court to direct that evidence
be given by a single joint expert are similar or the same as their counterparts in
CPR r. 35.166
(iii) Professional Bodies
3.185 Many of the professional bodies that train and educate expert
witnesses (discussed below) have also created their own Codes of Guidance
for experts. For example, the Academy of Experts 167 and the Expert Witness
Institute168 have set out a joint Code of Guidance for Experts which was
approved by Master of the Rolls & Chairman of the Civil Justice Committee and
which applies to members of both associations.169 Other bodies governing the
conduct of specific professions have also set out their own codes of conducts
for professionals within the discipline seeking to act as expert witnesses.170

165
See Auld A Review of the Criminal Courts of England and Wales by The Right
Honourable Lord Justice Auld (September 2001) at Ch 2.2.
166
Further guidance on the duties expected of experts witnesses instructed by the
prosecution in criminal investigations can also be found in the Crown Prosecution
Service‘s Disclosure Manual Annex K ―Experts' evidence and unused material -
Guidance Booklet for Experts‖ Available at;
http://www.cps.gov.uk/legal/section20/chapter_a_annex_k.html.
167
See; http://www.academy-experts.org/
168
See; http://www.ewi.org.uk/
169
See; EWI & The Academy of Experts ―Code of Practice for Experts‖ (22 June
2005).
170
See for example the RICS Expert Witness Registration Scheme, a voluntary
scheme which sets standards for chartered surveyors who act as expert
witnesses in the UK. See http://www.rics.org/RICSservices/Findasurveyor/
Findanexpertwitness/. Another example is the Council for the Registration of
Forensic Practitioners, an independent regulatory body established to improve
the standards of forensic practitioners in the UK. The CRFP‘s Code of Conduct
sets out the standards to which a forensic practitioner must adhere in order to be

180
3.186 Much of the provisions in the Codes set out by these professional
bodies reflect the contents of the guidance set out in the Ikerian Reefer decision
or in the relevant provisions of the civil or criminal procedure rules, all placing
great emphasis on the overriding duty owed by the expert to the court and the
necessity for honesty, integrity, objectivity and impartiality at all times.
(2) Australia
3.187 In Australia, Section 79 of the Uniform Evidence Act 1995 (Cth),
which has been followed by parallel statutes in several jurisdictions,171 contains
the main provision allowing for the admissibility of expert evidence. 172 However,
this provision merely states that the opinion of a person with specialist
knowledge is an accepted exception to the rule against opinion evidence, and
the Act does not elaborate on how this exception is to operate in practice, and is
silent on the duties required of experts.
(a) The Federal Court
3.188 The Federal Court of Australia also adopted a Practice Direction for
expert witnesses, which largely emulates the guidelines set out in the CPR
Rules and the Ikerian Reefer, and in fact, it expressly cites these as authorities
for the Practice Direction.173 The explanatory memorandum to this Practice
Direction states that it aims to assist expert witnesses in understanding what is
expected of them in court, and to ensure that experts avoid being perceived as
lacking objectivity, or of having coloured their evidence in favour of the party
calling them.
3.189 Like the CPR rules, part one of the Practice Direction commences by
stating that experts have a general duty to the court which is paramount to the

registered with the body. Interestingly, this Code makes it expressly clear that a
forensic practitioner cannot discriminate on grounds of race, beliefs, gender,
language, sexual orientation, social status, age, lifestyle or political persuasion.
(See; http://www.crfp.org.uk/standards/setting/code/code.htm)
171
For example New South Wales, Tasmania and Norfolk Island have all passed
mirror legislation to the Evidence Act 1995, with other jurisdictions, such as
Victoria, in the process of considering similar moves.
172
Section 79 provides: ―If a person has specialised knowledge based on the
person‘s training, study or experience, the opinion rule does not apply to evidence
of an opinion of that person that is wholly or substantially based on that
knowledge.‖
173
The Federal Court of Australia ―Guidelines for Expert Witnesses in Proceedings in
the Federal Court of Australia‖ (Version 5, 6 June 2007) Available at:
http://www.fedcourt.gov.au/how/prac_direction.html, at fn. 2, 5 & 6.

181
duty owed to the person retaining the expert. In 1.2 it is stated that an expert
does not become a party‘s advocate ―even when giving testimony that is
necessarily rather than inferential.‖
3.190 Furthermore, many of the individual states within Australia have set
out their own codes of conduct governing the duties of experts within those
states.
(b) New South Wales
3.191 For example, in New South Wales in 2005, the Uniform Civil
Procedure Rules, made under section 9 of the Civil Procedure Act 2005, were
enacted, Schedule 7 of which consists of a code of conduct for expert
witnesses.174 This code was greatly influenced by common law principles, and
imports many of the guidelines set out in the Ikerian Reefer and the Civil
Procedure Rules in England, including the general principle that the expert
witness must not become a party‘s advocate and that their evidence must be
independent and impartial.
3.192 Like the Civil and Criminal Procedure Rules, the Code also contains
a section on the requisite contents of the expert‘s report, however, interestingly,
the New South Wales Law Reform Commission has recommended that this part
of the code be amended to delete the provisions dealing with matters of form
rather than experts‘ duties as, in the view of the Commission, ―the force of the
code of conduct should not be diluted with provisions which are purely
procedural in nature.‖175 The New South Wales Commission is of the opinion
that it would be preferable to include such procedural provisions in a rule or
practice note specifically dealing with procedural matters concerning expert
witnesses.176
(c) Queensland
3.193 Similarly in Queensland, the use of experts is governed by the
Uniform Civil Procedure Rules 1999 (UCPR) rule 212(2) and rules 423 to 429,
as amended. These Rules, unlike the NSW Rules, do not have a code of
conduct for experts, and the rules are largely procedural in nature, however,

174
The predecessor to these rules; the New South Wales Supreme Court Rules,
also provided a Code of Conduct for experts engaged in providing an expert
report or giving expert evidence (Supreme Court Rules 1970 (NSW) Part 36 rules
13C f.f.
175
NSW Law Reform Commission ―Report 109 – Expert Witnesses‖ (June 2005) at
9.15.
176
NSW Law Reform Commission ―Report 109 – Expert Witnesses‖ (June 2005) at
9.17.

182
they do make reference to the paramount duty owed to the court, and the
procedural requirements are designed to reflect the obligations to which an
expert is expected to adhere. For example, UCPR r 426 requires the expert
report to be addressed to court and signed by the expert, a requirement that is
designed to highlight and reflect the expert‘s overarching duty to the court. 177
(d) Australian Capital Territory
3.194 In the Australian Capital Territory a major overhaul of the court‘s
system took place with the introduction of the Court Procedure Rules 2006.
These were introduced to modernise and consolidate the procedural rules
governing the ACT Supreme Court and Magistrates Court.178
3.195 Part 2.12 of the Rules governs the giving of expert evidence. Rule
1202 provides that any individual wishing to act as an expert witness must give
written agreement to be bound by the Code of Conduct set out in Schedule 1 of
the Rules.
3.196 This Code of Conduct incorporates the expert witness code of
conduct that was previously in a practice direction, with some additional
provisions from Queensland and New South Wales. It begins by referring to the
overriding duty owed to the court before setting out the required format for the
expert reports. The fourth and final part of the Code refers to the capacity of the
court to convene a conference between expert witnesses and sets out the
provisions relating to such conferences.
3.197 It can be argued that this Code of Conduct is not really a Code of
Conduct at all as it does not set out guidelines for experts on how to act while
giving evidence but instead focuses on the procedural requirements and rules
applicable to experts.
(e) Professional Bodies
3.198 Furthermore, as in England, many professional bodies in Australia
whose members may be called upon to act as expert witnesses have also set
out Codes to give guidelines to experts. For example, the Australian Council of
Professions, a national organisation which aims to promote professionalism and
ethical practices within its member professions, adopted a guidance paper on

177
Wilson J ―The New Expert Witness Rules‖ Breakfast Address to Australian
Insurance Law Association Brisbane Club (28 October 2004).
178
See Explanatory Statement to the Court Procedure Rules 2006 SL2006-29
Available at:
http://www.courts.act.gov.au/supreme/content/pdfs/Ct%20Procedures%20Rules
%202006%20Explanatory%20Statement.pdf.

183
the role and duties of an expert witness in litigation to which its members are
required to conform when giving expert evidence. 179
(3) Euroexpert
3.199 Euroexpert is a European-wide organisation set up by a number of
expert witness professional bodies including The Academy of Experts in
England and The Fédération (now Conseil) Nationale des Compagnies
d'Experts Judiciaires (FNCEJ) in France. The organisation aims to promote
common professional standards and cross-frontier cooperation amongst experts
across Europe, and to provide a forum for experts and a point of contact
between experts and the European Union.180
3.200 Euroexpert has also set out its own Code of Practice for its members,
which contains the minimum standards that must be maintained. 181 This Code is
phrased in a more general format than the other Codes from Australia and
England. This is probably due to the fact that Euroexpert is composed of
members from both common and civil law jurisdictions, so some duties may not
translate across well between different systems of law, and different systems
may place emphasis or require additional duties than others.182However, most
of the Euroexpert member countries are signatories of the European
Convention on Human Rights, and therefore the Euroexpert code has been
drafted within the context of conforming with Article 6 of the ECHR and the
Right to a Fair Trial.
3.201 The code is short, composed of just five provisions, which are largely
focused on ensuring a high standard of expert witness and the protection of the

179
See Professions Australia ―Role and Duties of an Expert Witness in Litigation‖
(1998) Available at: http://www.professions.com.au/index.cfm?paraID=61. See
also The Australian and New Zealand Forensic Science Society ‗Code of Ethics‖
which sets down what is expected of forensic practitioners in giving evidence,
giving results and providing evidence in court. (see ANZFSS ―Code of Ethics‖
Available at: http://www.anzfss.org.au/code_of_ethics.htm).
180
See; Euroexpert – The Organisation for European Expert Associations Available
at; http://www.euroexpert.de/en/About-us/338.
181
Euroexpert ―Code of Practice‖ Available at: http://www.euroexpert.de/en/Code-of-
practice/341.
182
This is recognized by Euroexpert in the Code itself; ―It is recognized that there are
different systems of law and many jurisdictions in Europe, any of which may
impose additional duties and responsibilities which must be complied with by the
Expert. (See Euroexpert ―Code of Practice‖ Available at:
http://www.euroexpert.de/en/Code-of-practice/341).

184
client. Considerable emphasis is placed in these guidelines on full disclosure of
potential conflicts of interest, impartiality, independence, confidentiality, and
maintaining a high quality of work. Interestingly, the code also requires the
expert, for the protection of his client, to ensure that proper insurance with a
reputable insurer is maintained for an adequate indemnity.
3.202 In a comprehensive AGIS report created in 2007, where Euroexpert
surveyed expert practice in 12 European Union Members states, the common
denominator of all contributing member states was an acknowledgment of the
need to impose a Code of Practice, based on conditions of objectivity,
independence, impartiality and competence, on expert witnesses. 183
(4) France
3.203 In France, a civil law system applies and experts are appointed not
by the parties, but by the court from a set list, which means that he role, and
therefore the duties, of the expert are somewhat different. However the duties
that have been identified by the principal representative body in France, the
National Council of Experts in Justice184 remain worthy of note.
3.204 The Euroexpert Code of Conduct referred to above was largely
modelled on the Code of Conduct of the French National Council185 but the
Council‘s Code is significantly more detailed. Membership of the Council implies
an undertaking to respect the Code, which is a considerably detailed document,
with a far greater number of duties listed than those in the Ikerian Reefer, the
Civil or Criminal Procedures, or in any of the other Codes of Conduct discussed
above.
3.205 The French National Council code is interestingly as it is structured
under separate headings for the personal duties of the expert (Part I), the duties
of the expert towards judges (Part II), the duties of the expert towards the
parties (Part III), the duties of the expert towards his colleagues (Part IV) and
the duties owed by experts engaged in private consultation with the parties
(Part V).
3.206 As already mentioned, in France, the experts are appointed not by
the parties, but by the court from a set list, therefore many of the duties set out

183
Conseil Nationale des Compagnies d‘Experts de Justice ―Report: Access to
Judicial Expertise in Criminal Matters Implying More Than One Member State,
Especially in Serious Cases and Organised Crime‖ (AGIS, June 2007) Available
at: http://www.euroexpert.de/sixcms/media.php/61/Report-En-Anglais.pdf.
184
See: http://www.fncej.org/.
185
CNCEJ ―Regles de Deontologie de L‘Expert Judiciaire‖ Available at;
http://www.fncej.org/.

185
in this code, particularly those owed to the judge and the parties, may not be
relevant to this jurisdiction. Furthermore, many of the duties in this code reflect
those that can be seen as standard in many of the other guidance provisions
discussed above.
3.207 However, some of the duties listed in this code that have not be listed
in other guidance codes are worthy of note. For example, Part I (2) goes some
way towards defining an expert, and stresses the point that experts do not
practice as a profession, ―but within the defined limits of their competence, an
activity corresponding to the mission for which they are appointed.‖ Also
interesting is Part I (5), which requires the expert ―to maintain the technical and
procedural understanding necessary for the satisfactory accomplishment of his
activities as an expert.‖
(5) Ireland
3.208 As mentioned earlier, in sharp contrast with the developments in
other common law jurisdictions, there is lack of legislative guidance in this
jurisdiction regarding the extent of the duties owed by expert witnesses coming
before the Irish courts in both civil and criminal cases. However, many of those
duties discussed above will evidently apply, and although the Ikerian Reefer has
not been expressly endorsed in the Irish courts, it can be argued that this
decision represents a good summary of the principal duties and responsibilities
that apply to expert witnesses in this jurisdiction.
(a) Judicial Commentary on Expert’s Duties
3.209 In a number of judicial review proceedings where delay was raised as
a bar to prosecutions for alleged of sexual abuse, the courts have discussed
and developed the requisite standard and nature of the evidence expected from
expert witnesses. In these cases, it has been repeatedly held that there is an
obligation on all professional witnesses to make thorough investigations of all
surrounding facts in order to give a completely objective and unbiased opinion.
3.210 In Fitzpatrick v DPP186 an expert witness was put forward by the DPP
in order to explain, from a psychologist‘s point of view, the reasons for the delay
between the alleged abuse and the complainants filing a complaint. McCracken
J. ruled that he would place little weight on this evidence, based on the ―quite
astonishing‖ fact that the witness had failed to mention the abuse of the
complainants by family members and the potential psychological effects of this.
He stated:
―It is my strongly held view that where a witness purports to give
evidence in a professional capacity as an expert witness, he owes a

186
High Court, 5 December 1997.

186
 duty to ascertain all the surrounding facts and give that evidence in
the context of those facts, whether they support the proposition he is
being asked to put forward or not.‖ 187
3.211 Similarly, in AW v DPP,188 which involved the same expert that had
been criticised in Fitzpatrick, Kearns J pointed out that nothing in the expert‘s
report provided any explanation or reliable evidence as to why one of the two
complainants could not have come forward at an earlier stage to make her
complaint while in the case of a second complainant she married a member of
the Garda Síochána.
3.212 Kearns J concluded that the expert ―fell down to a significant degree‖
and ―indeed to such an extent that matters put to him in cross-examination
overshadow his entire report.‖189 He criticised the expert‘s report in that;
―Where and when requested to carry out a psychological
assessment, it is in my view incumbent upon a psychologist to
discharge such a function, in detail and depth, even if his brief is
mainly to inquire into factors explaining delay. It is not sufficient, in
my view, to set out a list of general principles relating to complaints of
this nature and then to attach these to a particular complainant
without some understanding of the psychological make-up of the
individual in question which would suggest whether these general
principles, or some of them, were particularly apt or appropriate, or
even perhaps irrelevant to the particular complainant.‖ 190
3.213 Similar criticisms were also expressed by the Supreme Court in JOC
v DPP.191 Here Keane CJ held that the opinion of the expert witness
psychologist which gave reasons for the delay in complaining about the alleged
sexual abuse ―was a gravely inadequate one.‖ In the report she attributed the
‗cluster of behaviours‘ demonstrated by the complainant to sexual abuse but
failed to suggest other reasons for these behaviours. However, in cross-
examination, she acknowledged that there were other possibilities and other
factors involved which she had not listed in the report, and which she had not
made the effort to inform herself about in detail.

187
High Court, 5 December, 1997. This view was approved in JL v DPP [2000] 3 IR
122 where Hardiman J warned that in such cases the ―need for caution and for a
very full and impartial presentation of psychiatric and psychological evidence.‖
188
High Court, 23 November 2001.
189
High Court, 23 November 2001 at 31.
190
High Court, 23 November 2001 at 31.
191
[2000] IESC 58.

187
3.214 Furthermore, the expert had failed to interview the complainant‘s
parents or other siblings, which, in the view of the court, would have been
relevant ―to see if the ‗clusters of behaviours‘ on which she placed emphasis
were replicated in other relevant people.‖192 Keane CJ also criticised the fact
that:
―she has little specific to say about nondisclosure in adulthood by this
complainant and indeed had failed to elicit basic facts about it.‖
For all these reasons, he held that not much weight could be placed in the
psychologist‘s report and the reasons for the delay and, as a result, the Court
allowed the applicant‘s appeal.
3.215 In RB v DPP193 Macken J elucidated more clearly the standard of
evidence that would be expected from experts in such cases:
―While it is true that in certain reported cases the expert has stated
that in his/her opinion it was quite ―reasonable‖ for the complainant
not to complain, it seems to me that this is not really the correct
approach. It may be that such experts are asked by legal advisers to
give an opinion as to whether it is or is not reasonable not to
complain having regard to the effects of abuse. I believe, however, it
is preferable for the expert to set out for the Court in as clear
language as possible those factors concerning the complainant which
will allow the Court to decide whether it was explicable and
excusable by reference to the applicant's abuse, for the complainant
to refrain from complaining at an earlier point in time.‖194
3.216 These cases show the courts in such cases to place a heavy duty on
experts to be thorough in their investigations and ensure they take all relevant
factors into account, and where necessary, actively interview individuals whose
information may have a considerable bearing on the opinion, in order to give a
clear and detailed opinion about the relevant issues in question.
3.217 The large quantity of cases in this vein where expert evidence has
been criticised, and in some cases, rejected, highlights that the court requires a
high standard of care from professional witnesses. 195 The potential
consequences for complainants in these cases in having the prosecution

192
[2000] IESC 58 at [169].
193
High Court, 21 December 2004.
194
High Court, 21 December 2004.
195
FC v DPP High Court, 7 March, 2003; TM v DPP High Court, 20 June 2001;
Fitzgerald v DPP High Court, 5 December 1997; and PL v DPP High Court, 16
April 2002.

188
dismissed are also considerably onerous, a factor that should also be used to
encourage expert‘s to conduct a thorough investigation from the outset. 196
3.218 O‘Flaherty J in a 1996 Conference of Advances in Forensic Science
suggested a checklist or a number of ‗commandments‘ by which any expert
seeking to give effect expert testimony should abide. 197 First, he should be
properly qualified in the field in which he purports to be an expert, and as can
be seen from the above, this involves an ability to demonstrate this knowledge
in court.
3.219 Second, the expert should be ―a servant of justice rather than act as
the hireling of one side or the other.‖ 198 Third, where possible he should enter
into discussions with the other side prior to the trial with the view of narrowing
contentious issues and thus of possibly speeding up the trial process. Fourth,
he should have the ability to communicate his conclusions in a way that will be
understandable to way people.
3.220 Fifth, he should be meticulous in his record keeping, ensuring that
exhibits are well preserved, which will help reduce mistakes that could lead to
appeals or acquittals. Sixth, he should not pretend to have expertise that he
does not possess. Finally, he must remain patient at all times and not lose his
temper during questioning.
(b) Professional Bodies
3.221 As with England and Australia, certain professional bodies in Ireland
who regulate and govern certain professions have set out guidelines for their
members to help explain their role and duties when called to act as an expert
witness.
3.222 For example, the Expert Witness Directory of Ireland consists of a
reference-checked list of expert witnesses in over 1,000 areas of expertise. In
order to be permitted to use the ‗Expert Witness Directory of Ireland Irish
Checked‘ logo, an expert witness will have to prove that they have met with the
requirements of the Expert Witness Directory of Ireland Code of Conduct.199
3.223 This is a Code of Guidance which aims to assist experts to effectively
provide reliable expert testimony. It is split into twelve sections and begins by

196
On this issue see the comments of Kearns J in TH v DPP High Court, 22 October
2004.
197
O‘Flaherty ―The Expert Witness and the Courts‖ (1997) 3 at 5-7.
198
O‘Flaherty ―The Expert Witness and the Courts‖ (1997) 3 at 6.
199
See: Expert Witness Directory of Ireland ―Code of Practice: Expert Witnesses
Engaged by Solicitors‖ Available at: http://www.expertwitnessireland.info/.

189
stating in the introduction that its provisions are of general application and
therefore there may be additional requirements relating to specialised areas.
The Code is extremely detailed and does not merely outline the duties and
ethical obligations owed by experts but also goes into great detail about the
procedural requirements and obligations where a person has agreed to act as
an expert witness.
3.224 The second part sets out the procedure for acceptance of instructions
from a solicitor or barrister and stresses that clear instructions are required.
Interestingly, this clearly explains the admissibility requirements for expert
evidence by emphasising that instructions can only be accepted where the
expert has the ―knowledge, experience, expertise, academic qualifications,
professional training and resources appropriate for the assignment,‖ and an
expert may not misrepresent himself in terms of his or her qualifications or
experience. It is also underlined here that an expert should not take instructions
if they are not able to create a report and carry out other necessary tasks within
the agreed timeframe or to the necessary standard.
3.225 Part 3 is procedural in nature and explains that the terms of business,
such as timeframe, charges, expenses, rates for court attendance etc, should
be agreed prior to the acceptance of instructions. Part 4 simply states that the
expert must comply with the Code of Conduct of any professional body of which
he or she is a member. Part 5 underlines the obligation on the expert to act in
confidence unless under a duty to disclose.
3.226 Part 6 sets out clearly the duty on the expert to act independently and
with professional objectivity and impartiality at all times. In doing so, this part
requires the expert to disclose any potential conflict of interest and gives
examples of the forms such potential conflicts can take.
3.227 The seventh part of the Code sets out detailed requirements relating
to the expected standard of investigation (where this is necessary) that must be
carried out by an expert in order to give a fully informed report. Particular
provisions are set out relating to investigations for the purposes of medical
reports.
3.228 The next part sets out in great detail the requisite elements of the
expert report. This sets out both form and substantive contents requirements
and explains the permitted scope of the evidence by emphasising that an expert
must stay within his area of expertise and where possible should distinguish
between matters of fact and matters of opinion.
3.229 Part 9 of the Code of Practice provides for the convening of meetings
between experts and gives some practical guidelines relating to how such
discussions should take place.

190
3.230 Part 10 places a duty on experts to take all reasonable steps to
ensure that he or she is available to give evidence in court, and this part also
strongly emphasises that when giving evidence in court, the role of the expert is
to assist the court independently of the parties. As the overriding duty owed to
the court is such a central tenet in the expert witness system it is submitted that
it should take a more centre stage place in the Code of Practice.
3.231 Placing this in a provision which deals solely with the duty to attend
court may lead one to believe that the overriding duty to the court is owed only
while giving evidence in court, and therefore no such duty is owed when
creating the expert report. This is clearly an erroneous belief.
3.232 The last two provisions are very significant in that they refer to the
accountability of experts. Part 11 states that expert should provide a procedure
for the resolution of complaints of solicitors or barristers. Part 12 requires an
expert to maintain appropriate professional indemnity cover for the giving of
expert testimony.
3.233 The Irish National Teachers Organisation (INTO) has also created a
guidance direction for teachers acting as expert witnesses in cases involving
such issues as family law, custody, child protection or negligence. 200 While this
guidance note does not refer to an overriding duty to the court, or that the
expert should always be impartial, independent and unbiased, it does place
considerable emphasis on ensuring that teachers realise the extent of their area
of expertise;
―The teacher is there in his/her professional capacity as a teacher
and should generally be expected only to comment in relation to the
teaching/learning situation, for example in relation to the child's
attendance, progress or other school related matters. Teachers
should note that they are not psychologists or social workers and that
their professional expertise relates to the teaching/learning
situation.‖201
3.234 Similarly, the Society of Actuaries in Ireland also provides a Standard
of Practice guidance note for actuaries acting as experts. 202 This is an extremely

200
See INTO ―Teachers and Court Cases‖ Available at:
http://www.into.ie/ROI/LegalAndIndustrialRelations/ParentTeacherRelations/Teac
hersandCourtCases/#top.
201
INTO ―Teachers and Court Cases‖ Available at:
http://www.into.ie/ROI/LegalAndIndustrialRelations/ParentTeacherRelations/Teac
hersandCourtCases/#top.
202
See Society of Actuaries in Ireland ―Actuarial Standard of Practice EXP1 - The
Actuary as Expert Witness‖ (2006) Available at;

191
detailed document which has a very clear and comprehensible structure. It is
well organised into different sections entitled ‗background‘, ‗background
preparation,‘ ‗preparation of evidence,‘ and ‗communication and disclosure.‘
3.235 In the ‗Background‘ section, the guidelines explain the burgeoning
use of experts in court proceedings, and also the fact that competing and
conflicting expert opinions can lower public confidence in them. The guidelines
stated aim, therefore, is to focus on the preparation and delivery of sound
expert evidence by actuaries.203 Examples of the different types of issues for
which actuaries are invited to give expert evidence are outlined.
3.236 In the ‗Background Preparation‘ section, experts are obliged to be
familiar with all relevant actuarial standards of practice, and to have sufficient
expertise as is necessary for the issues involved in the case.204 This part also
requires an expert to avoid potential conflicts of interest and notify the court and
the parties about potential conflicts.205 This section is very detailed and for the
benefit of those professionals who may be unaware of what may amount to a
conflict of interest, the guidelines give examples of what format this may take. 206
3.237 The ‗Preparation of Evidence‘ section interestingly requires the
actuary to be satisfied of the reasonableness of the data provided, and to
disclose any data limitations which may affect the result. This requirement
would go a long way towards ensuring that the expert genuinely held the

http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Exp
ert%20Witness/ASP%20EXP-1%20v1.1.pdf.
203
Society of Actuaries in Ireland ―Actuarial Standard of Practice EXP1 - The Actuary
as Expert Witness‖ (2006) Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Exp
ert%20Witness/ASP%20EXP-1%20v1.1.pdf, at 2.1-2.2.
204
Society of Actuaries in Ireland ―Actuarial Standard of Practice EXP1 - The Actuary
as Expert Witness‖ (2006) Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Exp
ert%20Witness/ASP%20EXP-1%20v1.1.pdf, at 3.1.
205
Society of Actuaries in Ireland ―Actuarial Standard of Practice EXP1 - The Actuary
as Expert Witness‖ (2006) Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Exp
ert%20Witness/ASP%20EXP-1%20v1.1.pdf, at 3.2 -3.3.
206
Society of Actuaries in Ireland ―Actuarial Standard of Practice EXP1 - The Actuary
as Expert Witness‖ (2006) Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Exp
ert%20Witness/ASP%20EXP-1%20v1.1.pdf, at 3.2.4-3.2.5.

192
opinion given. This part is also important as it gives very clear guidance about
the type of evidence that can be given by actuaries, explaining that they can
give valuations based on assumptions once it is made clear to the court and the
parties which assumptions are reasonable.
3.238 It is also strongly emphasised in the ‗Preparation of Evidence‘ section
that the fundamental obligation of the expert is to provide impartial evidence to
the court and that the opinion must be confined to matters within the expert‘s
own experience and expertise. This part is reminiscent of the Ikerian Reefer
going so far as to point out that expert evidence must ―not be modified to suit
the exigencies of litigation.‖207
3.239 Guideline 4.4.4 is also noteworthy as it demonstrates an
understanding of the possibility that a party‘s legal advisers may wish to direct
the opinion to suit their needs. This part highlights the supremacy of the duty
owed to the court by emphasising if this is the case the expert should consider
advising that another expert be instructed rather than depart from these
guidelines:
―If legal advisers propose that the actuary should avoid reference to
particular information or, in some other way, depart from the general
tenor of these guidelines, the actuary should comply only if entirely at
ease with the adviser‘s proposal, having fully considered the
implications. It may be appropriate in exceptional circumstances for
the actuary to seek independent advice or to suggest that, if the tenor
or method of presentation of the evidence is not acceptable to the
client, another expert should be instructed.‖ 208
3.240 The ‗Communications and Disclosures‘ section explains the
necessity for the expert‘s opinion to be expressed in clear, understandable
language and in terms that can be comprehended by those unacquainted with
the jargon of the profession. This section also explains the duties owed by the
experts to produce a report, and explains potential pre-trial procedures such as
meetings between experts, as well as referring to legal terminology that might
apply such as a meeting ‗without prejudice.‘ It also clearly outlines potential

207
Society of Actuaries in Ireland ―Actuarial Standard of Practice EXP1 - The Actuary
as Expert Witness‖ (2006) Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Exp
ert%20Witness/ASP%20EXP-1%20v1.1.pd, at 4.4.2.
208
Society of Actuaries in Ireland ―Actuarial Standard of Practice EXP1 - The Actuary
as Expert Witness‖ (2006) Available at;
http://www.actuaries.ie/Professional%20Standards/professional%20guidance/Exp
ert%20Witness/ASP%20EXP-1%20v1.1.pdf, at 4.4.4.

193
traps for experts during cross examination and the need to ensure consistency
in answers. This part reveals that the writers of the guidance note understand
clearly that professionals depending on it will be unaccustomed to many
aspects of the legal system and to the role of an expert witness.
3.241 Finally, the expert is encouraged to refrain from becoming a party‘s
advocate, and interestingly, not to be afraid to characterise an opinion as
nothing more than speculation, again stressing that the fundamental duty is to
provide independent evidence and not to defend the instructing party.
3.242 Overall, these guidelines explain the principal role and duties of an
expert while at the same time not forgetting that those relying on the guidelines
are likely to be inexperienced in relation to aspects of the legal system. These
guidelines could therefore provide a good model on which to base any legally
binding code or practice direction for experts.

E Conclusion
3.243 As demonstrated by the foregoing discussion, most other common
law jurisdictions have made some attempts at introducing a formal list of duties
owed by persons seeking to act as expert witnesses that reflect the duties set
out in the seminal English decision National Justice Compania Naviera SA v
Prudential Assurance Co Ltd (The Ikerian Reefer).209
3.244 Although specific duties have been mentioned in Irish case law as
being owed by experts, and although several professional bodies in Ireland
have set down their own list of expert‘s duties, as of yet there has been little
judicial or legislative guidance for experts on the complete list of duties which
are owed by them in their role as expert witnesses.
3.245 The Commission considers that more complete judicial or legislative
guidance would greatly improve the standard of expert evidence and of expert
witnesses by clearly elucidating the parameters of the role of an expert witness.
The Commission therefore provisionally recommends that a formal guidance
code for expert witnesses, based on the principles set down in National Justice
Compania Naviera SA v Prudential Assurance Co Ltd (The Ikerian Reefer) 210
should be developed which would outline the duties owed by expert witnesses
and which would be made available to all persons seeking to act as expert
witnesses. The Commission invites submissions on the form, statutory or non-
statutory, this guidance should take and whether all the specific duties identified
in The Ikerian Reefer should be adopted.

209
[1993] 2 Lloyd‘s Rep 68.
210
[1993] 2 Lloyd‘s Rep 68.

194
3.246 The Commission provisionally recommends that a formal guidance
code for expert witnesses, based on the principles set down in National Justice
Compania Naviera SA v Prudential Assurance Co Ltd (The Ikerian Reefer) 211
should be developed which would outline the duties owed by expert witnesses
and which would be made available to all persons seeking to act as expert
witnesses. The Commission invites submissions on the form, statutory or non-
statutory, this guidance should take and whether all the specific duties identified
in The Ikerian Reefer should be adopted.

211
[1993] 2 Lloyd‘s Rep 68.

195
4

CHAPTER 4 ADVERSARIAL BIAS, PARTISANSHIP &

CONFLICTS OF INTEREST

A Introduction
4.01 The corollary of the identification a number of fundamental duties
owed by experts is the acknowledgment that at times these duties are not
always fulfilled, or in some cases, even recognised. Although the role and
function of the expert as an impartial aid to the court has been repeated time
and time again, in reality, where an expert has been retained by a party to
judicial proceedings, this has not been done in the overriding quest for truth, but
in order to enhance the arguments that the particular party seeks to advance
and offset the evidence of experts for the other side.
4.02 Bias or partisanship, which goes completely against the duty owed by
the expert to be impartial and independent, can take place in a number of ways
in the giving of expert testimony and a number of different sources of
adversarial bias have been identified. ‗Conscious bias,‘ ‗unconscious bias‘ or
‗selection bias‘ may all occur in the giving of expert testimony. 1
4.03 This chapter will examine the various sources of adversarial bias that
have been identified in an effort to determine how best to reduce the prevalence
of bias in expert testimony.

B Conscious Bias
4.04 Conscious or deliberate bias refers to the problem of the partisan
expert, or the ‗hired gun.‘ Here, the expert does appreciate the extent of the role
and the overriding duty owed to the court, but is biased in favour of the
instructing party due to the fact that the party is paying them, or in some cases,
due to the expert‘s personal feelings on issues involved in the case.
4.05 Although it is clear that there is an equal potential for conscious bias
in the context of lay witnesses, the likelihood of this occurring is stronger with

1
For more discussion on the various forms of adversarial bias, see: Bernstein
―Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert
Revolution‖ (February 2007). George Mason Law & Economics Research Paper
No. 07-11 Available at SSRN: http://ssrn.com/abstract=963461, at 4.

197
professional expert witnesses for a number of reasons. Dwyer explains that the
causes of expert bias, conscious or unconscious, can be separated into three
categories; personal interest, financial interest and intellectual interest; all of
which may exist both externally and in direct relation to the litigation in
question.2
(1) Personal Interest
4.06 A person giving expert testimony may be, or may be perceived to be,
predisposed to giving a particular type of opinion due to their own beliefs or
moral viewpoints on certain issues. 3 They may also have formed preconceived
opinions due to personal relationships, or due to an affiliation with or
membership of the same organisation as one of the parties to the proceedings, 4
all of which may have a negative effect on their personal trustworthiness as an
independent expert witness.
4.07 In Liverpool Roman Catholic Archdiocesan Trust v. Goldberg5 the
court refused to admit an expert adduced by the defence because the
defendant had had a close personal and professional relationship with the
expert for several years. Evans-Lombe J explained that the refusal was based
on the fact that a reasonable observer might think that this relationship was
capable of affecting the views of the expert so as to make them unduly
favourable to that party.

2
Dwyer ―The Causes and Manifestations of Bias in Civil Expert Evidence‖ (2007)
26 CJQ 425 at 427
3
Dwyer states that examples of moral opinions affecting the independence of
expert evidence are relatively rare. She cites the Wyoming state family decision
Hertzler v Hertzler (1995) WY 206; 908 P. 2d 946 where the expert appointed by
one of the parties admitted under cross-examination that his religious beliefs
regarding homosexuality affected his opinions in the case. (See American
Psychology Association ―Brief of Amici Curiae American Psychology Association
and Wyoming Psychology Association‖ Available at:
http://www.apa.org/psyclaw/hertzler.pdf; (Dwyer ―The Causes and Manifestations
of Bias in Civil Expert Evidence‖ (2007) 26 CJQ 425 at 427).
4
In Toth v Jarman [2006] EWCA Civ 1028, [2006] All ER (D) 271 (Jul) the
appellant argued that the judgment should be set aside where the expert failed to
disclose the potential conflict of interest due to his membership of a committee
associated with the defence. The court here did not find the expert to be biased
but did emphasise the duty on the expert to disclose any potential conflict of
interest at an early stage in proceedings.
5
[2002] 1 WLR 237

198
4.08 Expert witnesses might also find themselves becoming emotionally
involved with the instructing party, or identifying and sympathising with their
arguments, in circumstances where they have spent considerable time
analysing the issues, or where they have been repeatedly instructed by the
same party and thus have become almost akin to that party‘s adviser.
4.09 Particularly where emotive or sensitive issues are in question, this
may lead the expert to become attached to their instructing party, thus
exacerbating the possibility that they will, either consciously or unconsciously,
sway the opinion in their favour.
4.10 This danger that an expert witness who has a well established
relationship with a party might develop sympathy for or identification with that
party which jeopardises objectivity was referred to in Vernon v Bosley.6 Here,
the plaintiff claimed damages for nervous shock or psychiatric injury sustained
by him when he witnessed unsuccessful attempts to rescue his two daughters
from a motor car which had been driven into a river by the defendant.
4.11 Thorpe J found the claimant‘s expert witness‘s evidence to be
―thoroughly partisan reports.‖ He explained that:
―…their loss of objectivity might be ascribed to their daily attendance
at the trial which had tempted them into sharing attitudes,
assumptions, and goals with the defendant's litigation team.‖
4.12 It is also worth noting that where emotive issues such as this are
involved, it is human nature to become sympathetic to the person involved and
seek to further his or her case. This is particularly so in situations where, as
occurred in this case, the experts were ―sucked into‖ the litigation as a result of
spending considerable time in court, particularly when only a small proportion of
this time was necessary for their testimony. One way of reducing this danger is
to limit the expert‘s attendance at trial, only permitting them to attend court
when they are due to be examined.
4.13 Another possible cause of bias generated by the personal interest of
experts is where they develop a belief that they owe an allegiance to their
particular profession, making them reluctant to fuel an attack against a fellow
practitioner. As Healy puts it, ―members of professions tend to be institutionally
and socially collegial.‖7
4.14 This possibility has an added effect in the context of medical
negligence cases as a result of the ultimate importance attached to the opinion
of medical experts in determining whether a professional has acted negligently.

6
[1996] EWCA Civ 1217.
7
Healy Irish Laws of Evidence (2004 Thomson Roundhall).

199
The test for medical negligence in this jurisdiction was set down by Finlay CJ in
Dunne v National Maternity Hospital.8 A medical practitioner will be considered
as having acting negligently if he has been proved to be ―guilty of such failure
as no medical practitioner of equal specialist or general status and skill would
be guilty of if acting with ordinary care.‖
4.15 Therefore, a plaintiff will fail to establish negligence once a defendant
can adduce a credible expert witness to condone the course of action taken in
the circumstances. Without wilfully meaning to be partisan, there is the
possibility that a medical expert may express a willingness to testify on behalf of
the defendant practitioner that is more motivated by a desire to support one of
their own, than an actual support of the medical action taken in the case.
4.16 Furthermore, it has often been pointed out that in such medical
negligence cases, defence expert witnesses can dominate proceedings as
there is reluctance on the part of the expert to help in what is seen as an attack
on a fellow practitioner.9 Carter J referred to this trend in the Californian
decision Huffman v Lindquist:10
―…physicians who are members of medical societies flock to the
defense of their fellow member charged with malpractice and the
plaintiff is relegated, for his expert testimony, to the occasional lone
wolf or heroic soul, who for the sake of truth and justice has the
courage to run the risk of ostracism by his fellow practitioners and the
cancellation of his public liability insurance policy.‖11

8
[1989] IR 91 (SC).
9
Healy refers to a survey, referred to in Morris v Metriyakool (1981) 309 N.W. 2d
910, where they were a number of medical practitioners presented with a
scenario of a doctor who grossly negligently removes the wrong kidney from a
patient. Only 31% of specialists and 27% of general practitioners said they would
be willing to testify as an expert witness on behalf of the plaintiff patient. (See
Healy Irish Laws of Evidence (2004 Thomson Roundhall) at 366.
10
(1951) 37 Cal 2d 465; 234 P.2d 34 Cited in Nockelby & Curreri ―100 Years of
Conflict; The Past and Future of Tort Retrenchment‖ Loyola of Los Angeles Law
Review Vol XX:nnn 101 at 140.
11
(1951) 37 Cal 2d 465 at 484; 234 P.2d 34 at 46 Cited in Nockelby & Curreri ―100
Years of Conflict; The Past and Future of Tort Retrenchment‖ Loyola of Los
Angeles Law Review Vol XX:nnn 101 at 140.

200
(2) Financial Interest
4.17 An expert may be revealed to have a financial interest, either pre-
existing or developed during the trial process, in the outcome of the case or in
one of the parties in a number of ways that may not be obvious at first glance.
(a) Pecuniary Interest in One of the Parties
4.18 The expert witness could be revealed to have invested in or have
shares in one of the instructing parties‘ businesses, or in an enterprise related
to one of the parties. Depending on the context of the litigation, this fact may
influence their opinion, as they would be reluctant to give an expert opinion that
would be likely to have a negative financial effect on the party‘s business, as
this might in turn harm the expert‘s pecuniary interest.
(b) Desire to Develop a Professional Expert Witness Career
4.19 Similarly, a person who wishes to develop a career as a professional
expert witness has an obvious interest in promoting a reputation that he or she
presents the party‘s case in the best possible light. The more successful cases
an expert is associated with, the better for his or her career as an expert, which
highlights a natural underlying interest in the instructing party‘s success. 12
(c) Expert Employed by One of the Parties
4.20 Furthermore, an expert, who is, prior to and after the proceedings, an
employee of the instructing party, or of another interested party, could also
evidently be considered as having their independence compromised due to the
financial element of their employment. It is possible that the employee may feel
pressured into expressing a particular opinion to avoid potential dismissal or
other professional repercussions.
4.21 For example in Mohammed v Financial Services Authority 13 the
applicant argued that the respondent‘s expert witness should not be admitted
due to the fact that a senior staff member of the company the expert was
employed by was a member of the respondent organisation‘s regulatory
committee, and thus was involved in the decision to bring proceedings against
the applicant.
4.22 It was argued that the fact of employment brought the expert‘s
independence into question as it was contended the expert would be reluctant
to depart from the views of a senior member of his own company on the issues
in question. The court here emphasised that they were not criticising the expert,

12
For more on this see Dwyer ―The Causes and Manifestations of Bias in Civil
Expert Evidence‖ (2007) 26 CJQ 425 at 430-433.
13
[2005] UKFSM FSM013 (18 January 2005).

201
but did hold that the expert could not be considered truly independent and that
―insofar as he has been tendered as an independent expert giving an opinion as
to the views of a regular user of the market, we have been unable to give his
evidence much weight.‖ 14
4.23 The correct approach to be taken in the context of experts who are
also employees of a party to proceedings was discussed in Chapter 3,15 where
it was explained that the preferred approach taken in the case law from this
jurisdiction, for example Galvin v Murray,16 and in England is not to treat the fact
of employment of an expert as demonstrating apparent bias, but rather to take
this fact into account when assessing the weight to be accorded to the evidence
of the expert. 17
4.24 It has also been argued that problems may arise where a therapist is
treating an individual and at the same time is asked to act as an expert witness
in a case involving the individual. 18 This assumption of a dual role could lead to
a very real conflict of interest and have negative impact on the therapist-patient
relationship, or may adversely affect the way in which the evidence is presented
to the court.

14
[2005] UKFSM FSM013 (18 January 2005) at [60].
15
See above at 3.42-3.51.
16
[2000] IESC 78.
17
As Lord Phillips MR stated in R (Factortame) v Secretary of State for Transport
[2002] EWCA 932 at [70]: ―This passage seems to us to be applying to an expert
witness the same test of apparent bias that would be applicable to the tribunal.
We do not believe that this approach is correct. It would inevitably exclude an
employee from giving expert evidence on behalf of an employer. Expert evidence
comes in many forms and in relation to many different types of issue. It is always
desirable that an expert should have no actual or apparent interest in the
outcome of the proceedings in which he gives evidence, but such disinterest is
not automatically a precondition to the admissibility of his evidence. Where an
expert has an interest of one kind or another in the outcome of the case, this fact
should be made known to the court as soon as possible. The question of whether
the proposed expert should be permitted to give evidence should then be
determined in the course of case management. In considering that question the
Judge will have to weigh the alternative choices open if the expert‘s evidence is
excluded, having regard to the overriding objective of the Civil Procedure Rules.‖
18
See Slovenko ―On a Therapist Serving as a Witness‖ (2002) 30 J Am Acad
Psychiatric Law 10.

202
4.25 For example, in the infamous American case in the 1990s of Erik and
Lyle Menendez, who were charged with the murder of their parents, a forensic
psychiatrist who treated Erik and also gave evidence in his capacity as forensic
psychiatrist later admitted to have altering notes of his sessions as he thought
this would harm the defence. As explained by fellow psychiatrist Dr. Schetky:
―Amid pressures to protect his patient and appease his attorney client
and his belief that his testimony was critical to the case, he lost sight
of the need for the psychiatrist at all times to testify truthfully. When
we allow our integrity to be compromised by competing pressures,
we do a disservice to our patients, the profession, and the legal
system.‖19
4.26 However, it is also clear that in determining issues such as sanity of
an accused such therapists are arguably best placed to testify accurately about
the patient, having had first-hand experience with them at the relevant time,
rather than a practitioner who makes an opinion based on a therapist‘s notes of
examinations.
4.27 Based on the added value that first-hand experience will give to an
opinion, any prohibition on treating therapists acting as expert witnesses is
clearly undesirable. It is submitted that the correct approach to take in such
cases is once again take into account this fact at weight, rather than
admissibility stage. The Commission therefore provisionally recommends that
there should not be a prohibition on treating therapists acting as expert
witnesses.
4.28 The Commission provisionally recommends that there should not be
a prohibition on treating therapists acting as expert witnesses.
(d) Expert Paid by the Instructing Party
4.29 The most obvious source of the financial interest that an expert has
in court proceedings lies in the fact that experts are being paid by the instructing
party for their service in giving evidence. This is in contrast with the situation of
ordinary witnesses, who are not paid for their testimony, and who can be
compelled to give evidence, so do not do it as a ‗service.‘20 As pointed out by
Jessell LJ in Abinger v Ashton:21

19
―Letter to the Editor‖ (1996) 9 Psychiatry News 4 Cited in: Slovenko ―On a
Therapist Serving as a Witness‖ (2002) 30 J Am Acad Psychiatric Law 10.
20
It is noted that an expert can be compelled to give evidence just as an ordinary
witness can, however, in practice this will rarely occur.
21
L.R. 17 Eq. 358, 373 (1873).

203
 ―Expert evidence of this kind is evidence of persons who sometimes
live by their business, but in all cases are remunerated for their
evidence. An expert is not like an ordinary witness, who hopes to get
his expenses, but he is employed and paid in the sense of gain,
being employed by the person who calls him. Now it is natural that
his mind, however honest he may be, should be biassed [sic] in
favour of the person employing him, and accordingly we do find such
bias.‖22
4.30 It will also be more difficult for the other party to reveal an expert to
be a partisan hired hand than it will be to discredit an ordinary witness whose
personal affiliations with a party are detectable, due to the fact that the other
party is likely to be funding their own expert, which would prevent them raising
pecuniary reasons for the alleged bias.
4.31 In the context of payment of experts, the existence of a contingency
fee basis for payment is potentially indicative of a pecuniary bias on the part of
the expert during the trial process. In England, the appropriateness of
contingency fees was considered in R (Factortame) v Secretary of State for
Transport23 where the court held that such arrangements would not
automatically preclude evidence, but such an interest should be disclosed and
may affect the weight of the evidence. 24
(3) Intellectual Interest
4.32 Intellectual interest is another factor that may generate bias in cases
where there is general scope for differing opinions between experts; an interest
which may be motivated by a desire on the part of the witness to promote a

22
Abinger v Ashton L.R. 17 Eq. 358, 373 (1873).
23
[2002] EWCA 932.
24
Similarly, in Davis v Stena Line Ltd [2005] EWHC 420 (QB) the defendant argued
that the claimant‘s expert witness should not be permitted to give evidence due to
the fact that he had been hired on a ‗no win no fee‘ basis and had thus carried out
his task in circumstances where he had a significant financial interest in the
outcome of the proceedings, a fact that may ―nullify his neutrality.‖ (at [20])
However, on the evidence Forbes J considered that neither the expert nor the
party involved had understood that contingency fees were an inappropriate
remuneration arrangement for experts, and rejected the contention that their
evidence was lacking in objectivity in any way or was biased. (at [29]).

204
particular theory in their field of expertise through the medium of court
proceedings.25
4.33 The desire to increase one‘s expert status in a particular subject may
lead a person to be biased in favour of their own theories, either consciously or
subconsciously. This could have significant effects on the way in which they
present expert evidence in court. The development of novel scientific theories
can significantly improve a scientist‘s standing in their field. The witness may
use the courtroom setting as a vehicle for promoting their career without fully
considering other possibilities with regard to the specific issues involved in the
case, if such alternatives would detract from their personal theories.
4.34 This possibility is aggravated by the distinction which exists between
ordinary and expert witnesses. Since lay witnesses must restrict their evidence
to matters personally perceived by them the available choice, if any, of such
witnesses is limited. Both parties, however, are free to survey a wide range of
expert witnesses to find one sympathetic to the party‘s own arguments.
4.35 Although it is inevitable that a person who is considered to be an
expert will submit their own experience as representing best knowledge and
practice in the subject area, an expert witness should be willing to consider
alternative theories rather than uncompromisingly sticking to their own
viewpoint. All theories should be judged in the light of the facts of the case.
4.36 An English example where an expert was held to have been giving
biased evidence appearing to have been motivated by his professional
viewpoint is Petursson & Ors v Hitchison 3G UK Ltd.26 In this case the claimants
claimed that the defendant‘s telecommunications mast had had substantial
adverse effects on their physical health and well-being and on their enjoyment
of their property, an issue that in recent years is attracting increasingly zealous
and fervent views.27
4.37 Here, the claimant‘s expert claimed that a number of expert reports
and studies on this issue that were submitted in evidence ―lacked honesty,
independence and were economical with the truth.‖ 28 In considering this
evidence, Kirkham J considered that the expert‘s criticisms must be viewed in
the light of his own partiality in giving evidence. She criticised the expert for his

25
Dwyer ―The Causes and Manifestations of Bias in Civil Expert Evidence‖ (2007)
26 CJQ 425 at 434.
26
[2005] EWHC 920 (TCC) (09 May 2005).
27
Mahendra ―Mistakes in Court‖ (2007) New Law Journal 462.
28
[2005] EWHC 920 (TCC) (09 May 2005) at [74].

205
lack of balance and partiality in giving evidence and held that he lacked the
objective approach the court expects from an expert witness.
4.38 This case demonstrates the range of negative consequences of an
expert adopting a biased approach. Here, the expert had for many years been
concerned with the potential health hazards associated with the radiation used
in such masts and so had considerable expertise on this issue and clearly his
opinion could have been of important evidential value. However, as a result of
his ―bold and startling contention‖ about the expert reports, Kirkham J appeared
very reluctant to consider the rest of his evidence and ultimately rejected the
claimant‘s argument. Considerably more weight may have been attributed to the
claimant‘s theories had he outlined them in an objective, balanced manner.
4.39 It has also been argued that jurors are more likely to perceive a
professional expert witness to be an unbiased contributor to the case than an
ordinary witness.29 This may lead the judge or jury to be more wary of potential
bias in the case of ordinary witnesses, as the causes of this potential bias, such
as a relationship with the party, are more visible. Jurors may thus lower their
guard where expert witnesses, particularly scientific experts, are testifying, in
the (potentially erroneous) belief that such experts will give neutral evidence.
(4) Bias or Genuine Disagreement
4.40 It is clear that difficulties can occasionally arise in distinguishing
conscious bias from an honestly held dissenting opinion or genuine
disagreement. Determining whether or not a person genuinely holds a particular
opinion is clearly impossible, so where the opinion is not so extreme as to
amount to an obvious manifestation of bias, but instead comes within the range
of opinion which could be applied to a particular subject, it can be impossible to
discover the true intent of the expert; i.e. if they are merely adopting that
viewpoint to coincide with the party‘s arguments.
4.41 The difficulty in distinguishing disagreement from bias is aggravated
in certain subject matters that can be considered ‗theory-rich disciplines.‘30 The
Commission has already discussed in Chapter 2 how new and emerging
disciplines or ‗sciences‘ are emerging all the time, and determining what
amounts to a ‗junk science‘ has proved problematic.

29
Bernstein ―Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the
Daubert Revolution‖ (February 2007). George Mason Law & Economics
Research Paper No. 07-11 Available at SSRN:
http://ssrn.com/abstract=963461,at 4.
30
Dwyer ―The Causes and Manifestations of Bias in Civil Expert Evidence‖ (2007)
26 CJQ 425 at 438.

206
4.42 Even experts within a particular subject area may disagree on certain
theoretical aspects of their subject area, or on the appropriate way in which a
subject is to be analysed, and in some instances there may be more than one
possible reason for or interpretation of a particular result, all of which makes it
even harder to detect if the expression of a contradictory view by an expert is
legitimate or motivated by bias.

C Unconscious Bias
4.43 Unconscious bias occurs where the expert sways their opinion in
favour of the instructing party without realising they are doing so, often
subconsciously feeling they owe a duty to do the best for the party they are
acting for. It is evident that frequently the line separating conscious and
unconscious bias will be blurred as both are rooted in the same causes.
4.44 In this jurisdiction Hardiman J expressly acknowledged the possibility
of an expert being unconsciously prejudiced in favour of their instructing party
where he explained that one of the functions of the system whereby each party
appoints their own expert is ―to counter any unconscious sympathy with one‘s
own patient or client.‖31
4.45 Similarly, over a century ago Jessel LJ showed an understanding of
the potential for such bias in Abinger v Ashton32 where he pointed out that:
―…undoubtedly there is a natural bias to do something serviceable
for those who employ you and adequately remunerate you. It is very
natural, and it is so effectual that we constantly see persons, instead
of considering themselves witnesses, rather consider themselves as
the paid agents of the person who employs them.‖33
(1) Forensic Experts
4.46 Bernstein points out that testimony from forensic scientists is
particularly prone to the allegation of being unconsciously biased due to the fact
that most forensic scientists work for government crime labs and will testify on
behalf of the prosecutor, so they ―naturally identify with the prosecutors‘ goal of
convicting a particular defendant,‖ a fact that may affect their conclusions. 34

31
JF v DPP [2005] IESC 24 (26 April 2005).
32
L.R. 17 Eq. 358, 373 (1873).
33
L.R. 17 Eq. 358, 373 (1873) at 374.
34
Bernstein ―Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the
Daubert Revolution‖ (February 2007). George Mason Law & Economics

207
4.47 Glidewell J in R v Ward35 made reference to this fact;
―For lawyers and judges a forensic scientist conjures up the image of
a man in a white coat working in a laboratory, approaching his task
with cold neutrality, dedicated only to the pursuit of scientific truth. It
is a sombre thought that the reality is sometimes different. Forensic
scientists may become partisan. The very fact that the police seek
their assistance may create a relationship between the police and the
forensic scientists. And the adversarial character of the proceedings
tends to promote this process. Forensic scientists employed by the
government may come to see their function as helping the police.
They may lose their objectivity.‖ 36
4.48 One of the clearest examples of outright bias on the part of experts
arose in the case R v Ward37 Here, a number of forensic experts in a bombing
investigation and trial were found to have been acting in a partisan manner as
they concealed certain results and data, misrepresented other results and
placed a misleading picture of the evidence before the jury. According to
Glidewell J;
―In Miss Ward‘s case the disclosure of scientific evidence was
woefully deficient. Three senior RARDE scientists took the law into
their own hands, and concealed from the prosecution, the defence
and the court, matters which might have changed the course of the
trial.‖38
4.49 More specifically, the presence of traces the chemical nitro-glycerine,
which was used in the manufacture of bombs, on the accused‘s clothes was a
major factor leading to her conviction. However, the prosecution experts failed
to disclose the fact that traces of this substance could be present in such
innocuous substances as shoe polish. Furthermore, it was held that they
grossly exaggerated the significance of certain test results, lied to a defence
expert witness about these test results, and suppressed evidence in order to
further the prosecution case.39

Research Paper No. 07-11 Available at SSRN: http://ssrn.com/abstract=963461,

at 4.
35
(1993) 96 Cr App R 1.
36
(1993) 96 Cr App R 1 at 51.
37
(1993) 96 Cr App R 1.
38
R v Ward (1993) 96 Cr App R 1.
39
For more information on the exact nature of the misleading evidence given by the
prosecution forensic experts in this case see; Schurr ―Expert Witnesses and the

208
4.50 As a result, the court concluded that the forensic evidence could not
be relied on and ultimately found the conviction to be unsafe and the accused
had her conviction quashed. Prior to the acquittal however, Judith Ward had
served 18 years of a custodial sentence, highlighting the serious miscarriages
of justice that can result from bias on the part of expert witnesses.
4.51 Many commentators have expressed dissatisfaction with a situation
whereby the system of forensic science remains under state control, as this
could lead government scientists to become prejudiced, or at the very least lead
to the perception of partisanship.
4.52 Furthermore, even if they do not become prejudiced, their services
are only available to the prosecution, who therefore retain a monopoly on
forensic scientists, which leads to a very small pool of scientists available to the
defence.40
4.53 The recognition of the heightened potential for unconscious bias in
the context of forensic science has led many jurisdictions to reform the structure
of forensic evidence so that all forensic laboratories and scientists are made
independent of law enforcement and government agencies.
4.54 For example, in England, the Royal Commission on Criminal Justice
produced a report entitled ―The Role of Forensic Science Evidence in Criminal
Proceedings‖ in 1993.41 In this report, the Royal Commission recommended that
the government Forensic Science Service be changed into
―…an agency whose expertise is available equally to the Prosecution
and Defence, and whose independence and efficiency are generally
recognized and respected by all.‖
4.55 Pursuant to the recommendations in the Royal Commission report, in
1991 the Forensic Science Service (FSS)42 and the Metropolitan Police
Forensic Science Laboratory, both of which had previously been attached to the
police, were given executive agency status, making them independent from the

Duties of Disclosure and Impartiality: The Lessons of the IRA Cases in England‖
Paper presented at the Law, Medicine and Criminal Justice Conference (Surfer‘s
Paradise, 6-8 July 1993).
40
Bernstein ―Junk Science in the United States and the Commonwealth‖ (1996) 21
Yale Jn‘l of Int‘l L. 123 at 171; Stockdale ―Running with the Hounds‖ (1991) 141
NLJ 772.
41
The Royal Commission on Criminal Justice ‗The Role of Forensic Science
Evidence in Criminal Proceedings‖ (Stationary Office Books, 1993).
42
See; http://www.forensic.gov.uk/forensic_t/inside/services/legal.htm.

209
police and competent to accept cases from both the defence and the
prosecution. 43
4.56 In contrast, in Ireland the Forensic Science Laboratory (FSL) remains
under the auspices of the Department of Justice, Equality and Law Reform, thus
works solely for the Gardaí or other law enforcement agency, and for the
Director of Public Prosecution. The Laboratory is not available to carry out
examinations for private citizens; therefore it will not be available to the defence
in court proceedings. Its mission, as set out in its Strategy Statement, is to;
―Assist in the investigation of crime and to service the administration
of Justice in an effective manner by a highly trained and dedicated
staff providing scientific analysis and objective expert evidence to
international standards.‖44
4.57 In its Report on the Establishment of a DNA Database, the
Commission discussed the range of available options for custodianship of the
proposed DNA database.45 The Commission commended the FSL for its
integrity, competence and efficiency, and acknowledged that in practice it is
independent from and not subject to direction from the Gardaí.
4.58 However, at the same time the Commission expressed concern that
the FSL may be not be publicly perceived as being distinct from and
independent of An Garda Síochána, which may have a negative impact on the
way in which profiles are perceived as being generated.46
4.59 As a result, the Commission recommended the creation of an
independent statutory body which would incorporate the existing FSL and also a
department responsible for the custodianship of the DNA database, and which
would be known as the Forensic Science Agency. This body would be thus

43
However, it has been argued that this change is more ―nomenclature than
substance‖ and has not improved defence access to forensic scientists. See;
Alldridge ―Forensic Science and Expert Evidence‖ (1994) 21 Jnl L. & Soc‘y 136 at
139; Bernstein ―Junk Science in the United States and the Commonwealth‖
(1996) 21 Yale Jn‘l of Int‘l L. 123 at 172.
44
See; http://www.forensicscience.ie/.
45
See Law Reform Commission Consultation Paper on The Establishment of a
DNA Database (LRC CP 29-2004) at 8.04-8.23 and Law Reform Commission
Report on The Establishment of a DNA Database LRC (78-2005) at 4.02-4.13.
46
See Law Reform Commission Consultation Paper on The Establishment of a
DNA Database LRC CP 29-2004 at 8.06; Law Reform Commission Report on
The Establishment of a DNA Database LRC 78-2005 at 4.06-4.07.

210
independent from law enforcement and government agencies both in form and
in structure.
4.60 It is submitted that the creation of such a body would also go a long
way towards improving public perception of forensic expert witnesses. Making
the body independent would lessen the possibility of ‗government forensic
scientists‘ becoming, or being perceived as, partisan hired guns. Allowing the
body to operate independently, and thus to accept work from anyone, not just
law enforcement agencies, would also enable a wider range of clients to have
increased access to forensic services, and thus improve defence access to
forensic science evidence.
4.61 In the Consultation Paper the Commission provisionally
recommended that the new statutory body should require all clients to pay for
services, including Gardaí. However, after receiving submissions on this issue,
in the Report the Commission was of the view that a commercial model for the
proposed agency would be undesirable;
―The Commission is of the opinion that any such model would require
focused and detailed debate regarding the advantages and
disadvantages of what would be a far-reaching transformation of the
forensic science service in Ireland.‖
4.62 It can be argued that this commercial element is very important in
both promoting transparency and improving public perception of the new
agency as being an independent body. This would also reduce the possibility of
the forensic scientists unconsciously viewing themselves as aligned with
government law enforcement agencies.
4.63 Furthermore, requiring all clients to pay for forensic services would
ensure equal access for both prosecution and defence to forensic services and
reduce the disparity of resources between prosecution and defence that could
affect the ability of defendants to challenge forensic expert evidence. It could
also be argued that making the service independent and profit-run would have
the effect of increased efforts to ensure high standards of objective productivity
as any loss of credibility or a public perception of bias would have a detrimental
effect on the business.
(2) Misunderstanding of the Role of the Expert Witness
4.64 At other times, professionals purporting to offer their services as
expert witnesses may be unaware of their overriding duty to be an objective
aide to the court, and actually believe that they owe a paramount duty to the
instructing party to present the case in a light favourable to them.

211
4.65 Barr J gives a good example of where the expert witness confused
his role with that of an advocate.47 He cites a personal injuries case he was
involved in where the expert witness for the plaintiff was a medical examiner
who testified that the permanent shortening of the plaintiff‘s leg as a result of the
accident was likely to lead to arthritic pain and long term pain and disablement.
Barr J relates that the cross-examination proceeded as follows:
―Mr. X, I have to put it to you that a number of times in these courts,
in answer to me, you have positively stated that anything less than
three-quarters of an inch shortening of a leg is of no practical
significance.‖
The immortal reply was:
Mr. Fitzgerald, if I said that I was wrong!‖48
4.66 Barr J goes on to explain the apparent anomaly in the expert‘s view
as the result of a ―fundamental failure…to appreciate that it was no part of his
function to don the mantel of advocate on his client‘s behalf.‖ 49 He goes on to
explain:
―It appears that [the expert‘s] approach to expert testimony was that
in circumstances where a divergence in established professional
opinion regarding possible sequelae of particular injuries existed, he
was entitled to look at the spectrum of opinion and advance the view
most favourable to his side of the particular case.‖ 50
4.67 Another oft-cited example of an expert witness who was clearly
mistaken about the role of an expert witness is the following extract from Ladner
v Higgins,51 a decision of the Louisiana Court of Appeals:
―Is that your conclusion that this man is a malingerer?‖
The expert responded,

47
Barr ―Expert Evidence - A Few Personal Observations and the Implications of
Recent Statutory Development‖ (1999) 4 (4) BR 185.
48
Barr ―Expert Evidence - A Few Personal Observations and the Implications of
Recent Statutory Development‖ (1999) 4 (4) BR 185.
49
Barr ―Expert Evidence - A Few Personal Observations and the Implications of
Recent Statutory Development‖ (1999) 4 (4) BR 185.
50
Barr ―Expert Evidence - A Few Personal Observations and the Implications of
Recent Statutory Development‖ (1999) 4 (4) BR 185.
51
71 So.2d 242 (La. Ct. App. 1954).

212
 ―I wouldn‘t be testifying if I didn‘t think so, unless I was on the other
side, then it would be a posttraumatic condition.‖‖ 52
4.68 More recently, the criticisms by Lady Clark of Calton in the Scottish
case Smith v Lothian University Hospitals NHS Trust53 are also demonstrative
of the possibility of the expert being confused about the extent of his role. This
case also demonstrates that the courts have shown themselves to be vigilant in
the detection of inconsistencies in the theories put forward by experts, which
may be indicative of a lack of conviction by the experts themselves in the
theory.
4.69 Here, the defendant‘s medical expert was criticised for displaying
evidence of partisanship where he attempted to give reasons for the plaintiff‘s
paraplegia as being based on a defective dura and not the negligence of the
doctor by failing to halt the procedure when he felt resistance. Lady Clark
stated:
―Professor Miles appeared to search about towards the end of
evidence for hypotheses which even he said were untenable and
incredible. I am of the opinion that the reason he did this was
because, in the course of evidence, it became clear that the
explanation which had been relied upon by the defenders since 1977,
and supported by him, was ill-founded.
4.70 Later in her judgment Lady Clark continued:
―For an expert witness to start speculating about new theories in his
own evidence without even communicating these theories to counsel,
is unusual and not helpful. It demonstrates in my opinion a failure to
fully understand his own role as an expert. In addition, when
Professor Miles made comments about the circumstances in which
negligence might occur, he appeared to be influenced by the number
of times damage was caused rather than the issue of care and skill in
a particular case. I was also concerned by a passage in his evidence
which I interpret as indicating a partisan rather than independent
attitude. I refer in particular to his evidence summarised in paragraph
65 where he appears to accept that contact with the spinal cord is
another opportunity to feel resistance. But when faced with the
implication of that answer he appears to alter his position. I was left
with serious reservations about his evidence…..In my opinion

52
71 So.2d 242 (La. Ct. App. 1954) at 244 Cited in Alldridge ―Forensic Science and
Expert Evidence‖ (1994) 21 Jnl L. & Soc‘y
53
[2007] ScotCS CSOH_08.

213
 Professor Miles had a closed mind about this and that is why he
apparently sought out various theories, which I reject.‖

D Selection Bias
4.71 A third form of bias is selection, or structural, bias. As a result of the
ability of any party to ‗shop‘ for a suitable expert, the judge or jury are not
presented with a balanced overview of mainstream expert opinion on the issue,
but are given a specific slant of opinion from an expert that has specifically been
recruited due to his willingness to present the viewpoint sought by that party.
4.72 The existing system of expert testimony enables a party to court
proceedings to consult as many potential experts as they wish until they find the
person who will support their case, or an expert who has a particular reputation
which indicates they will be sympathetic to their views. It is possible therefore
that prior to the selection of the party‘s expert, several other possible experts
will have been consulted but rejected for not agreeing with the arguments
sought to be proven.
4.73 While this chosen expert may not be consciously prejudiced, there is
an inherent bias operating against the party‘s argument in circumstances where
it has been previously rejected by a large number of experts in the field, and
accepted by only one, a fact that remains hidden from the judge or jury. This
results in a situation whereby, according the Bernstein ―the jury will receive a
false sense that the issue is a very close one, when expert opinion actually
overwhelmingly favours one side.‖54
4.74 The courts have realised the potential problem of selection bias since
th
the 19 century. Jessel LJ in Abinger v Ashton pointed out;55
―There is also this to be said against them, namely, that their
evidence is not the evidence of fair professional opinion. The men
are selected according as their opinion is known to incline….The
consequence is you do not get fair professional opinion, but an
exceptional opinion by evidence selected in this way.‖
4.75 In the later case, Thorn v Worthing Skating Rink Co. 56 Jessel LJ
stated:

54
Bernstein ―Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the
Daubert Revolution‖ (February 2007). George Mason Law & Economics
Research Paper No. 07-11 Available at SSRN: http://ssrn.com/abstract=963461,
at 6.
55
L.R. 17 Eq. 358, 373 (1873).
56
(1877) 6 Ch D 415.

214
 ―A man may go, and does sometimes, to half-a-dozen experts. I have
known it in cases of valuation within my own experience at the Bar.
He takes their honest opinions, he finds three in his favour and three
against him; he says to the three in his favour, will you be kind
enough to give evidence? And he pays the three against him their
fees and leaves them alone; the other side does the same. It may not
be three out of six, it may be three out of fifty. I was told in one case,
where a person wanted a certain thing done, that they went to sixty-
eight people before they found one.‖
4.76 Selection bias is a direct result of the current system of appointment
of experts by the parties to a case. In the adversarial system, the judge‘s role is
the neutral overseer of the dispute between the parties. Both sides are given
the right to advance their arguments as best they can, which necessarily
involves retaining experts whose views are congenial to each party‘s version of
events. However, the desire to retain the advantages of the adversarial system
can lead to difficulties within the context of expert testimony.

E Conflicts of Interest
4.77 It has already been explained that one of the main causes of
deliberate bias, or the perception of this, is the existence of a relationship or
connection between one of the parties to proceedings and the expert. This can
be a personal relationship, as can be seen in Liverpool Roman Catholic
Archdiocese v Goldberg,57 or an affiliation with an organisation connected to
one of the parties, as in Toth v Jarman,58 and Mohammed v Financial Services
Authority59 or a financial relationship, such as those cases where the expert was
an employee of one of the parties for example Galvin v Murray.60
4.78 As discussed above, the courts are reluctant to hold that evidence of
a connection between a party and an expert leads to an automatic exclusion of
bias as it has been repeatedly explained that such a finding would significantly
reduce the pool of potential experts available in a given case, and lead to
considerably more delays and expense.
4.79 Galvin v Murray61 in this jurisdiction reiterated that a person is not
automatically excluded from being an expert by reason of employment by one

57
[2002] 1 WLR 237.
58
[2006] EWCA Civ 1028, [2006] All ER (D) 271 (Jul).
59
[2005] UKFSM FSM013 (18 January 2005).
60
[2000] IESC 78.
61
[2000] IESC 78.

215
of the parties. Here it was held that the existence of such a potential conflict of
interest should be a matter going to the weight to be accorded to the expert
evidence, and not a matter going to the admissibility. However, as already
mentioned, this case failed to deal with the extent of the obligation, if any, on a
party or a potential expert to disclose such a potential conflict of interest.
4.80 In England, the case of Toth v Jarman62 dealt with the issue of
whether or not an expert witness needed to disclose a potential conflict of
interest. In the course of this judgment the court recognised such conflict could
take many forms, including a financial interest, a personal connection or an
obligation such as a member or officer of some interested body.
4.81 Potter LJ found that a conflict of interest should not automatically
disqualify an expert, as the key question is not the existence of a conflict of
interest but whether the expert‘s opinion is independent. 63 However, the court
went on to state that a party who wishes to call an expert with a potential
conflict of interest should disclose details of that conflict at as early a stage in
the proceedings as possible. 64 Potter LJ explained the reasons for this
disclosure obligation:
―The obligation to disclose the existence of a conflict of interest in our
judgment stems from the overriding duty of an expert, to which we
have already referred and which is clearly laid down in CPR 35.3,
and also from the duty of the parties to help the court to further the
overriding objective of dealing with cases justly (CPR 1.3). The court
needs to be assisted by information as to any potential conflict of
interest so that it can decide for itself whether it should act in reliance
on the evidence of that expert.‖ 65
4.82 Having examined the extensive literature in this area, it is clear that a
major issue is whether there should be a mandatory requirement imposed on
any expert witness to disclose any potential conflict of interest. It can plausibly
be argued that this would go a long way towards reducing potential bias, or the
perception of such bias, and ensure that the court is given an informed
opportunity to evaluate the exact weight to accord to the evidence of a particular
expert. It can also be argued that such an obligation is not excessively onerous
given the wide discretion a party is given in the choice of expert from the outset.
The Commission now turns to consider whether such an approach should be

62
[2006] EWCA Civ 1028, [2006] All ER (D) 271 (Jul).
63
[2006] EWCA Civ 1028, [2006] All ER (D) 271 (Jul) at [100].
64
[2006] EWCA Civ 1028, [2006] All ER (D) 271 (Jul) at [102].
65
[2006] EWCA Civ 1028, [2006] All ER (D) 271 (Jul) at [113].

216
adopted and the consequential recommendations for reform that would flow
from this.

F Judicial Commentary on Bias and Partisanship

4.83 The courts well appreciate the potential for bias and deception on
behalf of experts and concern about the possible partiality or bias of expert
witnesses has formed the basis for many decisions and rules relating to the
admissibility of expert evidence. In many jurisdictions, there has been copious
judicial complaint about the effects that bias, prejudice, and mistaken belief that
an expert must act as the advocate of the instructing party, have had on the
giving of expert testimony.
(1) Ireland
4.84 Although there are few Irish cases where expert bias has been
expressly dealt with, the courts in this jurisdiction do take a strict approach
where such bias is detected.
4.85 In McG (P) v F(A),66 Budd J cited with approval the approach taken
by the English Court of Appeal in Thompson v Thompson.67 In that case, the
expert was a court appointed medical inspector appointed to examine the
parties‘ arguments to help the court decide on the husband‘s petition for an
annulment of marriage. The report of the medical examiner did not conflict with
the wife‘s argument. At the hearing, however, the expert gave evidence which
supported the husband‘s argument. It later emerged that the husband‘s
solicitors had had considerable contact with the medical inspector. As a result
the Court of Appeal rescinded the annulment as there had been communication
other than through the court which, as Budd J noted in the Irish case McG (P) v
F(A), ―gave the impression that something untoward had happened.‖
4.86 Similarly, in News Datacom v Lyons68 Flood J refused the plaintiff‘s
application for an interlocutory injunction stating that their case was based on
the evidence of a ‗partisan expert‘ without any scientific basis.
(2) Australia
4.87 A survey conducted in 1999 on Australian Judicial Perspectives on
Expert Evidence69 revealed significant numbers of the judges surveyed said

66
[2000] IEHC 11 (28th January, 2000).
67
Solicitors' Journal of 3rd February, 1961, Volume 105.
68
[1994] IEHC 1; [1994] 1 ILRM 450 (20th January, 1994).
69
Freckelton, Reddy & Selby Australian Judicial Perspectives on Expert Evidence;
an Empirical Study (Australian Institute of Judicial Administration, 1999).

217
they had experienced some form of bias or partisanship on the part of experts
coming before them in the Australian courts. The results amounted to
approximately 1 in 4 judges - 27% - saying they encountered bias ‗often,‘ and
67% considering that experts are ‗occasionally biased.‘ 70
4.88 Some of the individual comments of the judges were very critical of
expert witnesses. Sperling J commented:
―In the ordinary run of personal injury work and to a lesser extent in
other work, the expert witnesses are so partisan that their evidence in
useless. Cases then have to be decided on probabilities as best one
can.‖71
4.89 Similarly, Windeyer J in Clark v Ryan72 had the following view on
potential bias in expert testimony:
4.90 ―The acrid remarks in Taylor on Evidence concerning expert
witnesses do not lose significance when the expertise is spurious: ―These
witnesses are usually required to speak, not to facts, but to opinions; and when
this is the case, it is often quite surprising to see with what facility, and to what
an extent, their views can be made to correspond with the wishes or the
interests of the parties who call them.‖‖73
(3) England & Wales
4.91 The majority of the above mentioned cases demonstrating the major
causes and manifestations of bias in the context of expert testimony are cases
that come from the courts of England and Wales. This highlights a keen
understanding by the English courts about the strong possibility for bias, and
they have on numerous occasions expressly acknowledged this possibility. In
Abbey National Mortgages Plc v Key Surveyors Nationwide Ltd & Ors 74 the
Court of Appeal remarked:
4.92 ―For whatever reason, whether consciously or unconsciously, the fact
is that expert witnesses instructed on behalf of parties to litigation often tend to

70
These are a summary of the results of the survey as outlined by Williams
―Accreditation and Accountability of Experts‖ Paper presented at the Medico-
Legal Conference (Gold Coast, 5 August 2000).
71
Sperling J in ―Expert Evidence: The Problem of Bias and Other Things‖ (2000) 4
JR 347.
72
(1960) 103 CLR 486.
73
Clark v Ryan (1960) 103 CLR 486 at 510.
74
(1996) EGCS 23.

218
espouse the cause of those instructing them to a greater or lesser extent, on
occasion, becoming more partisan that the parties.‖ 75
4.93 This widespread concern that experts were acting in a partisan
fashion and were failing to maintain their independence from the instructing
party was one of the major instigators of the Woolf reforms. In his 1995 Interim
Report Access to Justice Lord Woolf summarised the inherent difficulty:
―Most of the problems with expert evidence arise because the expert
is initially recruited as part of the team which investigates and
advances a party's contentions and then has to change roles and
seek to provide the independent expert evidence which the court is
entitled to expect….
In many cases the expert…has become, in the words of the
submission of the London Solicitors' Litigation Association to the
Inquiry, ―a very effective weapon in the parties' arsenal of tactics.‖ 76
4.94 The above mentioned cases also demonstrate that the courts in
England and Wales are vigilant in their detection and desire to eradicate bias.
This rigorousness is well demonstrated in Cala Homes (South) Ltd & Ors v
Alfred McAlpine Homes East Ltd.77 Here expert evidence was refused where
bias was found to exist, even though it was located in a source exterior to the
issues involved in the case. Laddie J castigated the evidence of the defence
expert witness, a Mr. Goodall, which he deemed to be nothing but a ―partisan
tract.‖
4.95 It is interesting that the basis for the criticisms for the expert in this
case was not that his actual evidence displayed partisanship, but rather an
article written by the expert prior to the case in the Journal of the Chartered
Institute of Arbitrators in 1990 entitled ―The Expert Witness: Partisan with a
Conscience.‖78 In this article, which was revealed in Cala Homes during cross-
examination, the expert had outlined what he perceived to be a legitimate
approach for an expert witness to take when creating an expert report.
4.96 Goodall argued that just as the person operating the Three Card
Trick is not cheating, as those who opt to challenge him are ‗fair game,‘ an

75
Cited in: McConnell ―Strange Bedfellows in the Witness Box‖ (1996) NLJ 1746 at
1749.
76
Woolf, Access to Justice (Interim Report to the Lord Chancellor on the civil justice
system in England and Wales, HMSO, London, 1995) Ch. 23 at [5].
77
[1995] EWHC 7 (Ch) (06 July 1995).
78
Goodall ―The Expert Witness: Partisan with a Conscience‖ (1990) Journal of the
Chartered Institute of Arbitrators.

219
expert witness who, through ―pragmatic flexibility‖ plays down or omits some
material consideration in order to present the data more favourable to the
instructing side does nothing wrong, as it is ―only a suggestion about the data,
not an outright misrepresentation of them.‖ He was thus of the view that the
expert‘s work required him to be a ―candid friend‖ and a ―hired gun‖ to the
instructing party.79
4.97 In Cala Homes Laddie J strongly criticised this approach as being
completely wrong and put forward a weighty counter-argument based on an
alternative interpretation of the role and duty of an expert witness. He argued
that the ―function of a court of law is to discover the truth relating to the issues
before it.‖ Therefore the judge is not someone who has opted to play a game of
Three Card Trick. ―He is not fair game. Nor is the truth.‖ He acknowledged that
a party is likely to choose an expert whose view reflects that of the party, but at
the same time that ―the court is likely to assume that the expert witness is more
interested in being honest and right than in ensuring that one side or another
wins.
4.98 He rejected Goodall‘s view of the expert as a hired gun, concluded
that evidence he sought to give in the case at hand could not be the
independent unbiased product it purported to be and was in fact drafted with the
objective of furthering the defence case by ignoring anything that harmed that
objective. He continued:
―Most witnesses would not be prepared to admit at the beginning of
cross examination, as Mr. Goodall effectively did that he was
approaching the drafting of his report as a partisan hired gun. The
result is that the expert's report and then his oral evidence will be
contaminated by this attempted sleight of mind. This deprives the
evidence of much of its value. I would like to think that in most cases
cross-examination exposes the bias. Where there is no cross-
examination, the court is clearly at much greater risk of being
mislead.‖80
4.99 Laddie J also acknowledged in this case that it is rare that an expert
will express an outright intention to give evidence that was biased in favour of
the instructing party, but the extracts from the article are disconcerting if one is
to assume that many experts, even those well-acquainted with the giving of

79
Goodall ―The Expert Witness: Partisan with a Conscience‖ (1990) Journal of the
Chartered Institute of Arbitrators.
80
Per Laddie J Cala Homes (South) Ltd & Ors v Alfred McAlpine Homes East Ltd
[1995] EWHC 7 (Ch) (06 July 1995).

220
expert testimony, view their role in such terms.81 In this respect, this judgment is
to be commended as it enabled the court to firmly endorse that evidence of
partisanship will not be tolerated and to reiterate clearly that the overriding duty
of the expert is the provision of independent evidence to the court to enable it in
its fact-finding role.
4.100 The consequences of a finding of bias on the part of an expert were
discussed to some extent by Jacob LJ in Pearce v Ove Arup Partnership Ltd &
Ors.82 In this case the court rejected as ―preposterous fantasy‖ the claimant‘s
allegation that the defendant – a world famous architect – had plagiarised a
design used in one of his works from the claimant‘s final year project.
4.101 In the course of the judgment Jacob LJ gave a scathing criticism of
the claimant‘s expert witness, finding that his ―expert‖ evidence fell far beyond
the standards of objectivity required of an expert witness. 83 He outlined in great
detail the ―blunder after blunder‖ made by the expert witness and continued;
―So biased and irrational do I find his ―expert‖ evidence that I
conclude he failed in his duty to the court….. He came to argue a
case. Any point which might support that case, however flimsy, he
took. Nowhere did he stand back and take an objective view as an
architect as to how the alleged copying could have been done. Mr
Wilkey bears a heavy responsibility for this case ever coming to trial -
with its attendant cost, expense and waste of time, including Mr
Koolhaas‘ loss of professional time.‖84
4.102 Jacob LJ then went on to consider the consequences of a finding that
an expert had breached his duty. He acknowledged that there is no rule
providing for specific sanctions in such cases, nor does a specific accrediting
body exist to whom an expert could be referred. However, he found that there is
―no reason no reason why a judge who has formed the opinion that an expert
had seriously broken his Part 35 duty should not, in an appropriate case, refer
the matter to the expert's professional body if he or she has one.‖
4.103 Jacob LJ therefore appeared quite ready to take proactive measures
to sanction an expert for displaying evidence of partisanship in the giving of his

81
In the course of his judgment, Laddie J referred to the fact that Mr. Goodall had
been called upon to give expert evidence in over 120 proceedings in litigation or
arbitration. (Cala Homes (South) Ltd & Ors v Alfred McAlpine Homes East Ltd
[1995] EWHC 7 (Ch) (06 July 1995).
82
[2001] EWHC Ch 455 (2nd November, 2001).
83
[2001] EWHC Ch 455 (2nd November, 2001) at [58].
84
[2001] EWHC Ch 455 (2nd November, 2001) at [60].

221
expert testimony. It is submitted that the threat of such sanctions could help to
reduce the prevalence of such bias. Other ways in which this might be
accomplished will now be outlined.

G Ways to Reduce Possibility of Bias

4.104 There are two discernible lines of thought on the presence of bias in
the current system of expert testimony. The first is that although prevalent, the
current adversarial structure is competent to detect the presence of bias and
partiality, and therefore no changes are necessary.
4.105 The alternative view is that the current structure is not only
inadequate in detecting bias, but furthermore that it is the inherent structure of
the system that encourages experts to become partisan hired guns. The many
concrete examples where courts have actively detected expert bias and
partisanship discussed above add to the argument in favour of reform, as it
would appear that the presence of expert bias, as the situation stands, remains
a distinct reality.
(1) Argument One: The Current Adversarial Expert Testimony
System is Adequate to Combat Bias
4.106 The above mentioned cases all reveal the courts to be alive to the
issue of detecting bias, and although there have been notorious miscarriages of
justice these are rare, with most partisanship being exposed before or during
the trial process. There is therefore a strong argument to be made that there are
sufficient safeguards in the existing structure of the adversarial system that are
more than competent to detect the presence of partiality of an expert.
(a) Experience & Vigilance of the trial Judge
4.107 First, it is argued, the trial judge will normally have many years of
experience in evaluating the appropriate weight to accord to evidence and in
assessing the authenticity and motivations of the experts. The judge is therefore
well placed to consider any expert evidence coming before the court, and where
necessary to direct that little weight be given to an expert‘s evidence, or in some
cases, strike out the expert‘s testimony entirely.
4.108 Brandon LJ made reference to the strong capability of trial judges to
detect bias during the trial in Joyce v Yeomans85 where he said:
―In my judgment, even when dealing with expert witnesses, a trial
judge has an advantage over an appellate court in assessing the
value, the reliability and the impressiveness of the evidence of the
experts called on either side. There are various aspects of such

85
[1981] 1 WLR 549.

222
 evidence in respect of which the trial judge can get the 'feeling' of a
case in a way in which an appellate court, reading the transcript,
cannot. Sometimes expert witnesses display signs of partisanship in
a witness box or lack of objectivity. This may or may not be obvious
from the transcript, yet it may be quite plain to the trial judge.
Sometimes an expert witness may refuse to make what a more wise
witness would make, namely, proper concessions to the viewpoint of
the other side. Here again this may or may not be apparent from the
transcript, although plain to the trial judge. I mention only two aspects
of the matter, but there are others.‖86
4.109 However, the danger remains that once any evidence is brought
before the jury, despite subsequent judicial directions to accord it little or no
weight, the jury may find it difficult to do so. As a result, it would appear that
preventing bias prior to the trial process is what is necessary to more fully
eradicate the possibility of bias. This would seem to encourage a process
whereby the admissibility of all expert testimony be considered at a pre-trial
stage.
(b) Examination-in-Chief and Cross-Examination
4.110 Second, under the current structure of the adversarial system, both
parties are free to select the expert they wish and, in the interests of promoting
the ‗ equality of arms‘ principle, both sides are entitled to cross examine the
other party‘s expert.87 As Hardiman J stated in JF v DPP:88
―…it is not only common but routine for civil or criminal parties
against whom expert or professional evidence is to be deployed to
explore that evidence with the aid of experts retained on their own
behalf, and where possible to counter it with the oral evidence of
such persons.‖
4.111 Therefore all parties to litigation are given equal opportunity to enlist
the aid of experts. It can be argued that these experts are best placed to discern
the presence of bias, as they are less likely to be blinded by science than the
judge or jury, and thus more likely to detect if an expert opinion has been more

86
[1981] 1 WLR 549 at 556.
87
See JF v DPP [2005] IESC 24 (26 April 2005); McGrory v Electricity Supply Board
[2003] IESC 45 (24 July 2003); Law Society of Ireland Litigation Committee
―Medico-Legal Recommendations‖ (September 2003) Available at:
https://www.lawsociety.ie/newsite/documents/Committees/medicolegal.pdf.
88
[2005] IESC 24 (26 April 2005).

223
motivated by sympathy for the instructing party than a rational analysis of the
facts of the case.
4.112 Hardiman J acknowledged this where he explained that the reasons
for adducing an expert on the other side include ―to counter any unconscious
sympathy with one‘s own patient or client‖ and ―to detect any unwarranted
assumptions or conclusions.‖89 Cala Homes (South) Ltd & Ors v Alfred
McAlpine Homes East Ltd, discussed above,90 is a good example of where
cross-examination was used to reveal the expert‘s potential bias where an
article written by the expert in question was adduced by the other party which
Laddie J used as the basis for a finding that the expert wrote his report as ―a
partisan hired gun.‖91
(c) Disclosure Rules & Modification of Litigation Privilege
4.113 The Rules of the Superior Courts (Disclosure of Reports and
Statements) 1998 (SI No 391 of 1998) require that both parties must disclose all
reports and statements of experts whom they intend to call as witnesses, and
those containing the ‗substance of the evidence to be adduced‘ by them. The
interpretation given to this provision by the Supreme Court in Payne v Shovlin92
means that all reports, including preliminary expert reports not adduced at trial,
must be disclosed.
4.114 These rules will be discussed in greater detail in Chapter 6 but for the
purposes of the present discussion, it is submitted that in the context of
reducing bias the rules are very significant, as they ensure that the thought
processes of the expert witnesses in coming to their opinion are available to the
other side for scrutiny. This requires an expert to demonstrate their reasons for
reaching a particular opinion which greatly limits the potential for an
unreasoned, prejudiced opinion.
(2) Argument Two: There is a need for the Amendment of the
Adversarial Structure
4.115 The structure in place for the giving of evidence within the adversarial
model is designed to give a rounded view of the facts in a particular case, by
allowing both sides to express their own opinion. In JF v DPP93 Hardiman J

89
[2005] IESC 24 (26 April 2005).
90
[1995] EWHC 7 (Ch) (6 July 1995).
91
[1995] EWHC 7 (Ch) (6 July 1995).
92
[2006] IESC 5 (9 February 2006).
93
[2005] IESC 24 (26 April 2005).

224
explained that the purpose of allowing both sides to adduce their own experts is
to more fully inform the court in order to obtain a clearer idea of the truth:
―It is done to ensure that everything is taken into account, to counter
any unconscious sympathy with one‘s own patient or client, to ensure
that the latest techniques and interpretations are brought to bear, to
detect any unwarranted assumptions or conclusions and to test and
challenge the other side‘s expert opinion insofar as that can properly
be done.‖94
4.116 However, it has been recognised by many commentators that system
of the giving of expert evidence does not fit in well with the adversarial model
and that in this way expert evidence is being used as a ―weapon‖ by litigators.95
4.117 As Lord Woolf stated in his 1996 Final Report Access to Justice,
which led to the introduction of the Civil Procedure Rules in England:
―The purpose of the adversarial system is to achieve just results. All
too often it is used by one party or other to achieve something which
is inconsistent with justice by taking advantage of the other side‘s
lack of resources or ignorance of relevant facts or opinions.‖ 96
4.118 Others argue that the inherent structure of the adversarial system is
conducive to the prevalence of all forms of bias. Tompkins explains;
―…our system is adversarial. It is not an exercise in consensus
building, nor does it operate by consensus….what is being sought is
not the absolute or universal truth, but the rather different goal of
justice between the parties. Bias on the part of the parties and their
lawyers is accepted, at least to a limited extent. Independence on the
part of expert witnesses is expected, but not universally.‖ 97
4.119 It is argued that in reality, it is rare that the court will be presented
with an objective overview of relevant information, as both sides will seek to
present those facts most favourable to his or her case. Langbein expressed a
very cynical view of expert witnesses when he stated;
If we had deliberately set out to find a means of impairing the
reliability of expert testimony, we could not have done much better

94
[2005] IESC 24 (26 April 2005).
95
Woolf, MR Lord (1996) Access to Justice, Final Report, HMSO at ch 13.7.
96
Woolf, MR Lord (1996) Access to Justice, Final Report, HMSO at ch 13.7.
97
Tompkins J ―The Disconnect between Scientific and Legal Method‖ Paper
delivered at the Legal Research Foundation Conference The Role and Use of
Expert Witnesses in Trials (7 November 2002).

225
 than the existing system of having partisans prepare witnesses in
advance of trial and examine and cross-examine them at trial.‖98
4.120 A very fitting demonstration of the extent to which the court will
assume bias in the adversarial setting, or at least some sort of influence from
the instructing side, was given in the second appeal in R v Clarke.99 Amongst
the various medical expert witnesses called for both sides here was a doctor
who, it was explained in court, had originally been hired by the Family Court to
carry out an independent review, as the appellant had since had a third child.
This review favoured the defence who then requested to rely on his evidence.
Kay LJ in the appeal made the following interesting comments;
―Recording these matters is not in any way to suggest that other
experts did not do their best to give evidence which was independent
of the side that instructed them but the value of an expert free from
any influence, however innocently manifesting itself, cannot be
discounted.‖100
4.121 As can be seen the evidence of this ‗free from influence‘ expert was
highly commended by the court. However, if the experts for both sides were
truly regarded as likely to carry out their duty to remain independent, it should
not matter for which side they are giving evidence. This decision shows a keen
understanding that, whether consciously or not, this will not always occur and
an expert is likely to be influenced, to some extent at least, by their instructing
party.
4.122 Academic commentators who have written about the problem of bias
have outlined a number of suggestions for reform aimed at reducing the
presence of bias, either deliberate or unintentional, in the giving of expert
testimony.
4.123 These reforms will be discussed in greater detail in the following
chapters, however, it is useful to briefly flag them here.
(a) The Single Joint or Court Appointed Expert
4.124 One of the principal reforms suggested to counter the possibility of
bias, particularly selection bias, is the introduction of a system whereby a single
expert is appointed either by the court, or by agreement between the two
parties. Dwyer explains the reasoning behind this suggested solution:

98
Langbein ―The German Advantage in Civil Procedure‖ (1985) 52 U. Chic. LR 823
at 832.
99
[2003] EWCA Crim 1020.
100
R v Clark EWCA Crim 1020 (11 April 2003) at (40).

226
 ―Since expert bias currently arises from favouring the case of the
instructing party, then by removing the instructing party from the
equation bias will also be removed.‖101
4.125 Such a structure, it is argued, will ensure that the appointed experts
will be representative of the mainstream view of the range of experts in a
particular area, rather than the possibly minority view of a particular party
expert. It would also remove the likelihood of an expert feeling they owe an
allegiance to the instructing party due to the fact that they are being paid by
them, or due to the fact that they have become unduly sympathetic to their
party‘s arguments as a result of the amount of time spent with them. Such a
reform would also eliminate the possibility of selection bias, or ‗expert shopping‘
and, also reduce the possibility of potential conflicts of interest.
4.126 Several common law jurisdictions have recommended that the
current adversarial system of party-appointed experts be replaced by such a
system. The advantages and disadvantages of a system of court appointed
experts, or a joint expert appointed by agreement between the parties, will be
discussed in greater detail in the following chapter.
(b) Prohibition on the Giving of Expert Evidence by Experts who
have a Pre-Existing Relationship with one of the Parties
4.127 Another reform suggested by many commentators aimed at reducing
the bias generated by an expert feeling they owe an allegiance to their
instructing party, is the reduction, as far as possible, of any opportunities for
personal involvement.102 This could involve for example preventing an expert
from giving evidence where they have a pre-existing relationship or other type
of personal involvement with the party to a case or with the issues involved in a
case.
4.128 However, we have seen in Galvin v Murray103 that the Irish courts
have decided that the fact of a pre-existing relationship with a party such as an
employer-employee relationship should not represent an automatic bar on the
giving of expert evidence. Instead, the fact of employment is to be taken into
account when assessing the weight to be given to the evidence.
4.129 The approach in Galvin, it is submitted, is the correct approach to
take. Requiring a completely independent expert in all circumstances may

101
Dwyer ―The Effective Management of Bias in Civil Expert Evidence‖ (2007) 26
CJQ 57.
102
See Dwyer ―The Effective Management of Bias in Civil Expert Evidence‖ (2007)
26 CJQ 57 at 70 for more on this suggested reform.
103
[2000] IESC 78.

227
significantly aggravate the costs of litigation, and there is little certainty that
such ‗independent‘ experts are likely to be any less biased. Furthermore,
particularly in this jurisdiction where in certain subject areas, the existing pool of
experts is likely to be quite small, any potential reform that is likely to further
decrease the number of possible experts is to be avoided. A better approach is
to examine the pre-existing relationship in the context of the weight to be placed
on the evidence.
4.130 However, one reform in this vein which may have the desired result
of limiting the development of an unhealthy affiliation between an expert and his
instructing party without reducing the possible pool of experts is the introduction
of a restriction on the amount of time an expert spends in court, limiting court
appearance to that reasonably necessary to give their testimony.
4.131 In the light of this discussion the Commission can now set out its
provisional recommendations in this area.
4.132 The Commission provisionally recommends that there should not be
a prohibition on the giving of evidence by experts who have a pre-existing
relationship with one of the parties to an action.
4.133 The Commission provisionally recommends that an expert witness
should be obliged to disclose the existence of any pre-existing relationship with
a party to a case or any other potential conflict of interest.
4.134 The Commission also provisionally recommends that the court
should be encouraged as far as possible to limit the amount of time spent by an
expert witness in court to that which is reasonably necessary to give their expert
evidence.
(c) Amendment of the Duty owed by Experts to the Court & Their
Instructing Party
4.135 The Commission accepts that, regardless of any proposed
amendments, where an expert is selected and remunerated by a particular
party, they may, even unconsciously, be inclined to give evidence that is
favourable to that party. In this respect, it may be appropriate to instruct experts
that their overriding duty remains to the court, and that they must not omit from
their evidence any relevant facts which may have a bearing on their case,
whether or not they support or detract from the argument that the party is
attempting to put forward. It may also be appropriate to further instruct the
experts that they are simultaneously entitled to do all that is reasonably possible
to put forward their instructing party‘s argument in the most favourable light
possible.
4.136 The Commission provisionally recommends that there should be no
change to the overriding duty owed by the expert witness to the court. The

228
Commission also provisionally recommends that the expert witness should
continue to owe a duty to the court which supersedes any duty owed to the
instructing party.
(d) Greater Training & Education of Experts about their Role &
Duties
4.137 As discussed in the previous chapter, there is currently little judicial
or legislative guidance for expert witnesses in this jurisdiction about the extent
of their role and function. In the absence of such guidance, one can forgive an
expert witness who is under the mistaken belief that they must act as the
advocate of their instructing party.
4.138 Therefore, the imposition of additional emphasis on the role and
duties of an expert, for example through the creation of a formal code of ethics
for expert witnesses, would go a long way towards ensuring that experts are
aware, at the time they agree to act as an expert witness, of their overriding
duty to the court and the necessity to remain independent and impartial at all
times.104 Another solution to this would be to require all expert witnesses to
undergo specialist training with a specialist accredited body to ensure that all
experts are fully aware of the essentials of their role and function. The
Commission discusses the possibility of introducing a system of training and
accreditation for expert witnesses in Chapter 6.

H Conclusion
4.139 It is clear from the foregoing that bias has proved to be a real and
tangible problem in the giving of expert testimony in this jurisdiction. Such bias
can take a number of forms and its causes are diverse, making its elimination
more problematic.
The Commission considers that, although the current adversarial system
contains strong safeguards to detect and prevent the prevalence of bias in the
context of expert testimony, there are a number of reform options that could be
introduced to further reduce the potential for bias. These potential reforms are
discussed in the following chapters. The range of options for the appropriate
course of action to be taken where an expert has found to be biased are
discussed in Chapter 6. Other reforms, more procedural in nature, but which
may have the effect of reducing the potential for bias are discussed in the next
chapter.

104
This is also the approach advocated by Morris J in Morris ―Getting Real About
Expert Evidence‖ (2006) Paper delivered at the Dealing with Expert Witnesses
Seminar hosted by the Victorian Planning and Environmental Law Association (16
November 2006).

229
5

CHAPTER 5 PROCEDURAL ASPECTS OF THE GIVING OF

EXPERT TESTIMONY

A Introduction
5.01 The previous chapters have discussed a range of possible reforms in
terms of the substantive nature of what constitutes expert evidence and what
constitutes an expert for the purposes of expert witnesses.
5.02 However, a comparative analysis of other jurisdictions reveals that
there are many reforms of a procedural nature, some radical and some
relatively minor, that may have a very beneficial impact on the current system of
expert testimony in terms of improving access to the courts and limiting delays,
expense and the possibility for abuse of the system.
5.03 This chapter commences in Part B by explaining why there is a need
for procedural as well as substantive reform of the expert testimony structure.
5.04 Part C examines a range of provisions that could be introduced to
facilitate and improve on arrangements relating to the selection and
appointment of expert witnesses.
5.05 Part D examines provisions which govern communication between
expert witnesses for both parties to a case, and between an expert witness and
the court and suggest reforms in this context which have the aim of greater
understanding between the parties and amongst the experts and thus reduce
the possibility of misunderstandings and delays.
5.06 Part E examines the provisions governing the report that will be
created by an expert witness containing their expert opinion. Finally Part F
examines some of the alternative structures to party appointed experts that are
used in other jurisdictions and the merits of adopting an alternative structure are
considered.

B The Need for Procedural Reforms

5.07 Some of the criticisms levelled at the current system of expert
testimony have been alluded to in previous chapters. Problems such as
unreliable evidence and biased experts need to be addressed by the
introduction of substantive changes in the admissibility requirements governing
the use of experts in court.

231
5.08 However, other criticisms about the expert testimony system have
also been raised, which, it can be considered, necessitate the introduction of
procedural changes such as improved case management and structural
reforms.
(1) Expense
5.09 One of the main complaints raised about expert evidence is that, as
Lord Woolf put it, it is one of the ―major generators of unnecessary cost in civil
litigation.‖1 This was one of the principal reasons for his suggestion that expert
evidence should come under the complete control of the court. As Lord Woolf
pointed out:
―Look at statistics about the average cost of hiring an expert witness
and the reality that this can lead to an unfair advantage for some
parties, particularly where large companies are engaging in litigation
with individuals.‖
5.10 The fees charged by experts have also been the subject of much
commentary. It has been recognised that experts can charge exorbitant fees for
their services, which can affect the ability of parties to litigation to access the
necessary expertise. In 2004, Howlin summarised then recent Irish statistics on
the cost of expert witnesses;
―It was recently estimated that criminal legal aid cost the State
€37.35million in 2003, some €10 million of which was spent on expert
witness fees. This represents a jump of almost 30% from the
previous year.2 Payments to expert witnesses represent a significant
drain on the State‘s resources with respect to the numerous tribunals
of inquiry. In 2000, the Minister for Health and Children, agreed to
provide £300,000 inclusive of VAT to assist the Haemophilia Society3
of Ireland in retaining medical, scientific and technical experts to
advise it during the course of the Haemophilia Tribunal. In motor
insurance cases, it has repeatedly been asserted that lawyers‘ and
experts‘ fees account for 40% of the amount awarded.4 It is claimed
that these expenses are major factors in the escalating costs of
motor insurance.5

1
Lord Woolf Access to Justice, Final Report, HMSO (1996).
2
The Irish Examiner, 30 June 2004.
3
518 Dáil Debates, col. 164 (18 April 2000).
4
165 Seanad Debates, col. 1538 (29 March 2001), per Senator Glennon.
5
Howlin ―Special Juries: A Solution to the Expert Witness?‖ (2004) 12 ISLR 19 at
25-26.

232
5.11 A recent survey of the UK Register of Expert Witnesses revealed that
medical expert witnesses, who make up the majority of expert witnesses
coming before the courts, seek on average £171 per hour for the creation of an
expert report, and £1,163 per day for a court appearance.6
5.12 Expert evidence, viewed from the perspective of its cost, is a
powerful weapon which can be used by litigants to take advantage of the lack of
resources of impecunious litigants, and their resulting ignorance of relevant
facts or opinions.
5.13 High expenses can impose a significant barrier to potential litigants,
or may greatly stifle their claim, particularly in personal injuries cases, where
one may not have the same resources available as the other party, who is often
a corporate entity. The same problem arises in the context of family law cases
where the parties are predominantly private individuals and the ability or inability
to adduce expert evidence can have a significant effect on the outcome of the
case.
5.14 As a result, any reforms that are likely to reduce the cost burden of
expert testimony, thus reducing the possibility of biased experts enticed by
exorbitant fees and also promoting access to justice to all potential litigants, are
to be welcomed.
(2) Delay
5.15 The point has been raised on numerous occasions that a proliferation
of experts in court can lead to a situation where litigation is unreasonably
prolonged by expert witnesses giving lengthy evidence on issues that are not
contested by the other party.
5.16 The expert is also required to prove their expertise in court by
outlining their relevant experience and qualifications. If this is not contested by
the other party it could be considered a waste of time within the trial setting and
might be more appropriately determined prior to the trial. 7
5.17 Furthermore, there is the possibility that, in the absence of any
reliability requirement for admissibility, an expert witness may seek to use the
trial process as a way of advancing novel theories or ideas. New or emerging
forms of expertise are always likely to be the subject of much contention and
experts for the other party are likely to contest such theories strongly.

6
UK Register of Expert Witnesses ―Your Witness Newsletter‖ (No 49 Sept 2007,
JS Publications) at 2.
7
See the Commission‘s comments at paragraph 3.66, above, to the effect that the
actual qualifications of an expert are not, in practice, often challenged.

233
5.18 There is the possibility that such contentious claims, which are
unlikely to form the subject matter of the central issues of the case, will develop
into a ‗trial within a trial‘ situation, both generating much confusion for the judge
and jury and leading to long drawn out court proceedings.

C Selection, Appointment and Examination of Experts

5.19 A party to litigation will be entitled to enlist the aid of an expert
witness once the presiding judge is satisfied that the issue is one which
necessitates expertise and the individual in question is suitably qualified to be
considered an expert. Beyond this however there is little judicial or statutory
control or guidance on the admission of expert witnesses. The decision to
adduce expert evidence and the choice of expert are completely within the remit
of the individual party.
5.20 Many expert witnesses will be recruited through word of mouth,
where they have given evidence in cases similar to the one in question. Lists of
available experts are also available in directories such as the commercially-
published Expert Witness Directory of Ireland. Furthermore, many professionals
also advertise their services as including the capacity to give expert evidence
on their companies‘ websites.
5.21 The terms and conditions governing the appointment of such experts,
and the instructions they are given will be determined by the instructing party. It
can be argued however, that in the interests of maintaining high standards of
expert evidence across the board, there should be some governing principles
followed by all parties when hiring experts.
(1) Disclosure of Intent to Adduce Expert Evidence
5.22 At present although it is a matter for the court whether expert
evidence can be adduced, in reality once a party can demonstrate a need for
expert evidence in the circumstances the court will not stand in the way of a
party who wishes to adduce expert evidence.
5.23 In recent times there have been some statutory amendments
requiring a party to disclose intent to adduce expert evidence. The disclosure
requirements differ depending on whether it is a civil or criminal case.
(a) Civil Cases
5.24 Section 45 of the Courts and Court Officers Act 1995 grants further
powers to the Superior Courts and Circuit Court Rules Committees to make
orders relating to disclosure in personal injuries actions. Pursuant to section 45
of the 1995 Act, Order 39 Rule 46 of the Rules of the Superior Courts 1986
provides;

234
 ―The Plaintiff in an action shall furnish to the other party or parties or
their respective solicitors (as the case may be) a schedule listing all
reports from expert witnesses intended to be called within one month
of the service of the notice of trial in respect of the action or within
such further time as may be agreed by the parties or permitted by the
court.
(b) Criminal Cases
5.25 Although the prosecution is required to furnish the defence, prior to
the trial, with details of all witnesses intended to be called in the course of the
trial, the defence is not, subject to a few exceptions, required to furnish such
information.8
5.26 The 2007 Report of the Balance in the Criminal Law Review Group
recommended in their Final Report that the defence be required to furnish
statements of the expert or technical reports, or witness statements of experts,
which they propose to rely upon in court. 9
(2) Court Permission to Adduce Expert Evidence

5.27 As already mentioned, the permission of the court is necessary

before a party will be allowed to adduce expert evidence. However, in practice,
each party will enlist the aid of as many experts as they consider necessary and
it will be only at the trial stage that the court will, if it considers necessary, rule
that a particular expert should not be permitted to give evidence, either because
the evidence sought to be given is outside that which expert evidence is
permitted to be given, or because the witness put forward is not suitably
qualified to be considered an expert.
5.28 There is therefore, no requirement that a party seek formal court
approval prior to appointing an expert witness to give evidence. In other
jurisdictions, however, it is seen as important that express court permission be
required.

8
Balance in the Criminal Law Review Group Final Report (15 March 2007,
Department of Justice, Equality and Law Reform) Available at:
http://www.justice.ie/en/JELR/Pages/Balance_in_criminal_law_report, at 167.
9
Balance in the Criminal Law Review Group Final Report (15 March 2007,
Department of Justice, Equality and Law Reform) Available at:
http://www.justice.ie/en/JELR/Pages/Balance_in_criminal_law_report, at 173. At
the time of writing, the recommendations of the Review Group are under
consideration by Government and the Commission does not therefore propose to
make any specific recommendation on this matter.

235
5.29 Such a rule would be beneficial in the context of case management
as it would enable the court to retain a certain degree of control over the
quantity of expert evidence in litigation and thus help save time and costs for
parties.
5.30 In other jurisdictions, statutory provisions expressly provide that court
permission is needed by a party in order for an expert witness to be permitted to
give evidence.
(a) England
5.31 In civil cases, Rule 35.4(1) of the Civil Procedure Rules 199810
provides that no party may call an expert or put in evidence an expert‘s report
without the permission of the court. Any party seeking to reply on expert
evidence must identify the field in which expert evidence is sought to be relied
on, and where practicable identify the name of the expert.11
5.32 In criminal cases, Part 24 of the Criminal Procedure Rules requires a
party wishing to adduce expert evidence in both the Magistrates and Crown
Court to give notice to the other party of the contents of such evidence. Where
no such notice is given, expert evidence can only be adduced if the court gives
its permission.12

10
This replaced Order 38 Rule 36 Rules of the Superior Courts 1962 which
provided that expert evidence could be adduced by agreement between the
parties or with leave of the court.
11
Civil Procedure Rules 35.4.2.
12
The 2001 Auld Report also recommended that the criminal court‘s power to
control the admission of expert evidence should be formalised in the new Criminal
Procedure Rules and also recommended that judges and magistrates rigorously
apply the newly introduced test governing their power and duty to admit expert
evidence: Auld A Review of the Criminal Courts of England and Wales by The
Right Honourable Lord Justice Auld (September 2001) at Ch 2.2.

236
(b) Family Court of Australia
5.33 The approach taken in England to court permission to give expert
evidence was followed in the Family Court of Australia in the Family Law Rules
2004. Part 15.5 requires the court to consider if expert evidence is necessary in
the circumstances, and if so, if the submitted expert is appropriate to give such
evidence.
5.34 Rule 15.52 sets out the relevant information that a party must provide
in their application to adduce expert evidence, 13 and it also gives a
comprehensive list of factors that the court must consider when deciding
whether or not to permit the expert to give expert evidence.
5.35 Such factors include the purpose behind Part 15.5, the impact the
appointment of an expert witness would have on the costs of the case, the
likelihood of the appointment expediting or delaying the case, the issues in the
case and their complexity, whether the evidence should be given by a single
expert witness rather than an expert witness appointed by one party only, and
the extent of the expert witnesses‘ specialised knowledge, based on the
person‘s training, study or experience.14
5.36 This provision provides very useful guidance to the court and
provides a firm checklist on which to base the court can base its decision to
admit expert evidence.
(c) New South Wales
5.37 In its Report on Expert Witnesses, the Law Reform Commission of
New South Wales recommended the introduction of a ‗permission rule‘ which
would require express permission from the court before evidence can be given.
The Commission argued that such a rule would:
―….assist in ensuring that the importance of the courts‘ control expert
evidence is unequivocally expressed and widely understood, and

13
This includes (a) whether the party has attempted to agree on the appointment of
a single expert witness with the other party and, if not, why not; (b) the name of
the expert witness; (c) the issue about which the expert witness‘s evidence is to
be given; (d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert; (f) the expert witness‘s training,
study or experience that qualifies the expert witness as having specialised
knowledge on the issue; and (g) whether there is any previous connection
between the expert witness and the party. (Family Law Rules 2004 (Cth) r
15.52(1)).
14
Family Law Rules 2004 (Cth) r 15.52(2).

237
 thereby encourage the close judicial management of expert
evidence.‖15
5.38 The New South Wales Law Reform Commission also argues that
such a rule would ensure that any gaps in existing provisions relating to expert
evidence would be filled, affirming the court‘s ultimate control over the
admissibility of such evidence where any uncertainty arises. 16
5.39 In civil cases, Division 2 of the Uniform Civil Procedure Rules
introduced in 2005 now contains provisions relating to this. Rule 31.19 provides
that a party seeking to adduce expert evidence ―must promptly seek court
directions in that regard.‖ 17 Rule 31.17 sets out that one of the main purposes of
Division 2 is to ensure that the court has control over expert evidence.
(d) Conclusion
5.40 In light of the above discussion, the Commission sees merit in a
requirement, similar to that of the Family Court of Australia, that court
permission is expressly required before a party can adduce expert evidence,
but would prefer at present to invite submissions on the desirability of
introducing a general requirement to that effect.
5.41 The Commission invites submissions on whether there should be a
general requirement that court permission is expressly required before a party
can adduce expert evidence.
(3) Pre-Trial Determination of Admissibility of Expert Evidence and
of Expertise
5.42 It has been noted earlier that deciding whether or not to allow expert
evidence on a particular issue, and whether a person put forward by a party to
act as an expert witness has sufficient skills and qualifications to be considered
an expert, are matters for the presiding judge during examination in chief. An
individual‘s alleged expertise can be further challenged by the other party during
cross examination.
5.43 It can be argued that, in the interests of effective case management,
deciding whether expert evidence is necessary in relation to the issues in
question, and whether a person purporting to act as an expert witness is
sufficiently competent and qualified either academically or through experience

15
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
at 6.8.
16
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
at 6.8.
17
Rule 31.19 Uniform Civil Procedure Rules 2005 (NSW).

238
to be considered an expert in the issue in question, should take place at a pre-
trial stage, or at least outside of the courtroom itself and where necessary, away
from the jury. 18
5.44 The Balance in the Criminal Law Review Group of the Department of
Justice considered the merits of pre-trial disposal of admissibility issues relating
to expert evidence in their final report. 19
5.45 They considered the current system of swearing in a jury prior to
determination of admissibility issues to be ―illogical and inconvenient‖ and ―only
explicable by historical considerations which no longer apply.‖
5.46 The Group also pointed out that the current system leads to the jury
―waiting in the jury room for long periods, or being sent away, and increases the
chances of jurors becoming unavailable during a long trial.‖ 20
5.47 As a result of this, the Balance in the Criminal Law Review Group
recommended that admissibility issues should be determined in the first day or
days of the trial, and prior to the swearing in of a jury.
(a) Advantages of Pre-Trial Determination
Such a structure could reduce the length of trials as the admissibility of
expert evidence is less likely to be challenged in court where it has
already been held admissible at a pre-trial stage.
Expense could also be lessened as the amount of time an expert
spends giving evidence during the actual trial would be reduced. Expert
witnesses would not need to spend time outlining their knowledge or
experience as it could be assumed that once the judge (and/or jury) has
been satisfied of this at the outset, their status as an expert witness
would be prima facie established.
Furthermore, once the proceedings reach the trial stage, the court‘s
attention would be firmly focused on the expert opinion the witness is
giving and determining the credibility of this, and would not be

18
See the comments of Schieman LJ in Woodford & Ackroyd v Burgess 1999
Lloyd's (PN) at 231 and Evans-Lombe J in Barings Plc (in liquidation) v Coopers
& Lybrand [2001] EWHC Ch 17 (9th February, 2001) at 20.
19
Balance in the Criminal Law Review Group Final Report (15 March 2007,
Department of Justice, Equality and Law Reform) Available at:
http://www.justice.ie/en/JELR/Pages/Balance_in_criminal_law_report, at 175.
20
Balance in the Criminal Law Review Group Final Report (15 March 2007,
Department of Justice, Equality and Law Reform) Available at:
http://www.justice.ie/en/JELR/Pages/Balance_in_criminal_law_report, at 175.

239
 sidetracked by secondary matters such as the extent of their expertise.
This would enable the judge or jury to completely devote their
assessment of the expert to considering whether or not his expert
opinion is to be accepted, and they would not be taken up by trying to
simultaneously assess whether the expert‘s purported expertise is to be
accepted.
Pre-trial determination would also reduce the risk of undue weight being
given to certain evidence based on the fact that where evidence is
adduced that is subsequently discredited or ruled inadmissible, the jury
might find it difficult in practise to comply with the judge‘s directions to
disregard or attach little weight the evidence.
(b) Disadvantages of Pre-Trial Determination
Although pre-trial disposal of admissibility issues has theoretical
potential to reduce delays and expense, in reality this may not actually
occur. It could be argued that introducing a pre-trial stage would in fact
merely add another layer to the judicial process leading to second layer
of costly advocacy.
Both parties are likely to have counsel and the experts present at the
pre-trial stage to ensure the best possible chance that the evidence and
the expert will be admitted which may lead to greater rather than lesser
costs as expert witnesses normally charge per hour for court
appearances.
In practice,21 outlining the qualifications and experience that indicate
expertise does not take long in most trials, particularly as the expert
witness pool in Ireland is so small that the trial judge will inevitably have
the same experts appearing before him or her again and again and so
proof of expertise will be established quickly in such instances.
It could also be argued that having a formal pre-trial admissibility
procedure would make it difficult for a party to adduce expert evidence
at a later stage where it became apparent that additional evidence was
necessary.
It may be impossible to determine fully the relevancy and reliability of
evidence without hearing it presented in full in the context of the central
issues of the case and without hearing the cross examination by the
other party. The court is likely to err on the side of caution as a result
which lessens the likelihood of a pre-trial procedure effectively filtering
all unreliable irrelevant evidence from the jury.

21
See the discussion at paragraph 3.66, above.

240
(c) Conclusion
5.48 Based on the foregoing, the Commission does not believe it
necessary or appropriate to recommend the introduction of a mandatory pre-
trial system for the determination of admissibility of expert evidence and expert
witnesses.
5.49 The Commission believes that such a procedure would not have any
significant beneficial impact on delay or expense within the trial process and in
fact, could lead to additional delays and expenses rather than reducing this.
5.50 However, the Commission does consider that there may be certain
cases where pre-trial determination may be appropriate and beneficial. For
example, where it is apparent that determining the admissibility of certain
evidence is likely to be unusually time-consuming, such as where a party seeks
to rely on a theory that is novel or untested and so controversial.
5.51 The Commission therefore provisionally recommends that
determination of admissibility of expert evidence and expert witnesses should
continue to give their evidence during the trial process but that the court should
have the discretion to order pre-trial determination where this is likely to have a
significant impact on the length and costs of a trial.
5.52 The Commission provisionally recommends that determination of the
admissibility of expert evidence and expert witnesses should continue to take
place during the trial process but that the court should have discretion to order
pre-trial determination where this is likely to have a significant impact on the
length and costs of a trial.
(4) Terms and Conditions of Appointment
5.53 At present where a party enlists the aid of an expert witness to advise
the party, to give evidence in court, or to create an expert report, the terms and
conditions governing the appointment of the expert are entirely at the discretion
of the parties involved.
5.54 It is clear however that in the interests of the effective and expedient
administration of justice, there should be clear and complete communication
between experts and those instructing them about the extent of their role and
the conditions governing their appointment, to ensure that both parties are clear
about the services required by the expert and the reason for their appointment.
5.55 The issues that should be resolved from the outset include terms of
payment and expenses, extent of services required, time limits for giving of
report and the likely duration of trial, the consequences of withdrawal or
cancellation of the contract between the expert and the instructing party.
5.56 Encouraging initial communication between experts and their parties,
and recommending the adoption of some form of written confirmation of the

241
terms and conditions of appointment, greatly reduces the possibility of the
expert being confused about what they are being asked to do and when, and
subject to what recompense.
5.57 The UK Register of Expert Witnesses recognised the advantages of
placing the encouragement to agree terms of engagement on a formal footing
where they highly commended the inclusion by the Civil Justice Council of such
a provision in their Expert Witness Protocol;
―We also welcome the inclusion of §7.2 for the weight it adds to our
own calls for expert witnesses to adopt written terms of engagement
at the outset. So many of the helpline calls we handle arise from the
potential for confusion and misunderstanding that flows from an
expert not putting in place the proper contractual framework for an
instruction‖22
5.58 The Civil Justice Council‘s Protocol for Expert witnesses advises that
terms of engagement are agreed from the outset and sets out some of the
express terms which should be agreed on. This provides a helpful model on
which to draft a similar provision in this jurisdiction.
a) ―the capacity in which the expert is to be appointed (e.g. party
appointed expert, single joint expert or expert advisor);
b) the services required of the expert (e.g. provision of expert's report,
answering questions in writing, attendance at meetings and attendance
at court);
c) time for delivery of the report;
d) the basis of the expert‘s charges (either daily or hourly rates and an
estimate of the time likely to be required, or a total fee for the services);
e) travelling expenses and disbursements;
f) cancellation charges;
g) any fees for attending court;
h) time for making the payment; and
i) whether fees are to be paid by a third party.‖23
5.59 The UK Legal Services Commission also recommended that certain
terms must apply to the agreement between an expert and a party and set out
these in a Draft Terms of Appointment schedule in their report on The Use of
Experts.24

22
UK Register of Expert Witnesses ―CJC Experts Protocol – It‘s Official!‖ Available
at: http://www.jspubs.com/Experts/library/lib_g4e.cfm.
23
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 7.2.
24
Legal Services Commission ―The Use of Experts Consultation Paper: Quality,
Price and Procedures in Publicly Funded Cases‖ (2004) Available at:

242
5.60 This Draft requires the appointer to ensure that the purpose of the
appointment and what is required of the expert is discussed at the outset. The
appointer is also required to furnish the expert will copies of all relevant
protocols and practice directions with which both the appointer and the expert
must comply. The Draft also contains provision relating to ongoing
communication and instructions between the party and the expert, and terms
relating to payment.25 This Draft also provides a useful model on which to base
any suggested reform in this area.
5.61 In light of this discussion, the Commission has provisionally
concluded that parties to litigation should formally agree terms of engagement
in writing from the outset with expert witnesses instructed by them. This
requirement could be included as part of a draft code of guidance for expert
witnesses and their instructing parties. The Commission has also provisionally
concluded that any such guide should set out the specific issues which should
be agreed, that this should be a non-exhaustive list and invites submissions on
what should be included in this, particularly in the context of individuals not
accustomed to the giving of expert testimony.
5.62 The Commission provisionally recommends that parties to litigation
should formally agree terms of engagement in writing from the outset with
expert witnesses instructed by them, and that this requirement could be
included as part of a draft code of guidance for expert witnesses and their
instructing parties. The Commission also provisionally recommends that any
such guide should set out the specific issues which should be agreed, that this
should be a non-exhaustive list. The Commission invites submissions on what
should be included in such guide, particularly in the context of individuals not
accustomed to the giving of expert testimony.
(5) Information and Instructions for Experts
5.63 It is clear that in order for an expert witness to give a comprehensive
and balanced examination of the issue calling for his expertise, he will be
required to have necessary information at his disposal.
5.64 It is also clear that expert witnesses will need to be kept advised of all
developments in the case which may affect them, for example where a date has
been set for trial.

http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_con
sultation_paper.pdf, at 10.10 See Annex H for Draft Terms of Appointment.
25
Legal Services Commission ―The Use of Experts Consultation Paper: Quality,
Price and Procedures in Publicly Funded Cases‖ (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_con
sultation_paper.pdf, at 10.10 See Annex H for Draft Terms of Appointment.

243
5.65 Where there is confusion between the instructing party and the
expert witness this may have a significantly detrimental effect on the quality of
the expert testimony, as the expert may not have essential information relevant
to their opinion, or they may not have sufficient time due to a failure of
communication about deadlines.
5.66 It would be beneficial therefore to include in any draft code of
guidance for expert witnesses and their instructing parties a provision that
encourages ongoing communication between the party and the expert to the
effect that the expert has complete and up to date instructions on their task.
5.67 In England, some consideration has been given to the requirement
that parties give suitable and accurate instructions to expert witnesses hired by
them.
5.68 CPR r. 35.10 (3) requires an expert‘s report to ―state the substance of
all material instructions, whether written or oral, on the basis of which the report
was written.‖26 This provision enables the court to assess the ability of the
instructions and information given to the expert to form the basis for a valid
expert opinion, and thus, encourages the giving of more comprehensive
instructions and information by the party.
5.69 The requirement to give full instructions is developed in the Civil
Justice Council‘s Protocol for expert witnesses. Paragraph 7.5 provides that:
―Experts should be informed regularly about deadlines for all matters
concerning them. Those instructing experts should promptly send
them copies of all court orders and directions which may affect the
preparation of their reports or any other matters concerning their
obligations.‖
5.70 The UK Register of Expert Witnesses highly commended this
provision of the Civil Justice Council‘s protocol, finding that it greatly facilitates
the giving of expert evidence.
―Of particular note is the duty imposed by §7.5. We have long sought
to have an express duty placed upon lawyers to pass on court
orders, etc., that have a relevance to expert witnesses in a case. It is
tempting to think that some lawyers attempt to conceal their own
administrative failings behind a refusal to disclose a court order.
Experts should welcome the support §7.5 give them in pursuing such
requests.27

26
Civil Procedure Rule 35.10 (3).
27
UK Register of Expert Witnesses ―CJC Experts Protocol – It‘s Official!‖ Available
at: http://www.jspubs.com/Experts/library/lib_g4e.cfm.

244
5.71 The Legal Services Commission Draft Terms of Appointment also
requires the appointer to notify the expert of any change throughout the
appointment and comply with the expert‘s request for further information. 28
5.72 On this matter, the Commission has provisionally concluded that
there should be included in any relevant guidance a provision recommending
that full information be given by the instructing party to expert witnesses
throughout the extent of their appointment by the party, in particular concerning
procedural requirements. Any such full instructions should not, of course, in any
way prejudice the general duties of the expert witness or seek to influence how
the expert prepares their evidence for court.
5.73 The Commission provisionally recommends the inclusion in any
guidance of a provision recommending that full information be given by the
instructing party to expert witnesses throughout the extent of their appointment
by the party, in particular concerning procedural requirements, which should not
prejudice the manner in which the expert witness prepares his or her evidence
for court.
(6) Experts Costs and Fees
5.74 As already mentioned, the terms of appointment, which should be
formally agreed at the outset, should include terms of payment, which cover
what expenses should will be given and what charges will be incurred due to
delay or other breach of contract.
(a) Types of Fees
5.75 One issue that arises in terms of the payment of experts is the type of
fees that can be charged. Most expert witnesses will charge a flat rate for their
services per hour, per day or per report. Most of the fee-related disputes that
arise between experts and the instructing party involve issues such as whether
or not the amount of time claimed by the expert was reasonable or whether or
not the work agreed was completed satisfactorily within the specified time limits.
Another common cause for dispute is the timing of the payment of an expert‘s
fee for work completed.29

28
Legal Services Commission ―The Use of Experts Consultation Paper: Quality,
Price and Procedures in Publicly Funded Cases‖ (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_con
sultation_paper.pdf, at 10.10 See Annex H for Draft Terms of Appointment.
29 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 12-001.

245
(i) Ireland
5.76 In Britain, contingency and conditional fee payment options are also
occasionally offered by expert witnesses proffering their services. Such forms of
payment have generated considerable debate, not only within the context of
expert witnesses, but largely in relation to the fees that can be charged by
solicitors and barristers.
5.77 A conditional fee is one that provides that the expert‘s fee is not given
(or will be given at a predetermined lower rate) where the case does not end in
success for the party.30 These have also been called ‗no win no fee‘ or ‗no foal
no fee‘ arrangements. The fee that will be awarded will be based on the rates
normally charged by the expert, subject to an increase in the case of success.
5.78 A contingency fee is one where the expert is paid a predetermined
percentage of the award recovered by the party. Both types are conditional on
the outcome of the case, but the contingency fee makes the amount of the
recovered award more important.31
5.79 In the context of solicitors, conditional fees are permitted and lawful
but contingency fees are unlawful. Section 68 (2) of the Solicitors (Amendment)
Act 199432 provides that a solicitor cannot charge fees:
―….on the basis that all or any part of the charges to the client are to
be calculated as a specified percentage or proportion of any
damages or other moneys that may be or may become payable to
the client, and any charges made in contravention of this subsection
shall be unenforceable in any action taken against that client to
recover such charges.‖
(ii) England
5.80 Contingency fee arrangements between solicitors and clients are
considered unlawful in England.
5.81 It was explained by Denning LJ that public policy considerations33
shape this ban, because of ―the temptations to which it exposes [the solicitor].

30 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 12-003.
31 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 12-003.
32
No. 27 of 1994.
33
Such agreements can also be seen as illegal because they effectively amount to
the offence of champerty (Per Lord Denning MR in Wallersteiner v Moir (No. 2)
[1975] Q.B. 373 at 393).

246
At best he may lose his professional objectivity; at worst he may be persuaded
to attempt to pervert the course of justice.‖34
5.82 Greater detail was given on the public policy reasons underlying the
prohibition by Buckley J in Wallersteiner v Moir (No. 2):35
―First, in litigation a professional lawyer‘s role is to advise his client
with a clear eye and an unbiased judgment. Secondly, a solicitor
retained to conduct litigation is not merely the agent and adviser to
his client, but also an officer of the court with a duty to the court to
ensure that his client‘s case, which he must, of course, present and
conduct with the utmost care of his client‘s interests, is also
presented and conducted with scrupulous fairness and integrity. A
barrister owes similar obligations. A legal adviser who acquires a
personal financial interest in the outcome of the litigation may
obviously find himself in a situation in which that interest conflicts with
those obligations.‖36
5.83 It is clear that the argument can be made that the same public policy
reasoning could apply to the relationship between an expert witness and the
instructing party. It could be considered that giving the expert witness an
interest in the outcome of the case, either in the form of conditional fee
arrangements or contingency fee arrangements could significantly compromise
the independence and impartiality of an expert, as they may be tempted to alter
their opinion to increase their fee.
5.84 It has been argued on several occasions in England that such fee
arrangements between expert witnesses and their clients should be prohibited,
bearing in mind the well established principle that an expert witness should not
have any interest in the outcome of the case. 37
5.85 In R (Factortame Ltd) v Secretary of State for Transport (No. 8) 38 the
English Court of Appeal appeared to be of the opinion that while such
arrangements were not to be encouraged, they were at the same time not

34
Lord Denning M.R. in Trendtex Trading Corporation v Credit Suisse [1980] Q.B.
629 at 789.
35
[1975] Q.B. 373.
36
[1975] Q.B. 373 at 401.
37
Field v Liverpool City Council [1999] EWCA Civ 3013 (8 December 1999);
Liverpool Roman Catholic Archdiocesan Trustees Inc. v Goldberg (No. 3) [2001]
1 WLR 2337.
38
[2002] EWCA Civ 932.

247
considered to be unlawful. Lord Phillips MR made the following observations on
the issue:
―To give evidence on a contingency fee basis gives an expert, who
would otherwise be independent, a significant financial interest in the
outcome of the case. As a general proposition, such an interest is
highly undesirable. In many cases the expert will be giving an
authoritative opinion on issues that are critical to the outcome of the
case. In such a situation the threat to his objectivity posed by a
contingency fee agreement may carry greater dangers to the
administration of justice than would the interest of an advocate or
solicitor acting under a similar agreement. Accordingly, we consider
that it will be in a very rare case indeed that the Court will be
prepared to consent to an expert being instructed under a
contingency fee agreement.‖39
5.86 The issue was also considered in Davis v Stena Line Ltd.40 Here, the
defendant argued that the claimant‘s expert evidence should not be admitted
due to the fact that the funding arrangements between the claimant and his
expert had proceeded on a ‗no win no fee‘ basis.
5.87 Forbes J held that the evidence should be admitted, however, he
justified this decision largely on the fact that neither the expert nor the
claimant‘s counsel had appreciated that experts should not be retained on
contingency basis. Furthermore, once they had realised this they had altered
the fee arrangement accordingly. As a result Forbes J rejected the contention
that the expert evidence ―might have been influenced, biased or lacking in
objectivity as the result of the expert's apparent financial interest in the outcome
of the case.‖41
5.88 The comments of Forbes J imply that the evidence in this case was
only admitted due to the fact that the parties involved were not aware that
contingency fee arrangements were not appropriate, and thus that in a case
where both parties intended such an arrangement, the expert evidence might
be ruled inadmissible as such an arrangement creates a presumption of bias or
a lack of objectivity.
5.89 Despite the above judicial commentary criticising conditional fee
arrangements with expert witnesses, there has not yet been a common law or

39
[2002] EWCA Civ 932 at [73].
40
[2005] EWHC 420 (QB).
41
[2005] EWHC 420 (QB) at [28].

248
statutory ban on such arrangements. However, some of the guidance protocols
governing expert witnesses in England have made reference to this.
5.90 Although the CPR Rules and its supplementing Practice Direction
contain no provisions relating to the payment of experts, the Civil Justice
Council‘s Protocol for Experts, which aims to give guidance for their duties
under the CPR rules, does provide that expert‘s fees should not be on a
contingency basis. Paragraph 7.2 states;
―Payments contingent upon the nature of the expert evidence given
in legal proceedings, or upon the outcome of a case, must not be
offered or accepted. To do so would contravene experts' overriding
duty to the court and compromise their duty of independence.‖ 42
5.91 Furthermore, many of the codes of guidance introduced by the
various professional bodies governing expert witnesses contain similar
provisions. For example, The Joint Code of Practice of The Academy of Experts
and the Expert Witness Institute provides;
―An Expert who is retained or employed in any contentious
proceeding shall not enter into any arrangement which could
compromise his impartiality nor make his fee dependent on the
outcome of the case nor should he accept any benefits other than his
fee and expenses.‖ 43
(b) Court Authority to Cap Fees
5.92 The burgeoning cost of expert testimony has also led some
commentators to question the appropriateness of giving the court the ability to
cap an expert‘s fees where it considers necessary. This could have the
beneficial effect of preventing experts from leading a professional expert
witness career based on the high fees that can be earned.
5.93 In England, CPR r. 35.4 (4) gives the court the power to limit expert‘s
fees and expenses that a party seeking to rely on an expert can recover from
another party. The Commission does not consider at this stage that it is
necessary to express a view on this aspect of the CPR.
(c) Conclusion
5.94 While the issue of costs could be left for consideration in case law, as
in the United Kingdom, the Commission has come to the provisional conclusion

42
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005).
43
See; EWI & The Academy of Experts ―Code of Practice for Experts‖ (22 June
2005).

249
that it would be preferable to introduce an express provision prohibiting fee
arrangements which are conditional on the outcome of a case as such
arrangements are likely to impede the independence of the expert witness.
5.95 The Commission provisionally recommends that there should be an
express provision prohibiting fee arrangements with expert witnesses which are
conditional on the outcome of a case, as such arrangements are likely to
impede the independence of the expert witness.

D Communication between Experts and between Experts and the

Court: Pre-trial and At the Hearing
5.96 At present there are no formal arrangements governing
communication between experts prior to and during the trial process, or any
conditions governing the ability of an expert to communicate with the court for
any reason. Such communication could result in more effective and smoother
running of the use of experts.
(1) Pre-Trial Meetings between Experts
5.97 An increasingly common feature in any suggested recommendations
for reform of the expert testimony system is the provision for pre-trial expert
negotiations or meetings in order to decide on non contentious issues with the
aim of narrowing contentious issues and thus reducing the time spent on cross
examination.
5.98 In these pre-trial meetings, both parties should exchange expert
reports and from this determine if they will need to ask each other questions,
clarify certain points, or raise certain points about the other‘s reports thus
reducing contentious issues as far as is possible prior to the trial.
5.99 This meeting could also act as a forum for considering alternative
dispute resolution options, particularly in the context of family law cases. The
court could be permitted, where it considers necessary and appropriate, to refer
any point of issue to mediation for resolution rather than expert witnesses
battling it out.
5.100 As the Australian judge Williams J acknowledged, no expert likes to
concede a point during cross examination, so that, particularly where there are
several experts, the litigation is often side tracked. No professional likes to
make a concession when faced with the report from an expert from the other
side. This, he argues, can lead to false issues being raised and much time
spent endeavouring to resolve them.

250
 ―The dispute between the experts generates a trial within a trial at the
expense of the litigants.‖44
5.101 The well known observation of Tomlin J. in Graigola Merthyr Co Ltd
v. Swansea Corporation45 is also relevant:
―…long cases produce evils... In every case of this kind there are
generally many ‗irreducible and stubborn facts‘ upon which
agreement between experts should be possible and in my judgment
the expert advisers of the parties, whether legal or scientific, are
under a special duty to the court in the preparation of such a case to
limit in every possible way the contentious matters of fact to be dealt
with at the hearing. That is a duty which exists notwithstanding that it
may not always be easy to discharge.‖ 46
5.102 Referring to this case, Toulmin J in Anglo Group Plc v Winther Brown
& Co Ltd and BML (Office Computers) Ltd47 stated:
―The Woolf reforms, building largely on the approach which was
developed in this Court and the Commercial Court (with the support
and encouragement of the users of these Courts) sees no inherent
conflict between dispute resolution by parties in the course of the
procedure and dispute resolution by the court at a full hearing at the
end of the procedure. Dispute resolution in the course of the
procedure may be achieved with assistance outside the court
procedure by way of independent mediation; but it may also be
achieved by techniques of case management pioneered in this court,
e.g. by "without prejudice" meetings of experts, joint statements of
experts setting out the matters on which they agree or disagree, early
neutral evaluation or by the appointment of a single jointly appointed
expert who may effectively resolve the technical issue or issues
which are preventing the parties from settling their disputes; or by a
combination of constructive case management and mediation. Many
of these innovations underline the importance of experts retained by
the parties acting at all stages as independent experts in order to
assist the parties in reaching a resolution of their disputes or in
narrowing the issues in dispute thus saving time and costs at trial‖

44
Williams ―Accreditation and Accountability of Experts‖ Paper presented at the
Medico-Legal Conference (Gold Coast, 5 August 2000).
45
[1928] 1 Ch 31.
46
[1928] 1 Ch 31 at 38.
47
[2000] EWHC Technology 127 (8 March 2000).

251
5.103 It is submitted that experts might be more willing to make
concessions and compromises where this occurs outside the accusatorial
framework of cross examination. The expert would feel under less pressure to
defend his viewpoint if it is not being discussed in terms of a direct conflict with
the other side.
(a) Ireland
5.104 Although there are no general provisions relating to pre-trial meetings
between expert witnesses in this jurisdiction, some recent reforms in this vein
have taken place in the context of experts used in the competition and
commercial courts.
5.105 Order 63B of the Rules of the Superior Courts 1986,,48 which deals
with pre-trial procedure in Competition Proceedings, provides that a judge may,
at the initial directions hearing, give any of a number of listed directions to
facilitate the determination of the proceedings, including, in the context of expert
witnesses:
―directing any expert witnesses to consult with each other for the
purposes of –
(a) identifying the issues in respect of which they intend to give
evidence,
(b) where possible, reaching agreement on the evidence that they
intend to give in respect of those issues, and
(c) considering any matter which the Judge may direct them to
consider, and requiring that such witnesses record in a memorandum
to be jointly submitted by them to the Registrar and delivered by them
to the parties, particulars of the outcome of their consultations
provided that any such outcome shall not be in any way binding on
the parties.49
5.106 The proviso in the latter part of this provision is very significant, as it
facilitates greater disclosure between experts as they will not be bound by any
comments they make which could potentially conflict with the opinion they give
in court. Such full and frank disclosure is essential if the pre-trial negotiations
are to result in any significant reduction in the contentious issues left to be dealt
with at trial.

48
As inserted by the Rules of the Superior Courts (Competition Proceedings) 2005
(SI No. 130 of 2005).
49
Order 63B Rule 6(1)(ix), Rules of the Superior Courts 1986.

252
5.107 Order 63A of the Rules of the Superior Courts 1986,50which deals
with Commercial Court proceedings, contains similar provisions but, notably,
also requires witnesses to give a written summary of the negotiations:
―…requiring that such witnesses record in a memorandum to be
jointly submitted by them to the [Court] Registrar and delivered by
them to the parties particulars of the outcome of their
consultations.‖51
(b) England
5.108 In England, the convening of pre-trial meetings between all expert
witnesses was originally provided for in Order 38 rule 38 Rules of the Superior
Court. This sought to encourage such meetings by providing that the court can
order a ‗without prejudice‘ meeting between the experts.
5.109 It was held in Stanton v Callaghan52 that both parties have immunity
from suit regarding the discussions in such meetings, which helped to further
encourage such meetings. In this case it was held that an expert witness could
not be sued for agreeing to a joint experts' statement in terms which the client
thought detrimental to his interests.
5.110 The ability to convene pre-trial meetings on a ‗without privilege‘ basis
provided for Rule 38 RSC has now been incorporated into Part 35.12 of the
Civil Procedure Rules. CPR r.35.12 provides:
(1) The court may, at any stage, direct a discussion between experts for
the purpose of requiring the experts to
(a) identify and discuss the expert issues in the proceedings;
and
(b) where possible, reach an agreed opinion on those issues.
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts
they must prepare a statement for the court showing –
(a) those issues on which they agree; and
(b) those issues on which they disagree and a summary of
their reasons for disagreeing.

50
This was inserted the Rules of the Superior Courts (Commercial Law
Proceedings) 2004 (SI No. 2 of 2004).
51
Order 63A Rule 6(1)(ix), Rules of the Superior Courts 1986.
52
[1998] EWCA Civ 1176 (8 July 1998).

253
 (4) The content of the discussion between the experts shall not be
referred to at the trial unless the parties agree.
(5) Where experts reach agreement on an issue during their
discussions, the agreement on an issue during their discussions, the
agreement shall not bind the parties unless the parties expressly agree
53
to be bound by the agreement.‖
5.111 The procedures to be followed when convening pre-trial meetings are
set out in great detail in the Guidance protocol of the Civil Justice Council. This
also explains the purpose for such meetings;
―18.3 The purpose of discussions between experts should be,
wherever possible, to:
a) identify and discuss the expert issues in the proceedings;
b) reach agreed opinions on those issues, and, if that is not
possible, to narrow the issues in the case;
c) identify those issues on which they agree and disagree and
summarise their reasons for disagreement on any issue; and
d) identify what action, if any, may be taken to resolve any of
54
the outstanding issues between the parties..‖
5.112 The extent of the without privilege immunity given by CPR r.35.12
was discussed in Aird & Anor v Prime Meridian Ltd.55 Here, both experts had
signed a statement stating what was agreed and what was disagreed, which,
the court held would ordinarily be sufficient to waive the privilege.
5.113 Coulson QC went on to find that, on the facts, if the claimants' expert
had known that the joint statement was to be used in the litigation if the
mediation was unsuccessful, then he would not have signed it.
5.114 This case shows willingness on the part of the court to retain the
privilege where possible, thus promoting as far as possible free communication
between experts prior to the trial.
(c) Conclusion
5.115 In light of the above discussion, the Commission has provisionally
concluded that it would be appropriate for the court and the parties to be
empowered to encourage pre-trial meetings between experts. The Commission
does not have a fixed view at this stage on whether, for example, where minor

53
Civil Procedure Rules 35.12.
54
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005).
55
[2006] EWHC 2338.

254
cases are at issue, the discussion could be by telephone or in written form (in
the interests of reducing expenses and delays).
5.116 The Commission provisionally recommends that it would be
appropriate for the court and the parties to be empowered to encourage pre-trial
meetings between experts, and invites submissions on the form or forms this
might take.
(2) Experts Questions
5.117 Any provisions introduced to provide for pre-trial communication
between experts should include a procedure whereby experts should have the
ability to put questions to the other party, subsequent to receipt of that party‘s
initial expert report, where they are uncertain about elements contained in the
report, or where they feel relevant information is absent from the report. Both
parties should be required to answer questions put to them by the opposing
side, and these answers should then form part of the final expert report.
5.118 In England, provision is made for a party to put written questions to
the other party in CPR r. 35.6. This is a comprehensive provision which outlines
the procedure for and consequences of such questions. CPR r. 35.6 provides;
35.6 Written questions to experts
(1) A party may put to –
(a) an expert instructed by another party; or
(b) a single joint expert appointed under rule 35.7, written questions
about his report.
(2) Written questions under paragraph (1) –
(a) may be put once only;
(b) must be put within 28 days of service of the expert‘s report; and
(c) must be for the purpose only of clarification of the report, unless in
any case –
(i) the court gives permission; or
(ii) the other party agrees.
(3) An expert‘s answers to questions put in accordance with
paragraph (1) shall be treated as part of the expert‘s report.
(4) Where –
(a) a party has put a written question to an expert instructed by
another party in accordance with this rule; and

255
 (b) the expert does not answer that question, the court may make
one or both of the following orders in relation to the party who
instructed the expert –
(i) that the party may not rely on the evidence of that expert; or
(ii) that the party may not recover the fees and expenses of that
expert from any other party.
5.119 In this jurisdiction, the Rules of the Superior Courts (Disclosure of
Reports and Statements) 1998 (SI No. 391 of 1998) require both parties‘
experts to disclose their reports within a certain time limit prior to the trial.
However, no provision is included that enables the parties to put questions to
each other about the contents of the report. The Commission has reached the
provisional view that both parties should be required to answer questions about
the contents of their expert reports prior to the trial when these are put by the
other party.
5.120 The Commission provisionally recommends that both parties be
required to answer questions about the contents of their expert reports prior to
the trial when these are put by the other party.
(3) Court Directions
5.121 It may also be the case that the court, rather than the legal counsel
instructing an expert, may be better placed to advise an expert on a particular
issue. This may ensure that the expert witness carries out his role to the
satisfaction of the court thus reducing the chance of his evidence later being
ruled inadmissible.
5.122 Based on this consideration, there is a certain merit to the suggestion
that there should be a provision whereby the expert may apply to the court for
assistance or directions to enable him to carry out his function as expert
5.123 In England, this is provided for in CPR r 35.14 which provides;
―35.14 Expert‘s right to ask court for directions
(1) An expert may file a written request for directions to assist him in
carrying out his function as an expert.
(2) An expert must, unless the court orders otherwise, provide a copy
of any proposed request for directions under paragraph (1)–
(a) to the party instructing him, at least 7 days before he files
the request; and
(b) to all other parties, at least 4 days before he files it.

256
 (3) The court, when it gives directions, may also direct that a party be
56
served with a copy of the directions.”
5.124 On this issue, the Commission has concluded that it might be
appropriate for an expert witness to put a request to the court for information
about issues relating to how he or she can satisfactorily fulfil their role and
duties as an expert witness where they feel they have not received sufficient
information from those instructing them. This should not, of course, be allowed
to give rise to delay, in particular where there have been proper pre-trial
meetings. For this reason, the Commission would welcome submissions on this
point.
5.125 The Commission invites submissions on whether it would be
appropriate for an expert witness to put a request to the court for information
about issues relating to how he or she can satisfactorily fulfil their role and
duties as an expert witness where they feel they have not received sufficient
information from those instructing them.
(4) Disclosure of all Relevant Information
5.126 In some cases, particularly where sensitive issues are involved,
expert witnesses may find it difficult to access all relevant information necessary
to formulate an expert opinion, as the parties may be reluctant to reveal such
information.
5.127 However, it is also recognised that in order for a party to be given a
fair trial, their expert witness must be entitled to full disclosure of all necessary
documents and materials. Equality of access to relevant information to all
parties is essential.
5.128 It may therefore be desirable to introduce a provision to allow an
expert witness who is being prevented from accessing essential documents to
apply to the court for an order requiring the other party to disclose such
documents.
(a) Ireland
5.129 A number of Irish cases have considered access of a party to
information and the ability of a party‘s medical expert to conduct their own
examination of an individual.
5.130 For example in McGrory v ESB57 the plaintiffs refused to permit the
plaintiff‘s medical adviser to be questioned by the defence expert witness.
Keane CJ stated, in ordering a stay in the proceedings until such time as the

56
Civil Procedure Rules 35.14.
57
[2003] IESC 45.

257
plaintiff consented to the defendant‘s medical adviser consulting with his
medical advisers, that:
―The plaintiff who sues for damages for personal injuries by
implication necessarily waives the right of privacy which he would
otherwise enjoy in relation to his medical condition. The law must be
in a position to ensure that he does not unfairly and unreasonably
impede the defendant in the preparation of his defence by refusing to
consent to a medical examination. Similarly, the court must be able to
ensure that the defendant has access to any relevant medical
records and to obtain from the treating doctors any information they
may have relevant to the plaintiff‘s medical condition, although the
plaintiff cannot be required to disclose medical reports in respect of
which he is entitled to claim legal professional privilege.‖
5.131 Similarly, in JF v DPP58 the applicant, who was accused of indecent
assault on the respondent, sought to have certain paragraphs of the statement
of opposition struck out as the respondent had refused permission to be
medically examined by a psychologist appointed by the applicant for the
purposes of ascertaining the reasons for delay in bringing the complaints.
5.132 The applicant argued that the inability to have an independent
psychiatric evaluation of the respondent prevented him from countering the
respondent‘s expert with his own expert evidence, which meant he would be ―at
a wholly unjustified disadvantage‖ in fighting the proceedings. The applicant
cited Re Haughey,59 Maguire v Ardagh60 and McGrory v ESB61 in support of his
argument that he should be entitled to an independent examination.
5.133 The applicant‘s arguments were accepted by the Court which held
that in the interests of fair procedures and the equality of the two sides - or
égalité des armes62 principle - that the applicant had a right to counter the
respondent‘s expert evidence with his own expert evidence, and this
necessitated being given the opportunity to personally assess the individual.

58
[2005] IESC 54.
59
[1971] IR 217.
60
[2002] 1 IR 385.
61
[2003] IESC 45.
62
This concept was explained by the European Court of Human Rights in Steel and
Morris v United Kingdom (15 February 2005) where the Court stated: ―It is central
to the concept of fair trial in civil as in criminal proceedings that a litigant is not
denied the opportunity to present his or her case effectively before the Court and
that he or she is able to enjoy equality of arms with the opposing side.‖

258
(b) England
5.134 In England, there is also much case law to the effect that a party
cannot withhold information or access to witnesses from another party‘s expert
witness.63 The reasons for this were explained by Lord Denning MR in Harmony
Shipping Co v Saudi Europe;64
―So far as witnesses of fact are concerned, the law is as plain as can
be. There is no property in a witness. The reason is because the
court has a right to every man's evidence. Its primary duty is to
ascertain the truth. Neither one side nor the other can debar the court
from ascertaining the truth either by seeing a witness beforehand or
by purchasing his evidence or by making communication to him. In
no way can one side prohibit the other side from seeing a witness of
fact, from getting the facts from him and from calling him to give
evidence or from issuing him with a subpoena.‖
5.135 The Civil Procedure Rules 1998 have further strengthened the ability
of a party to access all necessary information. CPR r. 35.9 provides that where
one party has access to information which is not readily available to the other
party, the court may direct the party who has access to the information to
prepare, file and copy to the other party a document recording the information.
5.136 The Civil Justice Council‘s protocol tempered the effect of this
provision by recommending that it only be used where necessary;
―If experts require such information which has not been disclosed,
they should discuss the position with those instructing them without
delay, so that a request for the information can be made, and, if not
forthcoming, an application can be made to the court. Unless a
document appears to be essential, experts should assess the cost
and time involved in the production of a document and whether its
provision would be proportionate in the context of the case.‖ 65
(c) Conclusion
5.137 On this issue, the Commission has concluded that it might be
appropriate to introduce a provision enabling the court to order that a party
disclose all necessary information to the other party where this is not

63
Edmeades v Thames Board [1969] 2 QB 68; Dunne v British Coal Corporation
[1993] ICR 601; Harmony Shipping Co v Saudi Europe [1979] 1 WLR 1381.
64
[1979] 1 WLR 1380
65
Civil Justice Council ―Protocol for the Instruction of Experts to Give Evidence in
Civil Claims‖ (June 2005) at 12.2.

259
forthcoming and where needed in order to create a comprehensive expert
report. The Commission would welcome submissions on this point.
5.138 The Commission invites submissions as to whether the court should
be empowered to order that a party disclose all necessary information to the
other party where this is not forthcoming and where needed in order to create a
comprehensive expert report.

E Expert Reports
5.139 Expert witnesses give their opinion in the form of report, which is
accessible by the other party, and which will form the basis of the opinion given
in court.
5.140 Significant statutory amendment has taken place in recent years in
this jurisdiction to the effect that expert reports must be disclosed to the other
party prior to the trial.
5.141 However, there is comparably little guidance relating to the requisite
content of such reports. This is surprising, considering that the report forms the
fundamental basis of all expert evidence.
(1) Disclosure of Expert Reports & Rules of Privilege
5.142 Significant exceptions to the privilege rules have been made in the
context of expert reports in civil proceedings, as it is considered necessary in
the interests of a fair trial that neither party be able to ‗ambush‘ the other so
both party should be aware, prior to the trial, of the contents of all expert reports
of the other party.
5.143 In comparison with the relative lack of judicial or legislative
intervention into other aspects of the system of expert testimony, the rules of
disclosure applying to the reports of expert witness have received considerable
legislative and judicial scrutiny in this jurisdiction.
(a) Disclosure in Personal Injuries Proceedings
5.144 A significant exception to legal professional privilege was added to
the Rules of the Superior Courts 1986 by the Rules of the Superior Courts
(Disclosure of Reports and Statements) 1998 (SI No. 391 of 1998).66 These
replaced the Rules of the Superior Courts (Disclosure of Reports and
Statements) 1997 (SI No 348 of 1997), which had been criticised as imposing

66
The 1998 Rules were made under section 45(3) of the Courts and Court Officers
Act 1995 which provides that notwithstanding the existence of the rule of privilege
for legal advice, the court may order disclosure of any reports from an expert who
is to be called to give evidence in relation to an issue in question.

260
excessively onerous disclosure requirements and huge practical difficulties on
parties to personal injuries proceedings. 67
5.145 The 1998 Rules aim to prevent ‗trial by ambush‘ and provide that in
High Court personal injuries cases, the plaintiff must disclose within one month
of the service of the notice of trial a schedule of all reports and statements of
experts whom they intend to call as witnesses, that contain the ‗substance of
the evidence to be adduced‘ by them.68
5.146 Within seven days of receipt of this schedule, or such time as is
agreed by the parties or the court, the defendant must furnish to the plaintiff and
any other parties a schedule of all reports of expert witnesses intended to be
called. Within seven days of receipt of the defendant‘s schedule the parties are
required to exchange copies of all reports listed in the relevant schedules.
5.147 The definition of report includes that give by those experts specified
and ‗any other expert whatsoever,‘ and so would appear sufficiently broad to
encompass any person who, in the court‘s opinion, has a particular degree of
expertise in the subject matter in question. 69
5.148 The definition of report also includes all materials used by the expert
in coming to his or her opinion such as ―maps, drawings, photographs, graphs,
charts, calculations or other like matter referred to in any such report.‖70
5.149 Rule 45(2) requires the parties to exchange, within one month of the
service of the notice of trial or other such time agreed by the court or the
parties, the information and statements referred to in section 45 (1) (a) (iii), (iv)
and (v) of the Courts and Court Officers Act 1995 namely:
the names and addresses of all witnesses intended to be called to
give evidence as to facts in the case,

67
Per Kearns J in Payne v Shovlin [2006] IESC 5 (9 February 2006).
68
Order 39, Rule 46 (1) of the 1986 Rules, as inserted by the 1998 Rules.
69
The issue of who can be an expert was also dealt with in the case of Galvin v
Murray [2000] IESC 78 where Murphy J made the point that the problem (in
defining an expert) created by the 1998 Rules is serious and may not be easily
solved. He held that where a County Council relied on their own engineers, they
should still be considered as expert witnesses for the purpose of the Rules.
However, he recognised that the report of the Council‘s engineers may contain
certain observations that would not be present in an independent engineer‘s
report therefore he afforded the respondents the opportunity to argue that certain
parts of the engineer‘s report should be deleted before disclosure.
70
Order 39, Rule 45 (1)(e) of the 1986 Rules, as inserted by the 1998 Rules.

261
 a full statement of all items of special damage together with
appropriate vouchers, or statements from witnesses by whose
evidence such loss would be proved in the action, and
a written statement from the Department of Family and Social Affairs
showing all payments made to a plaintiff subsequent to an accident
or an authorisation from the plaintiff to the defendant to apply for
such information
(i) Withdrawal of Report or Statement & Disclosure
5.150 The precise obligations imposed by the 1998 Rules were considered
in Kincaid v Aer Lingus Teoranta.71 Here, the defendant had listed an
orthopaedic surgeon in his schedule of experts, but when furnishing his experts‘
reports to the plaintiffs omitted to send a report from the surgeon as he informed
the plaintiffs he no longer intended to call the surgeon at trial.
5.151 The plaintiff claimed, on a literal interpretation of Rule 46(6), that the
defendant was not entitled to withdraw reliance on the expert until he had
furnished reports from all experts listed in the schedule. Rule 46(6) provides:
―Any party who has previously delivered any report or statement or
details of a witness may withdraw reliance on such by confirming by
letter in writing that he does not now intend to call the author of such
report or statement or such witness to give evidence in the action. In
such event the same privilege (if any) which existed in relation to
such report or statement shall be deemed to have always applied to it
notwithstanding any exchange or delivery which may have taken
place.‖
5.152 The Supreme Court held that a literal interpretation to the effect that
a party is prohibited from withdrawing reliance unless he has previously
delivered the report was ―fallacious.‖ Geoghegan J found that the situation that
arose in this case was not expressly covered by Rule 46(6) and so in order to
apply a proper interpretation of the Rules to the facts of the case it was
necessary to look at the statutory provision underlying the 1998 Rules, section
45 of the Courts and Court Officers Act 1995.
5.153 Based on this interpretation, Geoghegan J held that only expert
reports intended to be relied on in evidence were subject to the disclosure rules,
and therefore once the defendant had changed his mind about the witness, the
surgeon‘s report became a privileged document and so did not have to be
disclosed.

71
[2003] IESC 31 (9 May 2003).

262
(ii) Preliminary Reports & Disclosure
5.154 The duty of disclosure under the rules was also considered by the
Supreme Court in Payne v Shovlin,72 a decision which has greatly clarified the
precise application of the rules and what exactly constitutes an expert report.
5.155 Here, the question arose as to whether there was a duty on the
plaintiff to disclose the preliminary report of the medical expert as well as the
final, more refined report. The plaintiff argued that after further consultation, the
view of the expert in relation to causation and liability had developed since the
preliminary report and therefore it would be unfair to require him to disclose a
report created when proceedings were just getting under way, based on a more
reliable report. The defendant argued that, on the wording of the 1998 Rules, all
expert reports must be adduced, and that not disclosing this report would mean
that the defendant could be ambushed at trial with the expert‘s views from an
earlier report.
5.156 The Supreme Court held that once the report in question formed part
of the substance of the evidence, it must be disclosed pursuant to the 1998
rules, regardless of the existence of a later more comprehensive version of the
report.
5.157 Kearns J considered that, while the 1998 Rules introduced an
exception to the general privilege attaching to communications made in
contemplation of litigation, that privilege is itself an exception to the general
principle that all relevant information should be brought before the court, and as
such it should be strictly interpreted. He went on to explain that such disclosure
is necessary in the interests of expedition and efficiency:
―…the failure to produce an earlier report, providing it contains the
substance, or part of the substance, of the evidence which, at the
time of its compilation it was intended to give, may lead to a situation
where in the course of cross-examination, it may emerge that the
author expressed a different view, for example in relation to
causation in a medical negligence action, at an earlier time and
adverted to same in a first report. How can the interests of expedition
and efficiency be served if such information only emerges in cross-
examination? It might well require that the trial be adjourned while
further lines of enquiry are pursued in the light of the particular
revelation. Further, it would always be possible that such additional
inquiries might lead to the claim being dropped altogether. All of
these costly and undesirable consequences are avoided by

72
[2006] IESC 5 (9 February 2006).

263
 disclosure of all reports which contain any of the substance of the
evidence intended to be led.‖73
(iii) Disclosure of Documents Mentioned in Expert Reports
5.158 The extent to which documents which are referred to in the report of
an expert or documents to which the expert had regard to retain their privilege
or are required to be disclosed was considered in Doherty v North Western
Health Board, Davison and Medical Defence Union and MDU Services Ltd.74
5.159 Here the defendant Health Board (now the Health Service Executive)
sought disclosure of certain documents of the first and third parties, Davison
and MDU Services Ltd, which had been referred to in the reports of two expert
witnesses in the case.
5.160 The defendant claimed such documents came under the definition of
that required to be disclosed under the rules as which refer to ―any maps,
drawings, photographs, graphs, charts, calculations other like matter referred to
in any such report.‖75
5.161 The documents in question here included solicitor/client
correspondence and certain statements by witnesses, and the defendant
argued this was ―other like matter‖ as mentioned under the rules.
5.162 The court disagreed with this argument finding that the phrase ―other
like matter‖ must be interpreted in the context of the preceding words which
referred to maps, drawings etc and that the documents referred to in this case
could not be considered as a like matter to those specifically mentioned in the
Rules.
(iv) 1998 Rules in Practice
5.163 Although the 1998 Rules themselves have been criticised as unclear,
the interpretation given by Court in Payne and other decisions has gone a long
way towards clarifying some of the uncertainties generated by the 1998 Rules.
5.164 Nevertheless, some difficulties still remain. First, the court failed to
define clearly the meaning of the term the ―substance of the evidence to be
adduced.‖76 Kearns J in Payne opined that it was an ―arguable point‖ that, as

73
[2006] IESC 5 (9 February 2006).
74
[2005] IEHC 404.
75
Order 39 Rule 45 (1)(e), Rules of the Superior Courts 1986, as inserted by the
1998 Rules.
76
See Carthy ―Expert Assistance‖ (2006) Aug/Sept Law Society of Ireland Gazette
30 at 33.

264
held in English decision of Kenning v Eve Construction Ltd,77 the substance of
the evidence includes not only matters that may arise from the direct evidence
of the expert in examination-in-chief but also matters that may arise during
cross-examination. The court however, refrained from giving any set view if this
should be the case in this jurisdiction.
5.165 Second, it can be recognised that the decision in Payne has placed a
very high onus on parties to personal injuries litigation to disclose all expert
reports that form part of the evidence in court, even if the opinions expressed by
the expert have altered due to changing circumstances or increased
information.
5.166 The parties will therefore seek to ensure that there is nothing in a
preliminary expert report which may undermine their arguments in court. This
has led to a situation in practice where experts are encouraged to refrain from
formally creating their report until they have thoroughly completed their
investigations, finalised their opinions and liaised with the instructing party.
Such an approach is clearly not what was envisaged by the rules and could in
fact result in misunderstanding of verbal communications and advice particularly
where complex issues are in question.78
(b) Disclosure in Criminal Proceedings
5.167 In the context of criminal proceedings, the law recognises the right of
an accused person to information regarding the evidence to be adduced against
him or her at trial. As a result, under Part 4 of the Criminal Procedure Act 1967,
as amended by Part 9 of the Criminal Justice Act 1999, where the accused in
being tried on indictment, the prosecution in a criminal trial is required to furnish
the accused with details of the evidence to be given at trial, which is commonly
known as the Book of Evidence.
5.168 The material that must be disclosed in set out in Part 4B & 4C of Part
IA of the Criminal Procedure Act 1967, which was inserted by section 9 of the
Criminal Justice Act 1999. Material that must be disclosed which has relevance
the context of expert witnesses includes:
―4B (1) (c) a list of the witnesses the prosecutor proposes to call at
the trial
(d) a statement of the evidence that is expected to be given by each
of them…

77
[1989] 1 WLR 1189 This decision was later overturned in Derby & Co. v Weldon
(No.9) (The Times, November 9, 1990).
78
Carthy ―Expert Assistance‖ (2006) Aug/Sept LSG 30 at 33.

265
 4C (1) (a) a list of any further witnesses the prosecutor proposes to
call at the trial;
(b) a statement of the evidence that is expected to be given by each
witness whose name appears on the list of further witnesses
(c) a statement of any further evidence that is expected to be given
by any witness whose name appears on the list already served under
section 4B(1) (c.)‖
(c) Disclosure in Commercial Proceedings
5.169 Similar disclosure requirements to those provided for in personal
injuries cases by the 1998 Rules are also provided for in commercial
proceedings by the Rules of the Superior Courts (Commercial Proceedings)
2004 (SI No. 2 of 2004).
5.170 The 2004 Rules provide that a party seeking to rely on an expert‘s
evidence must furnish, not later than one month prior to the date of trial in the
case of the plaintiff, and not later than seven days prior to the date of trial in the
case of the defendant, a written statement outlining the essential elements of
that evidence signed and dated by the expert.
(d) Disclosure in Competition Proceedings
5.171 Mirror provisions to the 2004 disclosure rules in commercial
proceedings are provided for in competition proceedings by the Rules of the
Superior Courts (Competition Proceedings) 2005 (SI No 130 of 2005).
5.172 The 2005 Rules provide that a party seeking to rely on an expert‘s
evidence must furnish, not later than one month prior to the date of trial in the
case of the plaintiff, and not later than seven days prior to the date of trial in the
case of the defendant, a written statement outlining the essential elements of
that evidence signed and dated by the expert.
(e) Conclusion
(2) Exchange of Expert Reports
5.173 None of the above mentioned rules providing for exchange of expert
reports expressly state the method whereby the reports that are intended to be
used are to be exchanged between the parties. However, in the context of
personal injuries actions, the Supreme Court in Kincaid v Aer Lingus Teoranta,79
sought to clarify how the exchange of expert reports was to take place in
practice. Geoghegan J stated:

79
[2003] IESC 31 (9 May 2003).

266
 ―The obligation under O. 39, r. 46(1) is to "exchange" scheduled
reports. If a party's solicitor ensures that the "exchange" is
contemporaneous there is no danger of the so called "abuse"
arising.‖
5.174 The Commission has provisionally concluded that, having regard in
particular to the clarification given in the case law discussed to the operation of
the 1998 Rules, it might be appropriate to recommend the extension of a
requirement to exchange expert reports to apply to all categories of civil claims,
and the Commission invites submissions on this.
5.175 The Commission invites submissions on whether it would be
appropriate to recommend the extension of a requirement to exchange expert
reports, currently confined to personal injuries actions, to all categories of civil
claims.
(3) Requisite Contents of the Expert Report
(a) Ireland
5.176 At present there is no set form and structure required for the expert
reports and it at the discretion of the individual expert witness to decide what
the contents of these should be.
5.177 The majority of expert reports will be very detailed outlining the
investigations made, the opinions reached, and setting out any materials used
in the making of the expert report, because an expert report that does not
contain sufficient detail is unlikely to be admitted as evidence, and even if it is,
its shortcomings are likely to be exposed during cross examination.
5.178 However, other jurisdictions have put down in written format the
necessary elements of expert reports. This provides useful guidance for experts
and helps to promote consistent high standards in expert reports.
(b) England
(i) Civil Cases
5.179 In England, Part 35 of the Civil Procedure Rules, the accompanying
Practise Direction to Part 35, and the Civil Justice Council‘s Protocol for the use
of Experts in Civil Claims all provide extensive guidance about the requisite
contents of expert reports created in cases under the CPR Rules.
(I) CPR Rule 35.10
5.180 CPR Rule 35.10, entitled ‗contents of reports,‘ states that an expert
report must comply with the requirements set out in the relevant Practice
Direction.80 However CPR r.35.10 then goes on to specifically mention certain

80
Civil Procedure Rule 35.10(1).

267
elements that must be included, which underlines the importance of these
elements.
5.181 The expert is required to sign a declaration that he understands and
has complied with his or her overriding duty to the court. 81 He or she is also
obliged to ensure that the report contains the substance of all materials
instructions, written or oral, on the basis of which the report was written. 82
(II) Practice Direction Part 35
5.182 Part 2 of the Practice Direction covers the form and content of the
expert‘s reports. It begins by clarifying that the report is to be addressed to the
court and not to the party from whom the expert has received instructions.83
5.183 Part 2.2 then expressly enumerates certain mandatory requirements;
―2.2 An expert‘s report must:
(1) give details of the expert‘s qualifications;
(2) give details of any literature or other material which the expert has
relied on in making the report;
(3) contain a statement setting out the substance of all facts and
instructions given to the expert which are material to the opinions
expressed in the report or upon which those opinions are based;
(4) make clear which of the facts stated in the report are within the
expert‘s own knowledge;
(5) say who carried out any examination, measurement, test or
experiment which the expert has used for the report, give the
qualifications of that person, and say whether or not the test or
experiment has been carried out under the expert‘s supervision;
(6) where there is a range of opinion on the matters dealt with in the
report –
(a) summarise the range of opinion, and
(b) give reasons for his own opinion;
(7) contain a summary of the conclusions reached;
(8) if the expert is not able to give his opinion without qualification,
state the qualification; and

81
Civil Procedure Rule 35.10(2)(a)(b).
82
Civil Procedure Rule 35.10(3).
83
Practice Direction Part 35 2.1.

268
 (9) contain a statement that the expert understands his duty to the
court, and has complied and will continue to comply with that duty.‖
5.184 Part 2.3 requires the expert to verify the report by signing a
declaration of truth and 2.4 states the exact wording of the statement of truth to
be used:
―I confirm that insofar as the facts stated in my report are within my
own knowledge I have made clear which they are and I believe them
to be true, and that the opinions I have expressed represent my true
and complete professional opinion.”
5.185 Finally, Part 2.5 gives further guidance to the expert about the duty
owed by an expert witness to act truthfully and with integrity at all times by
drawing the expert‘s attention to CPR r. 35.14 which sets out the consequences
of making a statement without an honest belief in its truth.
(III) Civil Justice Council Protocol for Experts in Civil Claims
5.186 Part 13 of this guidance protocol summarises the requirements
relating to contents of expert reports outlined in CPR r 35 and the Practice
Direction, in particular the overriding duty owed to the court, the requirement to
sign a declaration of truth, and the requirement to maintain independence and
objectivity at all times when preparing reports. 84
(IV) Professional Expert Witness Bodies
5.187 Furthermore, as explained in the Civil Justice Council‘s Protocol,
model form expert reports are available for experts from bodies such as the
Expert Witness Institute and the Academy of Experts.85 Such groups also run

84
Part 13 Civil Justice Council ―Protocol for the Instruction of Experts to Give
Evidence in Civil Claims‖ (June 2005)).
85
UK Register of Expert Witnesses ―Factsheet No 27: Expert Reports:
Requirements and Characteristics‖ Available to members at:
http://www.jspubs.com/Experts/library/lib_fsidx.cfm; Academy of Experts
Available at: http://www.academy-experts.org; Expert Witness Institute ―Model
Form of Reports‖ Available at: http://www.ewi.org.uk/lawandyou/lawandyou.asp.
See also the very detailed and helpful Psychologists as Expert Witnesses:
Guidelines and Procedure for England and Wales (Final Report August 2007).
This was a Report commissioned by the Professional Practice Board (PPB) and
Research Board (RB) of the British Psychological Society. Produced by the
British Psychological Society Expert Witnesses Working Party. Available at
http://www.bps.org.uk/downloadfile.cfm?file_uuid=3393E220-1143-DFD0-7EC1-
94B653B296A6&ext=pdf

269
training courses for their members which give training on excellence in report
writing.86
(ii) Criminal Cases
5.188 The Criminal Procedure Rules also give comprehensive
consideration to the requisite content of expert reports created under the Rules.
Rule 33.3(1) and (2) provide:
―(1) An expert's report must –
(a) give details of the expert's qualifications, relevant experience and
accreditation;
(b) give details of any literature or other information which the expert
has relied on in making the report;
(c) contain a statement setting out the substance of all facts given to
the expert which are material to the opinions expressed in the report
or upon which those opinions are based;
(d) make clear which of the facts stated in the report are within the
expert's own knowledge;
(e) say who carried out any examination, measurement, test or
experiment which the expert has used for the report and –
(i) give the qualifications, relevant experience and
accreditation of that person,
(ii) say whether or not the examination, measurement, test or
experiment was carried out under the expert's supervision, and
(iii) summarise the findings on which the expert relies;
(f) where there is a range of opinion on the matters dealt with in the
report –
(i) summarise the range of opinion, and
(ii) give reasons for his own opinion;
(g) if the expert is not able to give his opinion without qualification,
state the qualification
(h) contain a summary of the conclusions reached;
(i) contain a statement that the expert understands his duty to the
court, and has complied and will continue to comply with that duty;
and

86
These training courses are discussed in greater detail in Chapter 6.

270
 (j) contain the same declaration of truth as a witness statement.‖
(c) Australia
(i) Federal Court of Australia
5.189 The Explanatory Memorandum attached to the Federal Court of
Australia‘s Practice Direction on Expert Evidence‘s Explanatory Memorandum is
interesting as rather than focusing on the form and structure of the expert report
it makes some suggestions relating to the substance and content of the report.
More specifically, it sets out a number of suggestions for ensuring that the
expert report avoids being perceived as lacking objectivity and of being
coloured in favour of the instructing party;
―Ways by which an expert witness giving opinion evidence may avoid
criticism of partiality include ensuring that the report, or other
statement of evidence:
(a) is clearly expressed and not argumentative in tone;
(b) is centrally concerned to express an opinion, upon a clearly
defined question or questions, based on the expert‘s specialised
knowledge;
(c) identifies with precision the factual premises upon which the
opinion is based;
(d) explains the process of reasoning by which the expert reached
the opinion expressed in the report;
(e) is confined to the area or areas of the expert‘s specialised
knowledge; and
(f) identifies any pre-existing relationship (such as that of treating
medical practitioner or a firm‘s accountant) between the author of the
report, or his or her firm, company etc, and a party to the litigation.‖87
5.190 The Practice Direction itself also contains considerable detail on the
requisite Form of the Expert Evidence in Part 2. This requires the expert report
to give details of the expert‘s qualifications and other literature used in making
the report,88 as well as detailing the qualifications of each person who carried

87
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007.
88
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007 at 2.1.

271
out tests relied on by the expert in the report. 89 Any extrinsic material referred to
in the report such as ―photographs, plans, calculations, analyses,
measurements, survey reports‖ must be included with the report. 90
5.191 The expert must clearly state where assumptions of fact have been
91
made, and ensure that all opinions given, along with the reasons for the
opinions, are clearly summarised. 92 The expert must clearly state if the opinion
is incomplete due to lack of data, provisional, or incomplete or inaccurate
without some qualification.93 The expert must also state where a particular issue
falls outside of the expert‘s area of expertise. 94
5.192 A statement of truth is required to be signed at the end of the report
and the appropriate wording for this is given:
―At the end of the report the expert should declare that ―[the expert]
has made all the inquiries that [the expert] believes are desirable and
appropriate and that no matters of significance that [the expert]
regards as relevant have, to [the expert‘s] knowledge, been withheld
from the Court.‖ 95
(ii) Australian Capital Territory
5.193 The ACT Court Procedure Rules 2006 deal with Expert Evidence in
Chapter 2 Part 2.12.96 Although this part does not contain a sub-heading setting
out the necessary elements to be contained in the expert report, some guidance

89
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007 at 2.3.
90
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007 at 2.11.
91
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007 at 2.2.
92
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007 at 2.4-2.5
93
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007 at 2.9
94
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007 at 2.10
95
Federal Court of Australia ―Practice Direction: Guidelines for Expert Witnesses in
Proceedings in the Federal Court‖ Version 5 (Current) 6 June 2007 at 2.6
96
Australian Capital Territory Court Procedure Rules 2006 made under the Court
Procedure Act 2004

272
is given in Division 2.12.1 Part 1201 which defines expert report for the purpose
of the Rules thus indicating what requirements must be complied with in its
compilation.
5.194 Rule 1201(2) states that an expert report is a written statement that
includes:
the expert‘s opinion and facts on which this is based [this requirement
is repeated in Rule 1244]
the substance of the evidence that the expert intends to adduce at
evidence in chief stage of the trial process [this requirement is repeated
in Rule 1243].
5.195 Part 1202(3) requires the expert witness to agree to be bound by the
code of conduct in Schedule 1 of the Rules, and to include an
acknowledgement that this code has been read in the text of the expert report.
(iii) Queensland
5.196 Section 423 of the Uniform Civil Procedure Rules (UCPR) 1999,
which deals with expert evidence, does not go into great detail about the form
and structure of the expert reports. In fact, Section 423 does not refer to a
‗report‘ at all but merely states that an expert witness must give a written
statement of the expert evidence to the other party.
5.197 Like the ACT rules, the three main requirements of this written
statement are that it gives the name and address of the expert, outlines the
qualifications of the expert, and that it contains the substance of the evidence to
be given by the expert at trial.97
(iv) New South Wales
5.198 In contrast with the Queensland UCPR Rules, the New South Wales
Uniform Civil Procedure Rules 2004 contain extensive guidelines on the form
and structure of the expert report. Rule 31.27 entitled Expert Reports provides
that an expert‘s report must include, either in the body of the report or in an
annex to the report, the following;
―(a) the expert‘s qualifications as an expert on the issue the subject
of the report,
(b) the facts, and assumptions of fact, on which the opinions in the
report are based (a letter of instructions may be annexed),
(c) the expert‘s reasons for each opinion expressed,

97
Section 423(1) Uniform Civil Procedure Rules 1999 (Qld)

273
 (d) if applicable, that a particular issue falls outside the expert‘s field
of expertise,
(e) any literature or other materials utilised in support of the opinions,
(f) any examinations, tests or other investigations on which the
expert has relied, including details of the qualifications of the person
who carried them out,
(g) in the case of a report that is lengthy or complex, a brief
summary of the report (to be located at the beginning of the report).
(2) If an expert witness who prepares an expert‘s report believes that
it may be incomplete or inaccurate without some qualification, the
qualification must be stated in the report.
(3) If an expert witness considers that his or her opinion is not a
concluded opinion because of insufficient research or insufficient
data or for any other reason, this must be stated when the opinion is
expressed.
(4) If an expert witness changes his or her opinion on a material
matter after providing an expert‘s report to the party engaging him or
her (or that party‘s legal representative), the expert witness must
forthwith provide the engaging party (or that party‘s legal
representative) with a supplementary report to that effect containing
such of the information referred to in subrule (1) as is appropriate.‖
(d) Conclusion
5.199 There is a strong argument to be made that there should be a list of
compulsory elements set out which must be present in all reports. The above
discussion reveals that other jurisdictions have opted to give extensive
guidelines for experts about what they must put in a report which, it is
submitted, helps to ensure consistency within the reports making it easier for
the court to compare and contrast expert evidence from opposing parties.
5.200 Having a set form and structure also helps to ensure a high standard
of report writing across the board and reduces the risk that the evidence of an
expert will be rejected as being inadequate. From analysis of the requisite
elements identified in other jurisdictions, it would appear that the main
requirements are that the report outline the qualifications of the expert, the
substance of the evidence to be given by the expert, all opinions and the
reasons for the opinion, a statement of veracity relating to the contents of the
report, and an agreement to comply with the overriding duty owed to the court.
5.201 On this basis, the Commission has provisionally concluded that there
should be a set form and structure for expert reports, which might include the
following elements:

274
 The report must be addressed to the court and not to the party or
parties from whom instructions have been received.
The expert‘s qualifications and experience should be outlined in detail
and relevant certificates of proof attached.
The terms and conditions of the appointment of the expert witness
including the payment arrangements should be explained.
All material instructions, oral and written, which were given to the
expert, and on the basis of which the report was written must be
outlined.
If a potential conflict of interest arises, the facts relating to this should
be stated.
All relevant information relating to the issue, including that which is
capable of detracting from the expert‘s opinion, should be outlined.
All materials used by the expert in coming to the opinion, clearly
distinguishing between matters of fact and matters of opinion.
Where tests or experiments have been conducted in the course of
creating the report all related information must be included such as
methodologies, results and details about the individuals and
qualifications of those involved in the carrying out of these tests.
The expert should indicate if the opinion is provisional or conditional on
certain factors, or if they believe they cannot give a formal opinion on
the issue without further information, or where they believe they cannot
make an opinion without qualification.
A signed declaration that the contents of the report are true and that
the expert understands the overriding duty owed to the court and that
the report has been created in compliance with this.
If, subsequent to the completion of a report, an expert changes his or
opinion on any material issue in the report, the expert witness must
state this in a supplementary report. [Paragraph 5.202]
5.202 The Commission provisionally recommends that there should be a
set form and structure for expert reports, which might include the following
elements:
The report must be addressed to the court and not to the party or
parties from whom instructions have been received.
The expert’s qualifications and experience should be outlined in detail
and relevant certificates of proof attached.

275
 The terms and conditions of the appointment of the expert witness
including the payment arrangements should be explained.
All material instructions, oral and written, which were given to the
expert, and on the basis of which the report was written must be
outlined.
If a potential conflict of interest arises, the facts relating to this should
be stated.
All relevant information relating to the issue, including that which is
capable of detracting from the expert’s opinion, should be outlined.
All materials used by the expert in coming to the opinion, clearly
distinguishing between matters of fact and matters of opinion.
Where tests or experiments have been conducted in the course of
creating the report all related information must be included such as
methodologies, results and details about the individuals and
qualifications of those involved in the carrying out of these tests.
The expert should indicate if the opinion is provisional or conditional on
certain factors, or if they believe they cannot give a formal opinion on
the issue without further information, or where they believe they cannot
make an opinion without qualification.
A signed declaration that the contents of the report are true and that
the expert understands the overriding duty owed to the court and that
the report has been created in compliance with this.
If, subsequent to the completion of a report, an expert changes his or
opinion on any material issue in the report, the expert witness must
state this in a supplementary report.
(4) Producing Expert Reports in Court
(a) England
5.203 Part 35 of the Civil Procedure Rules was innovative in that the
underlying premise of admissibility of expert evidence is altered. There is no
general provision stating that parties are entitled to call expert witnesses, rather,
expert evidence is ―restricted to that which is reasonably required to resolve the
98
proceedings.‖ This provision aimed to reflect the overriding function of the
rules namely dealing with cases justly and thus expeditiously.
5.204 Another significant provision in this vein is CPR r.35.5 which explains
that the expert report, and not an expert witness, is the principal means by

98
Civil Procedure Rule 35.1

276
which expert evidence is to be brought before the court. CPR r35.5(1) provides
that expert evidence is to be given in a written report unless the court provides
otherwise.99
5.205 More significantly, CPR r35.5(2) provides that for claims on the fast
100
track, an expert will not be required to attend a hearing unless the court
considers this is necessary in the interests of justice.
5.206 At common law, such a report would have been excluded as
evidence unless the expert himself was called in court. However, this provision
has been facilitated by the introduction of the Civil Evidence Act 1995 which
states that no evidence shall be excluded on grounds that it is hearsay. 101
5.207 CPR r.35.5 has greatly reduced the costs and delayed associated
with the giving of expert testimony in certain categories of cases. According to a
UK Register of Expert Witnesses survey, one of the main noted changes in the
expert witness marketplace has been the reduction in the number of cases in
which experts are required to give oral evidence in court, it being now
considered ―exceptional‖ for experts in ‗fast track‘ cases to be required to
appear in court. The average frequency of court appearances recorded by this
annual survey now stands at 3.1 times a year.102
(b) Ireland
5.208 No mirror provision to CPR r35.5 exists in this jurisdiction.
Furthermore, because of the application of the rule against hearsay,103 expert
witnesses may be required to testify orally about the contents of the expert
report in court in every case where expert evidence is sought to be adduced.

99
Civil Procedure Rule 35.5(1)
100
The Civil Procedure Rules divides cases into a number of different categories.
The ‗small claims track‘ deals with cases involving a financial value of £5000 or
less (CPR 27). Cases with a value between £5000 and £15000 are usually
allocated to the ‗fast track.‘ (CPR 28) Claims above £15000 are usually allocated
to the ‗multi-track.‘(CPR 29)
101
Section 1(1)
102
UK Register of Expert Witnesses ―Your Witness Newsletter‖ (No 49 Sept 2007,
JS Publications) at 2
103
In 1988 the Commission recommended that the rule against hearsay should be
abolished in civil cases: Report on the Rule Against Hearsay in Civil Cases (LRC
25-1988). The Commission is currently (December 2008) involved in a new
project on the hearsay rule as part of the Third Programme of Law Reform 2008-
2014, project 8.

277
5.209 If this was not the case, in less serious cases in the civil courts at
least, it might lead to significantly reduced costs for parties to litigation. It would
ultimately remain open to both parties to call any author of an expert report to
be cross examined if the parties so wish.
5.210 Permitting expert reports, without the need to call experts, where the
subject matter of the expertise is peripheral to the issues in the case, and where
the parties are not in disagreement about the issues, may prove very beneficial
both in terms of cost and terms of delays so it is certainly an issue that should
be considered.
5.211 However, as a result of the lack of reform of the hearsay rule, such a
reform would involve either creating a new statutory exception to the rule, or a
complete overhaul of the rule, perhaps in civil cases only, such as has occurred
in the Civil Evidence Act 1995 in England, unless expert reports were
considered records compiled in the ordinary course of the business, as allowed
under the Criminal Evidence Act 1992.
5.212 In criminal cases, the Criminal Justice Act 2006 has made some
reforms which touch on hearsay. Section 188 inserts a new section (Sec
5(4)(b)(iia) into Section 5 of Criminal Evidence Act 1992 which provides for an
exception to the hearsay rule for certain types of documentation in criminal
proceedings (business records). However section 5(3) provides that this
exception does not apply to documentation created in the context of a criminal
investigation (e.g. forensic records). The 2006 Act now provides that pursuant
to S5(4)(b)(iiaa) the section 3 exclusion will not apply in the case of the forensic
science laboratory.
5.213 There are, however, recent indications of tentative reform in this
area. The Rules of the Superior Courts (Commercial Proceedings) 2004 provide
that a judge may, in exceptional circumstances and after hearing all of the
parties, make an order that the written statement of an expert witness or a
witness of fact sought to be relied on by one of the parties shall be treated as
the evidence in chief of the witness or expert, provided the statement has been
verified on oath by the witness or expert.
5.214 This would appear to allow the judge to order, in exceptional cases,
that once an expert has verified the written statement on oath, he is no longer
required to give viva voce testimony and the written statement will suffice as the
evidence in chief.
5.215 However, the ability of this provision to reduce litigation costs is
undermined by the fact that first, the provision expressly refers to ―exceptional
circumstances‖ which infers it will not be often used, and second, the expert is
still required to come to court to verify the statement on oath, and so will still
charge court attendance fees, albeit for a reduced time.

278
(c) Conclusion
5.216 The Commission has concluded that, while reform in this area might
produce significant beneficial effect in terms of costs and delays, any reform in
the context of expert witnesses should be considered by the Commission in the
wider context of its consideration of the hearsay rule generally. 104

F Alternative Structures to Party Appointed Experts

5.217 None of the above suggested reforms would necessitate a radical
departure from the current system of giving expert testimony. All of the
provisions recommended could be included in a single draft code of guidance
for experts and their instructing parties. This would require little effort to put in
place but could lead to significant improvements in the standard and quality of
expert testimony.
5.218 However, many have argued that such procedural amendments are
not sufficient in themselves. Several commentators have expressed the view
that the only way of combating the recognised problems with the existing
system of giving expert evidence is a complete modification of the current
adversarial structure of the giving of expert testimony and its replacement by
another system that is considered more conducive to independent and impartial
expert evidence.
5.219 As a result, it may be worthwhile considering some of these
suggested alternatives, as well as examining the systems used in other
jurisdictions to import specialist knowledge into the court besides the party
appointed experts used in this jurisdiction.
(1) Single and Court Appointed Experts
5.220 Many jurisdictions, including Ireland, have introduced provisions to
the effect that in certain categories of cases, only one single expert will be
appointed for the purposes of importing expert knowledge into the case.
5.221 In some cases, the court will be given the power to determine the
expert to be appointed. In other cases, the court will direct a single expert to be
appointed by joint agreement between the parties.
5.222 The theory behind the appointment of a single expert is that such an
expert is more likely to present the issue in an objective and impartial light,

104
As already mentioned, in 1988 the Commission recommended that the rule
against hearsay should be abolished in civil cases: Report on the Rule Against
Hearsay in Civil Cases (LRC 25-1988). The Commission is currently (December
2008) involved in a new project on the hearsay rule as part of the Third
Programme of Law Reform 2008-2014.

279
rather than two experts, both of which may seek to present the issues in the
light most favourable to their instructing party.
5.223 However, it is apparent that not all categories of cases will be
conducive to the appointment of a single expert. Furthermore, the use of single
experts continues to be the subject of considerable debate, and has formed the
subject matter of the majority of literature on the subject of expert evidence. As
explained by Auld J:
―The same dilemma, most acutely present in an adversarial and jury
system, and at its sharpest in criminal trials, has remained the
subject of debate…and is still unresolved.‖105
5.224 It is useful to consider the extent that various jurisdictions have
introduced provisions providing for the use of single experts, in an attempt to
consider if reforms should be introduced in this jurisdiction.
(a) Ireland
5.225 Although there is no general, all-encompassing provision for the
appointment of single experts in this jurisdiction, legislative amendment has
provided that in certain categories of cases the court has the authority to
appoint single experts.
(i) Personal Injuries Cases
5.226 Section 20 of the Civil Liability and Courts Act 2004 permits the court
to appoint an independent ‗approved‘ expert witness in personal injuries cases,
which could be seen as an attempt to follow English reform. 106 Although it is
remains to be seen more clearly how this will operate in practice, Heffernan
discusses some of the potential obstacles that may occur in the operation of
s.20, and concludes that the provision is a half-hearted attempt at reform and its
lack of clarity indicates that it may have a limited practical effect. 107
5.227 Similarly, Holland argues that the imposition of ‗neutral‘ experts
carries the danger that the evidence from such experts will be given excessive
weight leading to greater usurpation of the role of the fact finder. He also cites
additional expense, practical difficulties in appointing such experts, their
remuneration, and what documents they would be entitled to as part of their

105
Auld ―A Review of the Criminal Courts of England and Wales by The Right
Honourable Lord Justice Auld‖ (September 2001) at Para 138
106
For a critical discussion of this provision see D. Holland ―Civil Liability & Courts
Act 2004: Some Thoughts on Practicalities‖ [2006] 6 Judicial Studies Institute
Journal 43
107
L. Heffernan ―Gauging the Reliability of Expert Witnesses‖ (2006) 6 JSIJ 140

280
investigation as being serious difficulties which will hamper the practical working
of s.20.108
(ii) Family Law Cases
5.228 Court appointed experts are also provided for in family law
legislation. Section 47 of the Family Law Act 1995 provides that the court may
procure a report (commonly referred to as a ―section 47 report‖) from such
person as it may nominate on any question affecting the family law proceedings
in question.
5.229 Similarly, in nullity cases, Order 70 Rule 32 of the Rules of the
Superior Courts 1986 provides for the appointment of a medical inspector or
two medical inspectors, normally a psychologist or psychiatrist, to carry out an
independent examination of the parties so that the Court might have the benefit
of such a professional assessment before determining the issues.
(iii) Competition Law Cases
Part IV of Order 63B of the Rules of the Superior Courts 1986 (inserted by the
Rules of the Superior Courts (Competition Proceedings) 2004) which governs
competition proceedings also provides for the use of court appointed experts in
competition cases. Rule 23 provides:
―IV. Assessors109
23.(1) The Court may, on the application of a party or of its own
motion and having heard the parties, appoint a person to assist the
court in understanding or clarifying a matter, or evidence in relation to
a matter, in respect of which that person (in this rule hereinafter
called an "expert") has skill and experience.
(2) The Court may appoint an expert on the nomination of the parties
or that of the court, and on such terms as to the payment of his fees
and otherwise as the Court may direct.

108
Holland ―Civil Liability & Courts Act 2004: Some Thoughts on Practicalities‖ [2006]
6 JSIJ 43; William Binchy also outlines a number of criticisms of the Section in
Binchy & Craven Civil Liability & Courts Act 2004: Implications for Personal Injury
Litigation (Firstlaw 2005)
109
The heading for this part of the Rules uses the word ‗assessors,‘ although as
previously discussed in this Consultation Paper this has been considered to
convey a different meaning to expert witnesses. However, the Rules go on to call
persons subject to the rule ‗experts‘ which indicates the intention that they be
expert witnesses as opposed to assessors.

281
 (3) The expert shall attend so much of the hearing and be available
thereafter to assist the Court as aforesaid, as the Court shall direct.
(4) Where the expert provides advice or other information to the
Court, the Court shall, where it considers it appropriate in the
interests of justice, inform the parties of such advice or information
and afford each of them an opportunity to make submissions in
respect of it.‖
(iv) Conclusion
5.230 Although the use of court appointed experts has been common in the
context of family law cases and cases involving the welfare of the child, the
provisions in the Civil Liability and Courts Act 2004 allowing for such experts to
be used in personal injuries cases have, it appears, been rarely invoked in
practice.
5.231 In England, provisions allowing for the use of court-appointed experts
are being used more and more frequently in litigation, and the Commission now
turns to examine these provisions.
(b) England and Wales
5.232 In recent years, the English civil law system has embraced wide use
of single experts in litigation. Furthermore, all available studies show that the
use of single experts, in English civil law at least, continues to grow.
(i) Civil Cases
5.233 Prior to the introduction of the Civil Procedure Rules, Order 40 of the
Rules of the Supreme Court empowered the judge to appoint an expert ―on the
application of any party.‖ However, in practice this provision was rarely
invoked.110
(I) Development of Use of Single Experts
5.234 In his 1995 Interim Report Access to Justice Lord Woolf
recommended the introduction of a single expert witness under the control of
the court.111 However, Lord Woolf‘s recommendation was widely criticised as
being anathema to the adversarial system in the submissions made subsequent
to this report.

110
Dwyer ―The Effective Management of Bias in Civil Expert Evidence‖ (2007) 26
CJQ 57 at 59; Woolf ―Access to Justice‖ (Interim Report to the Lord Chancellor on
the civil justice system in England and Wales, HMSO, London, 1995)
111
Woolf ―Access to Justice‖ (Interim Report to the Lord Chancellor on the civil
justice system in England and Wales, HMSO, London, 1995)

282
5.235 Nevertheless, in the final report he endorsed this recommendation,
but emphasised that under his vision for the use of single experts, it would be
the parties as distinct from the court itself who would decide on the expert to be
appointed, leaving only residual powers of appointment with the court in the
case where the parties cannot reach agreement.112
―It needs to be understood that a neutral expert, under the system I
am proposing, would still function within a broadly adversarial
framework. Wherever possible, the expert would be chosen by
agreement between the parties, not imposed by the court. Whether
appointed by the parties or by the court, he or she would act on
instructions from the parties. The appointment of a neutral expert
would not necessarily deprive the parties of the right to cross-
examine, or even to call their own experts in addition to the neutral
expert if that were justified by the scale of the case. Anyone who
gives expert evidence must know that he or she is at risk of being
subjected to adversarial procedures, including vigorous cross-
examination. This is an essential safeguard to ensure the quality and
reliability of evidence.‖113
(II) The Civil Procedure Rules
5.236 The reformed Civil Procedural Rules in England, introduced in the
wake of this report, gives the court the power under CPR 35.7 to direct that a
single expert give evidence in a particular case in lieu of testifying experts,
where two or more parties wish to give evidence on a particular issue.
5.237 Where the parties fail to come to an agreement on a particular expert
to be appointed, the court is given the power under CPR r. 35.7.3 to decide how
such experts are to be appointed, either from a list prepared by the parties, or in
such other manner as the court specifies.
5.238 CPR r. 35.7 provides:
―35.7 Court‘s power to direct that evidence is to be given by a single
joint expert
(1) Where two or more parties wish to submit expert evidence on a
particular issue, the court may direct that the evidence on that issue
is to given by one expert only.

112
This aim is reflected in the title of this section, which refers to single ‗joint‘ experts,
which reiterates that such experts should be, where possible, jointly appointed by
the parties.
113
Woolf, MR Lord (1996) Access to Justice, Final Report, HMSO at [17]

283
 (2) The parties wishing to submit the expert evidence are called ‗the
instructing parties‘.
(3) Where the instructing parties cannot agree who should be the
expert, the court may –
(a) select the expert from a list prepared or identified by the
instructing parties; or
(b) direct that the expert be selected in such other manner as
114
the court may direct.‖
5.239 CPR r. 35.8 sets out the instructions that can be given by the court
prior to the appointment of a single joint expert. It provides:
35.8 Instructions to a single joint expert
(1) Where the court gives a direction under rule 35.7 for a single joint
expert to be used, each instructing party may give instructions to the
expert.
(2) When an instructing party gives instructions to the expert he must,
at the same time, send a copy of the instructions to the other
instructing parties.
(3) The court may give directions about –
(a) the payment of the expert‘s fees and expenses; and
(b) any inspection, examination or experiments which the
expert wishes to carry out.
(4) The court may, before an expert is instructed –
(a) limit the amount that can be paid by way of fees and
expenses to the expert; and
(b) direct that the instructing parties pay that amount into court.
(5) Unless the court otherwise directs, the instructing parties are
jointly and severally liable (GL) for the payment of the expert‘s fees
115
and expenses‖
5.240 Part 6 of the Practice Direction accompanying CPR Part 35 is
interesting as it states that where the court holds that a single joint expert is to
give evidence on a particular issue, but there are several disciplines involved,
that such expert should be a leading expert in the dominant discipline and he or

114
Civil Procedure Rules r. 35.7
115
Civil Procedure Rules r. 35.8

284
she should prepare a general report but is also responsible for incorporating
contents of reports from experts in other disciplines relevant to the issue.
(III) Use of Single Experts
5.241 In the Auld Review of the English criminal justice system Auld LJ
reported that a survey in 2001 indicated that single joint experts were in use
40% of the time.116 More recently, the UK Register of Expert Witnesses 2007
survey on the practise of expert witnesses found that 73% of experts surveyed
had been instructed as single joint experts, a statistic that remains unchanged
in the annual survey since 2003.117
5.242 Such surveys reveal consistently high use of CPR r.35.7 and are a
considerable achievement in the context of reducing costs which was the main
goal of the reform.
(IV) Judicial Commentary on Single Experts
5.243 There has also been significant judicial commentary in England on
the use of single joint experts under the CPR rules. The operation of CPR r.35.7
was discussed in detail in Daniels v Walker.118 Here, a single expert had been
appointed to make a medical report which the defendant was not satisfied with.
This appeal sought to determine if the defendant was entitled to have his own
expert examine the plaintiff in these circumstances.
5.244 The defendant claimed that preventing him from adducing expert
evidence on a point in which he disagreed with the opinion of the joint appointed
expert came into conflict with Article 6 of the European Convention of Human
Rights because it amounted either to barring the whole claim of the defendant
or barring an essential or fundamental part of that claim. Lord Woolf
vociferously rejected this argument stating:
―Article 6 could not possibly have anything to add to the issue on this
appeal. The provisions of the CPR, to which I have referred, make it
clear that the obligation on the court is to deal with cases justly. If,
having agreed to a joint expert's report a party subsequently wishes
to call evidence, and it would be unjust having regard to the
overriding objective of the CPR not to allow that party to call that
evidence, they must be allowed to call it….It would be unfortunate if
case management decisions in this jurisdiction involved the need to

116
Auld ―A Review of the Criminal Courts of England and Wales by The Right
Honourable Lord Justice Auld‖ (September 2001) at Para 139
117
UK Register of Expert Witnesses ―Your Witness Newsletter‖ (No 49 Sept 2007,
JS Publications) at 2
118
[2000] EWCA Civ 508 (3 May 2000)

285
 refer to the learning of the European Court on Human Rights in order
for them to be resolved. In my judgment, cases such as this, do not
require any consideration of human rights issues, certainly issues
under article 6. It would be highly undesirable if the consideration of
those issues was made more complex by the injection into them of
article 6 style arguments.‖119
5.245 However, Lord Woolf went on to find that the trial judge had been
wrong to prevent the defendant from adducing his own expert evidence on the
contentious point. He outlined the correct approach to be taken in situations
such as this:
―In a substantial case such as this, the correct approach is to regard
the instruction of an expert jointly by the parties as the first step in
obtaining expert evidence on a particular issue. It is to be hoped that
in the majority of cases it will not only be the first step but the last
step. If, having obtained a joint expert's report, a party, for reasons
which are not fanciful, wishes to obtain further information before
making a decision as to whether or not there is a particular part (or
indeed the whole) of the expert's report which he or she may wish to
challenge, then they should, subject to the discretion of the court, be
permitted to obtain that evidence.‖
5.246 The interpretation given by Lord Woolf to CPR r.35.7 in this case
ensures that the single expert system will not be subjected to the accusation
that it denies a party the right to put forward a contrary argument in
circumstances where they do not agree with the opinion of the single expert.
5.247 This implies that there are sufficient safeguards in place to allow for
each party to give their own opinion, where necessary, but also allowing for an
opinion to be given by one expert, where this is possible thus promoting
expediency and better case management.
5.248 In Quarmby Electrical v Trant t/a Trant Construction120 Jackson J also
praised the use of single experts:
―I fully accept that in the larger construction cases the device of a
single joint expert is generally reserved for subordinate issues or
relatively uncontroversial matters. However, in the smaller cases,
such as this one, if expert assistance is required, it is difficult to see
any alternative to the use of a single joint expert in respect of the
technical issues. If adversarial experts had been instructed to

119
[2000] EWCA Civ 508 (3 May 2000) at [24] and [26]
120
[2005] EWHC 608 (TCC)

286
 prepare reports and then give oral evidence in the present case, I do
not see how there could have been a trial at all. The respective
experts' fees and the trial costs would have become prohibitive. In
lower value cases such as this one, I commend the use of single joint
experts. The judge, of course, remains the decider of the case. He is
not bound by everything which the single joint expert may say.
However, the judge is able to perform his functions within more
sensible costs parameters.‖
(ii) Criminal Law
5.249 In his review of the English Criminal Justice System Auld LJ
considered the merits of introducing a system of single experts in criminal
cases. He argued that such a measure may go against the right to a fair trial as
guaranteed in Article 6 of the European Convention of Human Rights, and
would also conflict with the right to lodge a defence.
5.250 He explained that if a court expert gave evidence on an issue that
was highly controversial and central to the case at hand, the accused would be
required to instruct their own expert to advise them on the advice given by the
court expert, but this expert would not be entitled to cross examine the court
expert or outline a contrary view in court.
5.251 Furthermore, he argued, where the appointment of a single expert is
left to the discretion of the court, judges are more likely to continue to allow the
defence or prosecution call their own experts to avoid the danger that the expert
ultimately decide the issue, or in some instances, the case itself. This would
thus make the provision a ―dead letter.‖ 121
5.252 However, he did acknowledge that where expertise was needed on a
matter that was not in issue, or on an issue where the parties were content to
have it resolved by a single expert, there is no grounds for not using single
experts in these circumstances. Auld LJ therefore recommended that;
―where there is an issue on a matter of importance on which expert
evidence is required, the court should not have a power to appoint or
select an expert, whether or not it excludes either party from calling
its own expert evidence; and
where there is no issue, there is or one in which the parties are
content that the matter should be resolved by a single expert, they

121
Auld ―A Review of the Criminal Courts of England and Wales by The Right
Honourable Lord Justice Auld‖ (September 2001) at Para 140

287
 should be encouraged to deal with it in that way, agreeing his report
or a summary of it as part of the evidence in the case.‖ 122
5.253 Therefore, the use of single experts is not as viable in the criminal
context, as this is likely to be seen as an infringement of the right of the accused
to present his or her own evidence.
5.254 However, Criminal Procedure Rule 33.7 provides that where more
than one co-defendant wishes to adduce expert evidence on the same issue,
the court may order such evidence to be given by a single expert to be
appointed jointly by the co-defendants, or by the court or in a manner directed
by the court where the co-defendants fail to agree.
(iii) Conclusion
5.255 Surveys on the use of single experts under the civil procedure rules
reveal that the rule is operating very satisfactorily in practice. Furthermore,
judicial comment appears to be very much in favour of the use of such a
structure.
5.256 The seemingly successful use of single experts in England, in the
civil context at least, is very significant in terms of our jurisdiction considering
one of the main arguments made against the use of single experts is that it is
not consistent with an adversarial system.
5.257 As the English and Irish legal systems are founded on the adversarial
model, it is interesting that the English system embraced so easily the use of
single experts while in Ireland we appear to be reluctant to do the same.
(c) Australia
5.258 In the wake of considerable commentary on this issue, several
Australian jurisdictions have implemented provisions allowing for the use of
single or court appointed experts.123
5.259 However, it has been acknowledged that as of yet, appointments of
single or court appointed experts in general in Australia remain the exception
rather than the rule.124

122
Auld ―A Review of the Criminal Courts of England and Wales by The Right
Honourable Lord Justice Auld‖ (September 2001) at Para 141
123
See for example Federal Court Rules (Cth) Statutory Rules 1979 No. 140 as
amended made under the Federal Court of Australia Act 1976 Order 34A r 2;
Uniform Civil Procedure Rules 2005(NSW) r. 31.37, r. 31.46; Uniform Civil
Procedure Rules 1999 (Qld) r. 425(1); Family Law Rules 2004 (Cth) r. 15.44

288
5.260 A recent survey of Australian judicial perceptions of expert evidence
found a high level of support for single or court appointed experts. Although few
respondents had used such measures, most respondents stated that they had
not used court-appointed experts either because they had not been asked to do
so by the advocates appearing before them or because they had determined
such a course not to be necessary.
5.261 However, others stated a reluctance to use them ―because of the
inroads it was perceived that they would make upon the role of the judge as a
―ring-keeper‖ within the adversarial model.‖125
(i) New South Wales
5.262 New South Wales has had provisions allowing for the use of court
appointed experts for many years, albeit limited to the context of civil
proceedings. There are no existing rules providing for the use of single experts
in criminal proceedings.
5.263 Following on from the recommendations of the Law Reform
Commission in its Report on Expert Witnesses,126 the Uniform Civil Procedure
Rules 2005 now make a clear distinction is made between single experts jointly
appointed by the parties, and single experts appointed by the courts, and
different rules govern the two.127

124
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
at 3.34; Sperling ―Expert Evidence: The Problem of Bias and Other Things‖
(2000) 4 JR 347
125
Freckelton, Reddy & Selby ―Australian Judicial Perspectives on Expert Evidence;
an Empirical Study‖ (Australian Institute of Judicial Administration, 1999) at 9.13
126
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
recommendation 8.1
127
These provisions were inserted by; Uniform Civil Procedure Rules (Amendment
No 12) 2006. GG No 175 of 8.12.2006, p 10468 Date of commencement, on
gazettal.

289
(I) Parties’ Single Expert128
5.264 Part 31, Division 2, Subdivision 4 UCPR provides that at any stage of
the proceedings, the court may order that an expert be engaged jointly by the
parties, where an issue for an expert arises. 129 Where, the parties fail to agree
on an expert, the expert will be appointed in accordance with the directions of
the court.130
5.265 This part also contains rules allowing instructions to be given to a
single expert jointly by the parties; allowing the single expert to apply to the
court for directions; requiring the single expert to send a copy of his or her
report to the parties; allowing the parties to seek clarification of the report;
permitting either party to cross examine the expert in court; prohibiting either
party from adducing the evidence of any other expert where a single expert has
been appointed, and; providing for the remuneration of single experts.
5.266 The Law Reform Commission of New South Wales, who
recommended the introduction of a provision allowing for the use of parties‘
single experts, explained that the primary objective of such a provision is to
―assist the court in reaching just decisions by promoting unbiased and
representative expert opinion.‖ An additional objective is to minimise costs and
delay to the parties to litigation by limiting the amount of expert evidence
presented to the court.131
(II) Court Appointed Experts
5.267 Part 31, Division 2, Subdivision 5 UCPR provides that, at any stage
of the proceedings, where an issue for an expert arises, the court may appoint
an expert to inquire into and report on the issue and give any instructions as the
court sees fit.

128
The Law Reform Commission of New South Wales recommended the
terminology used for the type of experts envisaged here be ―joint expert
witnesses.‖ They point out that various jurisdictions use different terminology, for
example ―single joint expert‖ in the English CPR rules (where the idea originated),
―single expert‖ in the Queensland Supreme Court, and ―agreed expert‖ in the ACT
Supreme Court, however, all of these terms provide for the same type of
structure, namely, the appointment of an expert witness, by joint agreement of the
parties, to give expert testimony in a case. (New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 7.4-7.7)
129
Uniform Civil Procedure Rules 2005(NSW) r 31.37(1)
130
Uniform Civil Procedure Rules 2005(NSW) r 31.37(2)
131
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
at 7.7

290
5.268 This part, like the above part governing parties‘ single experts, also
contains provisions; governing the instructions that can be given to court
appointed experts; allowing the expert to apply to the court for instructions;
requiring the expert to send a copy of their report to the registrar; allowing the
parties to seek clarification on an aspect of the expert‘s report and to cross
examine the expert; prohibiting either party from adducing the evidence of any
other expert where a court appointed expert has been appointed, and; providing
for the remuneration of single experts.
(III) Single v Court Appointed Expert
5.269 In its Report on Expert Witnesses in the 2005, the Law Reform
Commission of New South Wales recommended that provisions be
incorporated into the UCPR rules allowing for the appointment of ‗joint expert
witnesses,‘ a recommendation that led to the insertion of Subdivision 4 UCPR
on Parties‘ Single Experts.132
5.270 In the report, the Law Reform Commission explained why such a
reform was needed by outlining why the work they envisaged would be done by
a single joint expert could not be carried out by a court appointed expert.
5.271 The Commission acknowledged that both concepts are similar as
neither has been engaged by only one of the instructing parties. However, they
argue that there are fundamental differences between the two, not least in the
degrees of control the court and the parties have over both types of experts.
5.272 With a parties‘ single expert, it is the parties who have responsibility
for selecting the expert and managing the process of their appointment
including the instructions given to the expert and deciding whether or not to
adduce the report of the expert in evidence.
5.273 With a court appointed expert, the court has sole responsibility for
choosing the expert (although it can delegate the powers of selection to the
parties) and for the instructions to be given to an expert. Furthermore, unless
the court orders otherwise, the report of a court appointed expert will be in
evidence in any hearing concerning a matter to which it relates, and the parties
have no say in this matter.
5.274 The reforms suggested by the Law Reform Commission of New
South Wales were adopted almost in their entirety in the UCPR Rules. There is
but one notable difference between the Commission‘s recommendations and
the reformed UCPR rules. The Commission had recommended that, in the
context of court appointed experts, the rule should be amended so that instead

132
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
at 7.34

291
of providing that additional expert evidence cannot be adduced except by leave,
it would provide that an order can be made prohibiting other expert evidence if
there is a special reason for doing so.133
5.275 The Commission had argued that such a reform was appropriate
because the appointment of an expert by the court would not ordinarily be
inconsistent with the parties calling expert evidence of their own. Nevertheless,
UCPR r. 31.52 provides;
―Except by leave of the court, a party to proceedings may not adduce
evidence of any expert on any issue arising in proceedings if a court-
appointed expert has been appointed under this Division in relation to
that issue.‖134
(IV) Land and Environment Court of New South Wales
5.276 In contrast with the limited use of single and court appointed experts
in other jurisdictions, in recent times, the Land and Environment Court of New
South Wales has made extensive use of court appointed experts in
environmental planning and protection appeals cases. 135
5.277 Interestingly, in practice in this court, rather than court discretion in
favour of single experts, there is a presumption operating since 2004 that in
relation to any issue requiring expert evidence, a court expert is to be
appointed.136
5.278 Although each case will be decided on its merits, the court will
appoint an expert once satisfied that there may be cost savings to the parties or
where the issue involved is such that the integrity of the ultimate decision will
benefit from the appointment of an expert by the Court.137
5.279 Between March 2004 and April 2005, 474 court experts were
appointed, all but 10 appointed by mutual agreement between the parties. This

133
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
at 8.37
134
Uniform Civil Procedure Rules 2005(NSW) r 31.52
135
New South Wales Law Reform Commission Expert Witnesses (Report 109, 2005)
at 3.37
136
McClellan ―Expert Witnesses: Recent Developments in NSW‖ Paper delivered at
the Australasian Conference of Planning and Environmental Courts and Tribunals
2006 (16 September 2006)
137
McClellan ―Expert Evidence – Aces up Your Sleeve?‖ Paper presented at the
Industrial Relations Commission of New South Wales Annual Conference 2006
(20 October 2006)

292
development has led to a significant reduction in hearing times within the court.
Furthermore, feedback on the structure from judges, legal practitioners and
experts themselves about their opinion of the quality of the evidence given by
court appointed experts consistently found that evidence from persons
appointed as court experts ―reflects a more thorough and balanced
consideration of the issues than was previously the case.‖ 138
(ii) Family Law Court
5.280 Rule 15.44(1) of the Family Law Rules 2004 (Cth) which govern
proceedings in the Family Court of Australia provides for the use of a single
expert jointly appointed by the parties, where the parties agree that expert
evidence may help to resolve a substantial issue in the case.
5.281 Interestingly, Rule 15.44(2) states that the permission of the court is
not needed in order for a party to adduce evidence or tender a report of a single
expert.
5.282 The parties must jointly decide on the expert to be appointed.
However, where the parties cannot agree, the court has the power to order that
the parties confer for the purposes of agreeing, and failing this the court can
appoint an expert from a list drawn up by the parties. 139
5.283 However, Rule 15.45 provides that the court does have the power to
order evidence to be given by a single expert, on application or on its own
initiative, where it considers this necessary and appropriate.
5.284 Rule 15.54(3) provides that the instructions to be given to single
experts must be agreed jointly by the parties and, if an independent children‘s
lawyer has been appointed in the case, by the independent children‘s lawyer.
The court can order the parties to confer for the purposes of agreeing on
instructions to be given to the single expert. 140
5.285 These rules reveal that the court has very little input into the use of
single experts in the Family Court of Australia. While the court does have the
power to order evidence to be given by a single expert and can make orders
requiring the parties to confer on conditions governing their appointment, 141 for
the most part it is the parties who decide on the use of a single expert, on who

138
McClellan ―Expert Witnesses – The Experience of the Land and Environment
Court of New South Wales‖ Speech given at the XIX Biennial Lawasi Conference
(20-24 March 2005 Gold Coast) at 14
139
Rule 15.46(a)-(c)
140
Rule 15.46 (e)
141
For the range of orders the court can make see Rule 15.46

293
to appoint, the instructions to be given, and whether or not to adduce the
evidence of such expert.
(iii) Queensland
5.286 The Uniform Civil Procedure Rules 1999 (Qld) also provide for the
use of Court Appointed Experts in civil proceedings in the Queensland courts.
5.287 Section 425(1) gives the court the power to appoint a court expert,
from a list of experts kept by the court or otherwise, for the purposes of court
proceedings. Section 425(3) further gives the court the power to require the
parties to provide a list of experts for the purposes of appointment as a court
expert.
5.288 Section 428 provides that where expert evidence has been given by
a court expert, a party may not adduce further expert evidence on the same
matter without the leave of the court.
5.289 These rules give considerable power to the court to control the expert
evidence of the court expert, and in this way, provide a sharp contrast with the
Family Law Rules where the expert retains most control.
(iv) Conclusion
5.290 An examination of the various Australian jurisdictions shows a very
clear distinction between two types of single experts; those jointly appointed by
the parties, and court appointed experts.
5.291 While some jurisdictions for example New South Wales, have
provisions allowing for both these type of experts, other jurisdictions only
provide for party appointed single experts, with the court retaining a residual
discretion to appoint an expert where the parties cannot agree on a single
expert.
5.292 This is significant because, it is submitted; allowing a single expert to
be appointed by the parties retains the adversarial nature of proceedings and
removes one of the main criticisms of the system of single experts, but also
reduces costs and delays in litigation by preventing expert evidence on the
same issue being repeated by experts for both sides.
(d) The Use of Single and Court Appointed Experts: Conclusion
5.293 The successful use of single experts in other jurisdictions implies that
it is a practice that should possibly be adopted here, albeit in certain categories
of cases only.
5.294 It is clear that it may be virtually impossible to recommend the use of
single experts in criminal cases, as the constitutional right to a fair trial would
likely be interpreted as necessitating the ability of each party to present their

294
own evidence and the right to present evidence contrary to that put forward by
the single expert.
5.295 However, less criticism may attach to the suggestion that single
experts be appointed in cases involving non contentious issues for which expert
testimony is needed.
5.296 However, it must also be noted that a system whereby the parties
jointly agree on a single expert, as opposed to a single expert chosen and
appointed by the court, is to be preferred. Furthermore, it is clear that both
parties must retain the ability to cross examine the expert if the adversarial
character of the system is to be retained.
5.297 As already mentioned, there is a plethora of literature both
advocating and opposing the use of single or court appointed experts.142 The
main arguments made will now be summarised.
(i) Advantages
The use of single or court appointed experts is the best possible way of
removing the problem of adversarial bias in the giving of expert
testimony. Having one expert appointed by the court and not by the
parties would remove any perception of bias on the part of the expert
that would be generated by his desire to do right by the instructing
party. The evidence given by a single expert will be more likely to be
considered as an objective, reasonable, representation of professional
opinion on the issue than that of a party appointed expert, whose views
may have been coloured by his affiliation with the instructing party.
It would also have the effect of reducing the excess costs and delays
generated by experts who have different opinions battling it out in
court. Time and money will be saved by the reduction in the number of
experts, the removal of time spent by party experts exchanging reports,

142
See inter alia Australian Law Reform Commission ―Adversarial Background Paper
6 Experts‖ (1999); McClellan ―Expert Witnesses – The Experience of the Land
and Environment Court of New South Wales‖ Speech given at the XIX Biennial
Lawasi Conference (20-24 March 2005 Gold Coast) at 14; Woolf ―Access to
Justice‖ (Interim Report to the Lord Chancellor on the civil justice system in
England and Wales, HMSO, London, 1995) and Woolf, MR Lord (1996) Access to
Justice, Final Report, HMSO; Sperling ―Expert Evidence: The Problem of Bias
and Other Things‖ (2000) 4 JR 347; Family Court of Australia ―The Changing
Face of the Expert Witness‖ (2002) at 14 Cited in New South Wales Law Reform
Commission Expert Witnesses (Report 109, 2005) at 3.35; Howard ―The Neutral
Expert: A Plausible Threat to Justice‖ (1991) Crim. L.R. 98; New South Wales
Law Reform Commission Expert Witnesses (Report 109, 2005) at 7.14-7.33

295
 the reduction in time spent giving expert evidence and the fact that the
court has some control over experts' fees .
Where two parties agree on the appointment of a joint expert, this
expert is likely to recommend settlement, which may limit court times
and reduce costs for both parties.
It would reduce the possibility of the situation occurring as has in the
US where both parties ‗shop‘ for expert witnesses who may be more
favourable to their claim and may help prevent potential conflicts of
interest.
If the expert reports to the court early in the proceedings, this may
result in an early resolution of the dispute.
The expert is not being paid by any one party and therefore is more
likely to be impartial.
Expert witnesses will not be placed in an adversarial role and the court
will not be forced to choose between the opinions of two opposing
experts.
Another significant advantage of a court expert in merit appeals is that
the parties have an opportunity to discuss with an expert, who has no
brief for both side, and who both sides have confidence in, the merits
and problems of the particular proposal.
Although there are issues and instances where the appointment of a
single or court appointed expert will not be appropriate, this should be
a matter for the court to consider when to allow such appointments,
and should not be used as an argument against introducing such
provisions at all.
(ii) Disadvantages
The appointment by the court of its own expert witness is contrary to
the fundamental premise of the adversarial system. Such a system
does not facilitate the fact that, under the adversarial model, the
contesting parties have the right to gather evidence and present their
own case and to call witnesses of their own choice to support that
case, in order to improve the likelihood of the court finding in their
favour. As pointed out by JF v DPP;143
―…the mere presence, actual or anticipated, of an expert on the other
side provides a wholesome discipline.‖ 144

143
[2005] IESC 24 (26 April 2005)
144
[2005] IESC 24 (26 April 2005)

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 With such a system, there is a danger that the court might place undue
reliance on the evidence of the court expert, with the result that it will
be the court expert and not the judge who will in practice decide the
case thus usurping the role of the judge.
If the parties are permitted to call their own ‗shadow‘ experts in order to
reduce that concern, the appointment of a court expert in addition to
the parties own experts may cause delay and an increase in costs
without any countervailing benefit;
Even if parties are precluded from calling their own experts, they would
still have to incur the cost of retaining experts to advise them on the
likely outcome of the proceedings and to assist in preparation for cross-
examination of the court expert, so that the saving in costs might be
less than anticipated.
A court expert may be unable to deal with the situation where there are
different schools of thought, that is, where more than one acceptable
view on a particular issue is held in the professional community.
Where the issue is novel it may be the subject of intense debate and
contention within the professional community, with a single expert,
there is a risk that such expert may only present one side of this
debate, depending on their viewpoint.
The advantages in terms of cost and delays that may be gained by the
use of a single expert may be offset in other ways. Where the issue
which is to be the subject matter of the evidence of a single expert is
particularly contentious, technical or specialised, the parties may have
trouble agreeing on a single expert to be appointed which may lead to
delays created by the negotiations on this issue. Further costs may be
accrued where each party enlist the aid of additional experts to advise
them on the merits and appropriateness of the single expert suggested
by the other party to be appointed.
There is a lack of certainty that a court-appointed expert will be any
more objective than a party appointed one. As already discussed, the
causes of bias are complex, and not all are generated by allegiance to
the instructing party. Howard expressed doubt at the assertion that
single or court appointed experts are likely to reduce the possibility of
bias;145

145
Howard ―The Neutral Expert: A Plausible Threat to Justice‖ (1991) Crim. L.R. 98
at 101

297
 ―…it is slightly mysterious that it should be thought that experts are
venal mountebanks when engaged by the parties but transformed
into paragons of objectivity when employed by the courts.‖
In his view, the adversarial system is more suited to dealing with the
bias problem than the inquisitorial as it requires both parties to conduct
a thorough analysis of the other‘s evidence in the hopes of showing it
to be misleading.
―Expert evidence produced under the dual pressures of expectation
and the threat of attack by the opposition is likely to be superior to
that produced by one of a corps of supposedly disinterested
individuals drawn from a list approved by the bureaucracy.‖ 146
There is a danger that the selection criteria for court appointed experts
will result in the situation whereby only those with safe or popular views
would be appointed as neutral experts to assist the court.
The right to a fair trial is jeopardised in circumstances where the
expert‘s report is kept from the parties thus preventing them from
challenging or testing its contents. Therefore, to prevent this it would be
necessary to allow each party to introduce their own expert in order to
rebut the court expert‘s evidence – this leads to increase costs, delay
and inefficiency.
It is also arguable that, in such a system, the court expert would be
immune from direct challenge, regardless of his arguments, and the
party‘s own expert would effectively be ‗gagged.‘ As Howard argues;
―The public debate of the parties‘ respective cases would be
supplanted by a decision, reached in secret, on the basis of
unidentified information, by a person whose authority had been
established in advance, and whose views and competence could not
be challenged by the parties.‖ 147
(iii) Conclusion
5.298 In light of the above, it is clear that the introduction of a provision
allowing for the appointment of a single expert would involve a significant
change in current law and practice. It may be that some tangible change to the
current law could be made to facilitate parties to decide jointly on the

146
Howard ―The Neutral Expert: A Plausible Threat to Justice‖ (1991) Crim. L.R. 98
at 101
147
Howard ―The Neutral Expert: A Plausible Threat to Justice‖ (1991) Crim. L.R. 98
at 105

298
appropriate expert to be appointed, rather than being imposed by the court. The
Commission would welcome submissions on this matter.
5.299 The Commission invites submissions on whether parties could be
facilitated to decide jointly on an appropriate expert to be appointed, rather than
having a single expert being imposed by the court.
(2) Panels of Experts or Mixed Panels
5.300 Along with encouraging the use of single or court appointed experts,
many proponents of change also propose different structures based on the idea
of having an assembly of experts, to use their collective wisdom to give an
expert opinion. There are various forms this could take;
(a) Panel of Experts
5.301 There has been considerable support for the adoption, in some cases
at least, of the Australian Competition Tribunal model which consists of a panel,
or ‗hot tub‘ of opposing experts who debate the issue amongst themselves
without initial intervention from lawyers. 148
5.302 Under this structure, the opposing experts meet, without initial
intervention from legal counsel, and debate the issues amongst themselves. 149
The procedure is best summarised by Heerey J:
―This procedure involves the parties‘ experts giving evidence at the
same time. Written statements will have been filed prior to trial. After
all the lay evidence on both sides has been given, the experts are
sworn in and sit in the witness box – or at a suitably large table which
is treated notionally as the witness box. They do not literally sit in a
hot tub. Constraints of propriety and court design dictate a less
exciting solution. A day or so previously, each expert will have filed a
brief summary of his or her position in the light of all the evidence so
far. In the box the plaintiff‘s expert will give a brief oral exposition,
typically for 10 minutes or so. Then the defendant‘s expert will ask
the plaintiff‘s expert questions, that is to say directly, without the
intervention of counsel. Then the process is reversed. In effect, a
brief colloquium takes place. Finally, each expert gives a brief

148
See Heerey ―Expert Evidence: The Australian Experience‖ (2001) 7 (3) BR 166;
O‘Sullivan ―A Hot Tub for Expert Witnesses‖ (2004) 4 JSIJ 1; McInnis ―Expert
Evidence and the Federal Courts – Current Developments‖ Paper presented at
Experts and Lawyers: Surviving the Brave New World Conference (October 2005,
Broome, Western Australia)
149
O‘Sullivan ―A Hot Tub for Expert Witnesses‖ (2004) 4 JSIJ 1

299
 summary. When all this is completed, counsel cross-examine and re-
150
examine in the conventional way.”
5.303 In Quantas Airways Ltd151 the Tribunal attempted to explain the way
in which it was envisaged the panel would operate, and the role of expert
evidence within the Competition Tribunal;
―The role of expert witnesses appearing before the Tribunal is to
instruct on areas of specialist knowledge in a manner that is
ultimately designed to inform rather than to advocate a particular
view. Obviously, parties will call upon experts whose opinions
support their view of the case. However, it is not appropriate for an
expert witness to act as an advocate for the instructing party at all
costs, and professional witnesses should be willing to concede points
which, whilst not advancing the case of the party engaging them,
they believe to be open as a fair and reasonable assessment on the
material before them. The Tribunal will be assisted by expert
witnesses who can clearly explain the relevant issues and concepts
and can pinpoint the differences between opinions in the profession
and the reasons for such differences so that an informed decision
can be made as to which opinion should be accepted on the
available evidence. The Tribunal will not be assisted by experts who
uncritically push a party line, avoid challenging questions, and seek
to obscure the real issues in contention.‖ 152
5.304 However, the panel of experts procedure has been criticised by some
commentators, and despite its proponents, has been largely confined to the
Competition Tribunal.153 Davies LJ attempted to explain why the ‗hot tub‘
concept has not been adopted by other courts within Australia, or indeed,
internationally154
―Heerey J‘s view that an expert‘s adversarial bias is often exposed in
the forensic process shows, in my respectful opinion, a naïve but
unfounded faith in the adversarial system. One of two possible

150
Heerey ―Expert Evidence: The Australian Experience‖ (2002) 7 (3) BR 166
151
[2004] ACompT 9 (12 October 2004)
152
[2004] ACompT 9 (12 October 2004) at [216]
153
McInnis ―Expert Evidence and the Federal Courts – Current Developments‖
Paper presented at Experts and Lawyers: Surviving the Brave New World
Conference (October 2005, Broome, Western Australia)
154
Davies ―Recent Australian Developments: A Response to Peter Heerey‖ [2003]
23 CJQ 396

300
 consequences is much more likely at the end of that process. The
first is that the judge will be left with two opposed but apparently
convincing opinions by equally well-qualified experts, neither of them
has been shaken in the process. The second and, unfortunately more
likely, consequence is that the judge will be unwittingly convinced by
the more articulate and apparently authoritative personality. The
likelihood of this latter consequence increases as the complexity of
the question in issue increases.
So, in hindsight, after the introduction of the reforms I have outlined,
the Hot Tub method seemed, to many, to be too cumbersome, too
expensive and too adversarial. Hence, the failure to adopt it in other
courts.‖ 155
5.305 McInnis has suggested that despite its shortcomings, the procedure
has its advantages. He argues that it could be an appropriate system to
introduce at a pre-trial stage; as a preliminary step prior to mediation or at the
least to narrow contentious issues at trial. 156
(b) Mixed Panel
5.306 Another alternative which could be introduced in certain categories of
cases could be a procedure whereby the issues in a case would be decided by
a mixed panel composed of a both a number of experts in the particular area
and members of the judiciary, thus combining both inquisitorial and adversarial
elements into a new structure.
5.307 This is the approach taken in Australia in the South Australia
Environment, Resources and Development Court in cases involving land use,
environmental protection and management.157 Here, hearings are conducted by
a court which is made up of both judges and experts in areas relevant to the
court‘s jurisdiction, such as planner, engineers, architects and scientists, who
are referred to as Commissioners.158

155
Davies ―Recent Australian Developments: A Response to Peter Heerey‖ [2003]
23 CJQ 400
156
McInnis ―Expert Evidence and the Federal Courts – Current Developments‖
Paper presented at Experts and Lawyers: Surviving the Brave New World
Conference (October 2005, Broome, Western Australia)
157
This court was established in 1993 under the Environment, Resources and
Development Court Act 1993
158
Hodgson ―The Role of the Expert Witness – A Court Perspective‖ Paper delivered
to the Planning Education Foundation Seminar “Evidence, Experts and
Experience” (15 October 2004, Adelaide)

301
5.308 The court is composed of three full time Commissioners who are not
lawyers but who have specialist knowledge in town planning, and a number of
part time Commissioners with expertise in other relevant areas who can be
called where needed. The Court also sits with two full time judges.159
(c) Conclusion
5.309 As in the case of the single expert, the Commission would welcome
submissions on whether panels of experts or mixed panels should be used in
certain types of cases.
5.310 The Commission welcomes submissions on whether panels of
experts or mixed panels should be used in certain types of cases.
(3) Special Jury
5.311 The concept of the special jury as it has been used throughout
history was discussed in Chapter One. Here it was explained that although
various types of special juries were used over the centuries, the use of a jury
composed of members specially chosen because of their specialised
th
knowledge about the issues involved in the case ceased in Ireland in the 20
century, principally due to concerns it represented ―survival of class legislation,‖
due to the property qualification.160
5.312 However, it has been recommended by many academics that the
reintroduction of a special jury in cases of a particularly complex or specialised
nature, has considerable merit.161
(i) Advantages
5.313 The specialist knowledge of the jury would ensure that the experts
are best placed to consider the issues in the case, particularly in cases involving
particularly esoteric concepts and issues.
5.314 Such a system would lessen the likelihood of jury confusion or
misunderstanding in relation to the central issues involved in the case, and
increase the likelihood of the jury reaching a well reasoned and principled
decision.

159
See ―Courts Administration Authority‖ Available at:
http://www.courts.sa.gov.au/courts/environment/index.html.
160
18 Dáil Debates, (15 February 1927), Orders of the Day. Juries Bill 1927 –
Second Stage (Cited in Howlin ―Special Juries: A Solution to the Expert Witness?‖
(2004) 12 ISLR 19 at 41)
161
See inter alia Howlin ―Special Juries: A Solution to the Expert Witness?‖ (2004)
12 ISLR 19; Jones ―The Case for Special Juries in Complex Civil Litigation‖
(1980) 89 Yale LJ 1155;

302
5.315 Furthermore, the advantages of trial by jury as opposed to trial by
judge alone would be preserved ensuring that the verdict reached represents
the views of a body of reasoned individuals and protects against ―the
professional or perhaps overconditioned or biased response of a judge.‖ 162
(ii) Disadvantages
5.316 The disadvantage of this is that, particularly in a jurisdiction as small
as Ireland, where the subject matter in question is so technical as to warrant the
use of a special jury, there is likely to be a limited number of candidates who
could sit on the jury.
5.317 The relative sparsity of the pool of potential experts means that those
who are qualified to sit on a particular jury, are likely to have some
acquaintance with the parties to the litigation, and as jury room deliberations are
not accessible, the potential for bias within the judgment of the special jury
would be undetectable.
5.318 Furthermore, seeking twelve experts in a particular area who are
willing to take several weeks out of their professional careers to sit on a jury is
likely to prove impossible.
5.319 Furthermore, such a jury would be unlikely to be considered as
complying with the Constitutional right under Article 38 to trial by jury by one‘s
peers as a panel of experts might not be considered as trial by a fair cross
section of one‘s peers. In deBurca and Anderson v Attorney General163 Henchy
J interpreted the constitutional meaning of ―jury‖ and concluded:
―…the jury must be drawn from a pool broadly representative of the
community so that its verdict will be stamped with the fairness and
acceptability of a genuinely diffused community decision.‖ 164
5.320 Therefore, it is probable that a Constitutional amendment would
necessary in order to introduce any system of special juries. 165
5.321 In its report on a Fiscal Prosecutor and a Revenue Court the Law
Reform Commission considered the reform option of the introduction of a

162
Taylor v Louisiana 419 US 522, 530 (1975) Cited in: Jones ―The Case for Special
Juries in Complex Civil Litigation‖ (1980) 89 Yale LJ 1155 at 1159
163
[1976] IR 38
164
[1976] IR 38 at 57
165
Howlin ―Special Juries: A Solution to the Expert Witness?‖ (2004) 12 ISLR 19 at
46

303
special Revenue Court composed of experts in an area other than law, for
example in tax or accounting.166
5.322 The Commission concluded that it may be considered
unconstitutional if the adjudicator in a trial did not have a legal qualification.
Furthermore, individuals not legally qualified would not satisfy the qualifications
for appointment as a judge as set down by statute, and so their relevant
experience would be doubtful.
(iii) Conclusion
5.323 The Commission would not recommend the introduction of a system
whereby special juries are to be used in any category of cases.
(4) Court Assessors or Advisors
5.324 As already discussed in Chapter One, there is legislation currently in
force in this jurisdiction providing for the use of assessors, as opposed to expert
witnesses, in certain categories of cases.
5.325 Nevertheless, the use of assessors is rare in practice, and they are
predominantly confined to admiralty proceedings.
5.326 However, a number of academics have suggested that increased use
of assessors, who would act not as witnesses giving evidence in court, but as
advisors to the judge, assisting him or her to understand technical concepts, is
a viable replacement of the current system of party appointed expert
witnesses.167
5.327 An assessor would differ from a court appointed expert in a number
of ways. The assessor would be appointed by the court for the purposes of
assisting the court by giving it specialist knowledge on the issues involved in the
case. In this regard, the assessor would not be considered a witness so would
not be required to swear an oath to the court.
5.328 Furthermore, the information given to the court would not be
available to the parties and the parties would not be able to cross examine the
expert assessor on the information given. The parties therefore have no way of
assessing the independence or potential for bias on the part of the assessor.
5.329 It is also arguable that the use of assessors is unlikely to lead to
reduced costs as both parties are likely to continue to recruit their own experts

166
Law Reform Commission ―Report on a Fiscal Prosecutor and the Revenue Court‖
(LRC 72-2004) at 8.31
167
See for example Heerey ―Expert Evidence: The Australian Experience‖ (2001) 7
(3) BR 166

304
or advisors if they are not entitled to have regard to the information given by the
assessor in court.
5.330 Based on these factors, increasing the use of assessors in either
criminal or civil litigation is unlikely to be considered beneficial.
5.331 It is submitted that a better way to increase the knowledge of the
judiciary in technical or scientific matters is to encourage members of the
judiciary to attend continuing professional development courses in such areas,
rather than the use of specialist advisors in individual cases who remain
unaccountable to either party or to the court.
5.332 As mentioned in Chapter 1, in the patent infringement case Kirin-
Amgen Inc and ors v. Hoechst Marion Roussel Ltd and Ors168 the House of
Lords were, with the consent of the parties, given a series of seminars in
camera prior to the case by a Professor of Biochemistry at Oxford University to
explain the relevant aspects of recombinant DNA technology.
5.333 This it, is submitted, is a preferable approach to the use of assessors,
as the information given in a series of seminars is likely to be generalised
information on the subject and not specifically applied to the facts of the case at
hand so will thus avoid the taint of bias of the person providing the expert
information.
5.334 Furthermore, members of the judiciary are likely to gain more from
attending such seminars as the knowledge gained will stand to them in future
cases, rather than the arbitrary knowledge gained by an assessor from a
specific set of facts of an individual case.
5.335 The Commission does not recommend that the use of court
assessors should be encouraged in a wide variety of cases.
5.336 The Commission does recommend that members of the judiciary
should be encouraged to attend formal training in complex subjects that
commonly arise in cases before them, such as forensic science, accounting and
engineering.

G Conclusion
5.337 This chapter has discussed a range of procedural reforms that could
have significant beneficial effects on the current expert testimony structure.
5.338 Although some of these suggested reforms are quite radical and far
reaching, others would involve little effort to implement but their effects could be

168
[2004] UKHL 46

305
significant. The Commission therefore recommends that procedural reforms
similar to those outlined above be introduced where possible.
5.339 The following chapter will discuss a range of reforms which aim at
improving the quality of expert testimony through education and regulation of
those who give such evidence.

306
6
CHAPTER 6 SANCTIONS, ACCOUNTABILITY AND
GOVERNANCE OF EXPERT WITNESSES

A Introduction
6.01 As demonstrated in the previous chapters, there are many cases
where the expert‘s failure to carry out their duties, or the expert‘s negligence in
the giving of expert evidence, have had onerous implications for one of the
parties. As a result, it is clearly necessary to consider ways to prevent
undesirable behaviour on the part of experts and to decide on the
consequences where an expert has been found to have been acting negligently
or inappropriately.
6.02 Reducing the prevalence of bias, and promoting high standards
amongst expert witnesses, is clearly best achieved by a two pronged approach;
clear instruction for experts on the standards expected of them in their capacity
as expert witnesses, coupled with the imposition of sanctions on experts for
negligence or breach of duty.
6.03 However, it must be borne in mind that the introduction of a range of
sanctions could also have negative consequences, for example, the creation of
additional delays or expenses, which could go against the interest of doing
justice between the parties. Any suggested reforms must therefore not impose
excessive burdens on parties to litigation which may negate the benefits of their
introduction.
6.04 Such reforms will not however address all problems that have been
identified with the system of expert testimony. Indeed the warning of Hallett J
must be borne in mind;
―However good the training, however good the system of
accreditation, however vigilant the professional associations,
miscarriages of justice have undoubtedly occurred and will continue
to occur unless expert evidence is put into its proper context; namely,

307
 it is an opinion based hopefully on fact and science but nevertheless
an opinion.‖1
6.05 Part B of this chapter discusses the merits of introducing a system of
formalised training and accreditation of experts and consider what would be the
most appropriate forum for introducing such a system. Part C goes on to
consider whether or not an expert witness regulatory body or disciplinary body
is needed and if so what form should this take. Part D considers the extent of
the existence of an immunity from suit for expert witnesses and questions
whether expert witnesses should be entitled to avail of such an immunity. Part
E looks at the range of alternative existing remedies that can be used where an
expert has acted negligently or wrongfully.

B Training & Accreditation of Experts

6.06 One of the principal concerns caused by the absence of set
requirements or standards in terms of qualifications or experience to be
considered an ‗expert‘ for the purposes of giving expert testimony is that the
current process for determining expertise; questioning during examination-in-
chief and cross-examination; may not be sufficient to prevent persons
purporting to be an expert from giving expert testimony on a subject matter on
which they are not suitable to testify.
6.07 Although it has been acknowledged earlier that the formal
qualifications of the expert will greatly assist the trial judge in determining
expertise, assessing someone‘s standard of specialisation in an area governed
by no formal accreditation, study or training and where the person has gained
their expertise through experience alone, may prove difficulty.
6.08 The potential difficulties become clear when it is considered that the
judge is ultimately given the task of evaluating the skill and ability of the witness
to give evidence on a subject, where the reason such evidence is being
admitted is because the subject is outside the range of knowledge of the judge.
(1) Fraudulent ‘Expertise’
6.09 The most serious potential consequence of the lack of formal
regulation of persons purporting to be an expert is demonstrated by the English
case in 2005 of one Barian Baluchi.2 Here, a taxi driver who fraudulently

1
Hallett J ―Expert Witnesses in the Courts of England and Wales‖ (2005) ALJ 288
at 295
2
See: ―Bogus Doctor Jailed for 10 Years‖ BBC News 26 January 2005 Available
at: http://news.bbc.co.uk/2/hi/uk_news/england/london/4209509.stm.

308
claimed to be a consultant psychiatrist was convicted on more than 30 charges
of misrepresenting himself as a medical expert.
6.10 A similar incident occurred in 2007 in England where one Gene
Morrison was found guilty of perjury and obtaining money by false pretences
where he fabricated a fake degree certificate from a fictitious university and
posed as a forensic psychologist without proper qualifications to appear in court
giving expert advice in payment from solicitors.3
6.11 Although such instances are undoubtedly rare, these cases do
expose the possibility that if the giving of expert witness testimony is viewed as
an increasingly lucrative career, it could prove enticing to individuals to claim
they are an expert in a particular subject area in order to be hired by a party to
litigation where in reality they have no such expertise.
6.12 Where an individual testifies as an expert witness in a trial and is
later exposed as a fraud, this will necessarily have serious implications for the
parties to the action. In the wake of the conviction of Morrison, the police were
required to conduct a thorough review of the 700 or more cases in which he had
given evidence. The potential for retrials, leading to additional delay and
expense, not to mention miscarriages of justice, is considerable.
6.13 There is a certain merit therefore to the suggestion that some form of
professional regulation of expert witnesses would be beneficial in guaranteeing
a high level of expertise and in screening potential charlatans set on abuse of
the expert witness system for profit.
(2) Existing Examples of Training & Accreditation
6.14 Many commentators have spoken about the merits of introducing a
system whereby any person wishing to give expert evidence would be required
to undergo mandatory training with a dedicated training body for expert
witnesses.
6.15 Any person who undergoes such training would be formally
accredited with having passed the necessary level of training and this training

3
See; ―Fraudulent Forensic Expert Jailed‖ BBC News 22 February 2007 Available
at: http://news.bbc.co.uk/2/hi/uk_news/england/manchester/6386069.stm;
―‗Bogus‘ Psychologist Admits Lying to Police‖ Manchester Evening News 7
February 2007 Available at;
http://www.manchestereveningnews.co.uk/news/s/235/235509_bogus_psychologi
st_admits_lying_to_police.html; Wilson ―The Trouble with Experts‖ The Guardian
25 February 2007 Available at:
http://commentisfree.guardian.co.uk/david_wilson/2007/02/bea_campbell_in_thes
e.html.

309
and accreditation would be a necessary requirement in order to be permitted to
give expert evidence in court. This would, in theory, reduce delays in the trial
process as the expert would not be required to prove their expertise in court; the
formal accreditation would be sufficient proof.
6.16 Such a system could also permit special considerations to apply in
certain instances, where the expert is seeking to give evidence on a one-off
basis. For example, experts could be permitted to act in a set number of cases
before evidence of formal training and accreditation becomes necessary.
(a) Ireland
6.17 In this jurisdiction there is no mandatory requirement for persons
wishing to act as expert witnesses to undergo any formalised training course.
However, there are a number of ways in which expert witnesses can be
educated about the requirements of their role in Ireland.
6.18 For example, a range of training courses are commercially available
in courses such as Courtroom Skills, Advanced Cross Examination Skills and
Excellence in Report Writing to professionals who hold themselves out as
experts in their profession.4 In the civil context, it would appear that medical
experts make up the bulk of those who give expert evidence in court, notably
physiotherapists, occupational therapists, psychologists. In addition, in recent
years accountants and computer analysts have been required as forensic
witnesses. In the criminal context, forensic scientists, officials from the State
laboratories and public analysts are common expert witnesses who require
training.
6.19 Furthermore, various professional bodies governing different industry
sectors often provide their own training courses for professionals within the
particular discipline who may be called upon to give expert evidence in a legal
forum. Such courses educate professionals in courtroom skills and excellence
in report writing, and help to educate the professionals in how best to convey
their expert knowledge in easily understood terms.
6.20 Finally, many courses provided by Universities and Institutes of
Technology in subject areas which are likely to be the subject matter of expert
testimony are beginning to include a module on the role of expert witnesses as
part of the course. For example, the B.Sc in Forensic Science and Investigation
provided by the Institute of Technology, Sligo, places a strong emphasis on
scientific communication and the role of the expert witness. 5

4
See: www.witnesstraining.ie (La Touche Bond).
5
See www.itsligo.ie.

310
6.21 These courses are a valuable source for experts as they are normally
provided by solicitors or barristers or other persons well acquainted with the
legal system and the structure of the expert testimony system. However no
formal qualification is earned by attendance at these courses and completion of
a training course does not at present lead to any professional certification or
accreditation that denotes that a certain standard of understanding has been
gained by the expert witness.
6.22 The closest structures akin to a professionally accredited body for
expert witnesses currently in place are the publishers who compile a directory of
experts such as the Expert Witness Directory of Ireland. 6 All of the expert
witnesses listed in this directory have provided two professional references from
practising solicitors or barristers who have instructed them within the preceding
3 years. The reference form asks the referee to rate the expert from very good
to very poor on aspects of an expert report such as accuracy, understanding
and analysis of the expert's subject area, presentation and adherence to time
scale.
6.23 Any expert witness who provides satisfactory references under the
process outlined above is able to use the ‗Expert Witness Directory of Ireland
Irish Checked‘ logo on their stationery, which will be valid for one year from the
date of publication. Use of the logo refers to individuals who have passed the
checking procedure and those who fail to meet the requirements are not entitled
to use the logo.
6.24 Experts who fail to meet any of the requirements set out in the Code
of Practice of the Expert Witness Directory will not be issued with the updated
logo until they satisfy the publishers that they have complied with these
requirements. Where any of the ratings from solicitors or barristers fall below
‗good‘, the references are carefully scrutinised. Other than in very exceptional
cases, low ratings lead to the expert's exclusion from the listing of checked
experts.
(b) England
6.25 There is considerably more training and accreditation available for
expert witnesses in the United Kingdom than currently available here. There are
a number of major accreditation bodies, however, as these all operate privately
and without cooperation or harmonisation of the training provided, setting
common standards for expert witness training remains unaccomplished. 7

6
See: The Expert Witness Directory of Ireland (Thomson Roundhall Reuters,
published annually). Another directory to source expert witnesses is available on
http://www.expertwitness.ie.
7
Bawdon ―A Crowded Thoroughfare‖ (1996) New Law Journal 1742

311
6.26 Many English law schools,8 as well as a large number of private
professional bodies, for example the Expert Witness Institute, 9 The Society of
Expert Witnesses,10 The UK Register of Expert Witnesses,11 and the Academy
of Experts12 cater for the needs of experts by providing such resources as help-
lines, mentoring schemes and training courses about the basic relevant laws,
the role and duty of an expert witness and courtroom skills. Most of this training
is provided by lawyers, who are proficient in instructing an expert about such
issues as dealing with disclosure and privilege rules, and witness familiarisation
with report writing and cross examination. 13
6.27 Membership of these expert witness bodies requires the individual to
prove their expertise, normally by producing an up-to-date curriculum vitae
which shows relevant professional qualifications along with satisfactory
references from a set number of solicitors or barristers. Listing on the UK
Register of Expert Witnesses has identical vetting procedures to the Irish
register.14
6.28 Stricter membership criteria is imposed by the recently established,
non-profit, ‗Council for Registration of Forensic Practitioners‘ (CRFP) set up by
the Home Office which assesses and accredits the competence of individuals in
most forensic science disciplines to give expert evidence in court. The
registration process is extremely thorough and involves an assessment of
recent case work by assessors experienced in the field of forensic science.

8
For example Cardiff University in conjunction with Bond Solon Witness Training
provides an ‗expert witness certificate‘ which requires experts to be independently
assessed by Cardiff University. It is interesting to note that in the first year of this
course, 20% of experts failed, a worrying statistic as many of them had been
giving expert testimony for many years. (Solon ―Experts: Amateurs or
Accredited?‖ (2004) New Law Journal 7117)
9
See: ―The Expert Witness Institute‖ Available at: http://www.ewi.org.uk/.
10
See ―The Society of Expert Witnesses‖ Available at:
http://www.sew.org.uk/noidxbar/wel_fs.htm.
11
See: The UK Register of Expert Witnesses‖ Available at:
http://www.jspubs.com/index.cfm.
12
See ―The Academy of Experts‖ Available at: http://www.academy-experts.org/.
13
Cooper ―More to Learn‖ (2007) New Law Journal 459
14
See: ―The UK Register of Expert Witnesses‖ Available at: http://www.jspubs.com/.

312
Furthermore, registered members are subject to periodic reassessment to
ensure fitness to practice.15
6.29 Support for the introduction of standardised training and improvement
of the quality of expert witnesses is burgeoning in England and Wales among
both practitioners and academic commentators.16 In his report on improving the
civil justice system Lord Woolf recommended that;
―Training courses and published material should provide expert
witnesses with a basic understanding of the legal system and their
role within it, focusing on the expert's duty to the court, and enable
them to present written and oral evidence effectively.‖ 17
6.30 However, Lord Woolf recommended that such training should not be
compulsory, and advised against the introduction of an exclusive system of
accreditation, as he believed this might exclude potentially competent experts
who do not undergo the training and accreditation process, thus narrowing the
pool of available experts.
6.31 Similarly in the criminal context, Auld LJ recommended in his Review
of the Criminal Justice System that one standard professional body should be
created in England and Wales for the purposes of setting standards for and
monitoring the conduct of forensic scientists, as well as maintaining and
monitoring the regulation of a register of accreditation. In order to carry out this
recommendation, he advised that all of the existing expert witness professional
organisations should be amalgamated into the existing Council for the
Registration of Forensic Practitioners. 18
6.32 The English Legal Services Commission also considered the issue of
training and accreditation in their research paper on the use of experts in
publicly funded cases. In this paper they did not recommend the creation of a
dedicated expert witness accreditation body;
―…we do not regard the compulsory registration of all expert
witnesses as practicable. Our proposals are intended to facilitate and

15
See ―Council for the Registration of Forensic Practitioners‖ Available at;
http://www.crfp.org.uk/.
16
Cooper ―More to Learn‖ (2007) New Law Journal 459; McConnell ―Strange
Bedfellows in the Witness Box‖ (1996) New Law Journal 1746
17
Woolf, MR Lord (1996) Access to Justice, Final Report, HMSO at ch 13 para 60
18
Auld J ―A Review of the Criminal Courts of England and Wales by The Right
Honourable Lord Justice Auld‖ (September 2001) at para 131

313
 encourage the use of accredited experts, not to confine solicitors to
instructing only accredited experts.‖ 19
6.33 However, the Legal Services Commission did encourage the
development by professional bodies of training and competency assessments
within the individual disciplines, along the lines of those provided by the Council
for the Registration of Forensic Practitioners for those engaged in forensic
science. They expressed a belief that accreditation, whilst not capable of
completely removing the risk of deficient expert evidence, that this would
―reduce the likelihood, and this will benefit the food administration of justice.‖ 20
6.34 There have also been a number of English cases that have
considered witness training courses. In these cases it is recognised that some
training has the potential to amount to coaching the experts on how best to
orchestrate the evidence in favour of their instructing party, in the words of the
trial judge in R v Salisbury,21 ―capable of converting a lying but incompetent
witness into a lying but impressive witness.‖
6.35 It has therefore been repeatedly emphasised in the English courts
that professional witness familiarisation training should only be for the purpose
of instructing experts on their role and duty. For example, in R v Momodou and
Limani22 Judge LJ explained that there is a distinction to be made between
witness training or coaching and witness familiarisation.
6.36 He acknowledged that training or coaching of a number of people
together who are witness to the same event carries the inherent risk that the
accuracy of the witness will be adversely affected as whether ―deliberately or
inadvertently, the evidence may no longer be their own.‖ 23 However, he found
that the possibility of adverse effects caused by coaching of witnesses should

19
Legal Services Commission ―The Use of Experts Consultation Paper: Quality,
Price and Procedures in Publicly Funded Cases‖ (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_con
sultation_paper.pdf, at 6.14
20
Legal Services Commission ―The Use of Experts Consultation Paper: Quality,
Price and Procedures in Publicly Funded Cases‖ (2004) Available at:
http://www.legalservices.gov.uk/docs/criminal_consultations/use_of_experts_con
sultation_paper.pdf, at 6.14
21
[2005] EWCA Crim 3107 (30 November 2005)
22
[2005] EWCA Crim 177
23
[2005] EWCA Crim 177 at [48]

314
not act to preclude pre-trial arrangements to familiarise the witness with the lay
out and structure of the court.24
6.37 This reasoning was used as the basis for Phillip LJ‘s dismissal of the
appeal in R v Salisbury.25 Here the appellant argued that the case should be
appealed on the basis of the crown‘s failure to disclose that its expert witnesses
had undergone a training course prior to the trial.
6.38 Phillip rejected the contention that such training gave them an unfair
advantage over other witnesses or that it added a specious quality to their
evidence. He approved the comments of the trial judge about the effect of the
training;
―What they would have received was knowledge of the process
involved. It was lack of knowledge and understanding which created
demand for support in the first place. Acquisition of knowledge and
understanding has probably prepared them better for the experience
of giving evidence. They will be better able to give a sequential and
coherent account. None of this gives them an unfair advantage over
any other witness.‖26
6.39 These decisions infer that the courts appear to be in favour of
witness training where this training is limited to familiarising the witnesses with
the courtroom set up and structure. They are, however, wary of any training that
amounts to coaching of a witness, or that would result in the witness altering
their evidence.
(c) Australia
6.40 In Australia, similar to the United Kingdom, there are a number of
dedicated private professional bodies that provide training for expert witness.
Furthermore, many of the professional bodies governing various disciplines also
offer training sessions to professionals for those who wish to act as expert
witnesses.27

24
[2005] EWCA Crim 177 at [49]
25
[2005] EWCA 3107
26
[2005] EWCA 3107 at [60]
27
See for example The Australian College of Legal Medicine, the Medical-Legal
Special Interest Group of the Royal Australian College of Surgeons, the
Australian and New Zealand Forensic Science Society and The National Institute
of Forensic Science. (As outlined in; Wood J ―Expert Witnesses – The New Era‖
th
Paper delivered at the 8 Greek Australian International Legal & Medical
Conference (Corfu, June 2001)

315
6.41 Also similar to the United Kingdom and Ireland, some expert witness
training courses are offered in academic institutions.28 Furthermore, there are a
number of service providers dedicated to provision of expert witness services
along the lines of the Irish Expert Witness Directory which permit experts to
register with the body subject to appropriate proof of qualifications and
adequate peer review.29
6.42 As yet however, there is no formal requirement in any Australian
jurisdiction for expert witnesses to undertake standardised training leading to
formal credentials. However, there are similar indications to those expressed in
England and Ireland that support for this idea is growing.
6.43 For example, Freckleton, Reddy & Selby‘s comprehensive study of
Australian judicial perceptions of expert evidence in 1999 found overwhelming
support for ―training for expert witnesses to communicate their views better and
to fulfil their role as forensic witnesses more professionally.‖ 30
6.44 More recently, the Honourable Justice Peter McClellan, who was
responsible for considerable reforms relating to the giving of expert testimony in
the Land and Environment Court of New South Wales, also expressed keen
support for the imposition of professional standards through accreditation of
experts. However he hinted that the responsibility for this should lie with
professional bodies governing the various disciplines rather than the court. He
stated;
―…I have not infrequently been asked whether courts should be
responsible for accrediting experts who may give evidence before
them. The commonly expressed expectation is that courts would
thereby be able to exclude witnesses that are neither appropriately
qualified, or had failed to give evidence which reflected relevant
levels of professional competence or objectivity. There are many
difficulties with such a proposal. However, given the frequency with
which experts give evidence in courts and the reliance placed on
their learning and professional integrity, an increasing interest by

28
See for example; http://www.ewia.org.au/;
http://www.mit.com.au/professional_development/course/expert_witness_prepara
tion_1067.htm ; http://www.expertopinion.com.au/info/training.html.
29
See for example, http://www.expertwitnesses.com.au/;
http://www.expertopinion.com.au/.
30
Freckelton, Reddy & Selby Australian Judicial Perspectives on Expert Evidence;
an Empirical Study (Australian Institute of Judicial Administration, 1999) Question
4.1

316
 professional bodies in maintaining appropriate standards from those
who give evidence should be encouraged."31
(3) Difficulties caused by Lack of Mandatory Training
6.45 As already mentioned, in this jurisdiction there is no mandatory
requirement for a person seeking to act as an expert witness to undertake any
form of education about their role and applicable duties. As a result, even some
experienced witnesses do not have a full understanding of what the role of the
expert witness entails.
6.46 Recent research carried out in England on expert witnesses in
practice concluded that the training of expert witnesses to give evidence is still
patchy and unregulated, creating a continuing risk of miscarriages of justice.32
The research found that approximately one in ten experts had no training at all
and did not intend to undertake any. Penny Cooper, a barrister and a governor
of the Expert Witnesses Institute, who conducted the research explained that
high profile miscarriages of justice such as the Sally Clark case are inextricably
linked with lack of training. She argues that court rules should be amended to
impose a duty on judges and lawyers to consider the training an expert has had
before allowing them to give evidence.33
(4) Should Mandatory Training & Accreditation be introduced?
6.47 It can be argued that the above difficulties could be alleviated by
requiring experts to undergo some sort of formalised training for their role. Such
training should educate individuals about the role and duties applicable to
expert witnesses. It should also enable them to improve their oratory skills, to
ensure that they recognise the boundaries of their area of expertise, and to
successfully convey technical information to the court, in order to cope with
cross examination and examination in chief. The training should also teach
experts how to create structured, informative expert reports.

31
McClellan ―Contemporary Challenges for the Justice System – Expert Evidence‖
Paper given at the Australian Lawyer’s Alliance Medical Law Conference 2007
(20 July 2007)
32
See ―Most Lawyers Fail to Check on their Expert Witnesses‖ Times on Line 12
November 2007 Available at:
http://business.timesonline.co.uk/tol/business/law/article2852661.
33
See ―Most Lawyers Fail to Check on their Expert Witnesses‖ Times on Line 12
November 2007 Available at:
http://business.timesonline.co.uk/tol/business/law/article2852661.ece.

317
6.48 Set up in 1985, the Irish National Accreditation Board (INAB)
provides accreditation for calibration and testing laboratories. 34 INAB is
responsible for carrying out quality checks on the Forensic Science Laboratory.
In the 2005 Report on the Establishment of the DNA Database, the Commission
recommended that INAB should give periodic reviews of the independent
statutory body that the Commission recommended be set up to monitor the
profiling and storing of the DNA database.
(a) Disadvantages
6.49 It must be acknowledged that the practical administration of
accreditation on a standardised basis may prove very difficult for one body
alone given the unlimited scope of the areas on which expert evidence may be
given. As a result, a separate accreditation board in each particular discipline
may be required in order to conduct sufficiently thorough monitoring of expert
witnesses.
6.50 For example, take the option of giving the INAB the responsibility for
the accreditation of all expert witnesses. The current function of INAB is to
monitor laboratories, which would imply it would be capable of reviewing
forensic and medical experts. However, it may not have the necessary
experience or knowledge to carry out effective quality assurance on experts in
other unrelated areas, such as non-science related disciplines.
6.51 There are also certain areas that may form the subject matter of
expert testimony which might not lend themselves easily to formal accreditation
processes, particularly where the area is not governed by any professional body
or is a new or emerging form of expertise.
6.52 Furthermore, mandatory accreditation also has its drawbacks,
principally the danger that it could lead to a monopoly of professional expert
witnesses who make repeated court appearances but who become out of touch
with the profession or subject matter on which they are giving expertise. 35
6.53 Another potential disadvantage of the introduction of such a scheme
is that requiring all experts wishing to give expert testimony in court proceedings
to undertake formal training would impose a significantly onerous resource,
administrative and temporal burden.
6.54 The argument has also been made that the credibility of a court-
required training and accreditation scheme would be undermined each time an

34
See: http://www.inab.ie
35
Walton ―Deployed Bias‖ (2006) 156 NLJ 1084

318
accredited expert was criticised in court or where the evidence of a non-
accredited expert was preferred.36
6.55 It can also be argued the introduction of mandatory training and
accreditation would not have prevented criminals from impersonating expert
witnesses, as in the cases of Barian Baluchi and Gene Morrisson as the forged
credentials used by these individuals would have probably fooled any expert
witness regulatory body just as easily as the court was convinced. Training may
therefore regulate expert witnesses who fall below a certain level of quality, but
will not prevent individuals from misrepresenting themselves as qualified
experts in a particular area.37
6.56 The argument was made in Chapter 5 that the system already in
place, whereby the expert is subject to scrutiny from both the judge and the
opposition party, is sufficiently adequate to ensure the quality and authenticity of
any expert witness giving evidence in court. In light of this argument, and in
view of the disadvantages listed above, the desirability of introducing the reform
of mandatory training and accreditation is unclear.
(b) Advantages
6.57 On the other hand however, there may be tangible benefits accruing
from training of expert witnesses. This is particularly so if the training goes
beyond witness familiarisation with the courtroom set up, but also encompasses
informing the experts about the applicable laws governing the admissibility of
expert evidence in court, and also clearly elucidates the role, duties and
function of experts.
6.58 Such training, if provided at the time the expert is first enlisted, would
help to ensure that any person purporting to give expert evidence clearly
understands the responsibilities attached to the task, and ensure high quality,
reliability and impartiality of the expert evidence from the outset; from the initial
examination of the issues, to the preparation of the expert report and to the
eventual expert testimony in court.

36
The Institute of Chartered Accountants in Australia ―Chartered Accountants
Showcase Leadership in Expert Witness Arena‖ (Press Release, 29 September
2005) Available at:
http://www.charteredaccountants.com.au/news_releases_2005/september_2005/
A117398811.
37
For more on this see Pamplin ―Bearing False Witness: The Regulatory Effect‖
(2005) 155 New Law Journal 1756

319
(5) Training for Judiciary and Other Members of the Legal
Profession
6.59 The point has also been made on numerous occasions that judicial
training in the field of science and other technical areas may have two-fold
benefits; first, it would reduce the necessity for expert evidence in some cases,
and second, it would better equip judges to determine the reliability of expert
evidence before them and to detect when an expert is giving partisan or
fraudulent expertise.
(6) Training & Accreditation: Conclusion
6.60 In light of the above, the Commission is inclined towards retaining the
current arrangements, in which relevant training for expert witnesses is given -
and received - on a voluntary basis, rather than on the basis of a mandatory
system. The Commission is concerned that a mandatory system may fail to
distinguish between quite appropriate familiarisation of witnesses with courts
(which appears to the Commission to be the basis of current voluntary
arrangements in Ireland of which it is aware) and inappropriate coaching of
experts.
6.61 The Commission provisionally recommends that current voluntary
arrangements for training of expert witnesses, in which appropriate
familiarisation training for experts is given, should continue, and that a
mandatory system should not be introduced.

C Professional Expert Witness Regulatory & Disciplinary Bodies

6.62 A number of significant disadvantages have been identified as
attaching to the introduction of mandatory training and accreditation of experts.
An alternative and, it is submitted, less onerous, reform would be the creation of
regulatory and disciplinary bodies for expert witnesses which would provide a
dual purpose of both imposing binding obligations on expert witnesses and also
monitor their enforcement.
(1) Dedicated Regulatory Body for Expert Witnesses
6.63 One option for reform that has received considerable support is the
creation of a dedicated regulatory body for expert witnesses. In accordance with
the principles set out in the government 2004 White Paper Regulating Better,38
such a body need not necessarily be created on a statutory basis.
6.64 All persons engaged in expert witness work would be given the
option of registration with this body, subject to proof of expertise based on

38
Regulating Better: A Government White Paper Setting Out Six Principles of Better
Regulation (Department of An Taoiseach, The Stationary Office, 2004)

320
relevant qualifications, experience and/or references from solicitors or
barristers. A register of members would thus be available that would act as a
directory of registered available experts for the use of solicitors, barristers and
parties to litigation.
6.65 The body would be responsible for continuing review of experts and
the expert witness system to decide on what training is needed and updating
and informing experts about continuing developments in the case law. Such a
regulatory body would also be the appropriate organisation in which to provide
training and accreditation processes as discussed in the last section.
6.66 The expert witness regulatory body should be responsible for the
creation of a Code of Ethics, or Guidance Code for expert witnesses and
registration would require the expert to agree to be bound by this Code. The
body would be responsible for monitoring experts to ensure compliance with the
Code and where necessary, for example, where a failure to conform to the
Code has been identified, to refer the expert witness to a disciplinary body to
allow them to impose professional disciplinary measures or sanctions.
6.67 One issue for consideration is whether registration with such a body
would be a mandatory requirement to be permitted to give expert testimony. If
mandatory training is considered necessary, this would necessarily make
affiliation with this body compulsory. As already noted, the Commission is
currently of the view that such training should not be mandatory.
6.68 Moreover, it might also be considered that compulsory registration
may disproportionately limit the pool of available experts and impose an undue
burden on individuals who are enlisted to give expert testimony on a one-off
basis. It would therefore seem necessary to ensure that registration is not
compulsory and to ensure that the court retains an overriding jurisdiction to hear
evidence from non members, albeit that evidence of being a registered member
would help to establish integrity.
(a) Support for this Reform
6.69 Registration with this body would provide the expert with added
evidence of their expertise which would assist in proving expertise before the
court. This body could also provide a valuable source of information and
support for experts about their role and function, setting out guidance notes and
protocols on the various aspects of the work of an expert.
6.70 A comprehensive AGIS report which surveyed expert practice in a
number of EU member states revealed that one of the main common
denominators for judicial experts surveyed was the felt need for a regulatory
body to provide initial and continuing education on their role and duty and the
legal profession, and also to act as an interlocutor with judicial institutions. The
report noted that in many jurisdictions the regulatory bodies are consulted on

321
issues such potential legislative and procedural amendments to the system of
giving expert evidence. 39
6.71 In the section on the AGIS report that outlined the position in Ireland,
it was explained that a meeting had taken place for the purposes of providing
information for the report which was attended by members of the legal
profession, representatives from a commercial training company that provides
training for expert witnesses, representatives from professional bodies which
often form the subject matter of expert evidence, and other interested parties
that are knowledgeable about the Irish system of expert testimony. 40
6.72 The AGIS report revealed that representatives at the Irish meeting
recommended the creation of one central body to establish a register of experts
with a system to ensure the experts meet certain standards. It was further
suggested that if some professional body for expert witnesses was introduced
then it should include members the Bar Council and the Law Society, as well as
representatives from professional bodies governing different disciplines which
form the subject matter of expert evidence, so that the key areas, both legal and
professional, are covered.41
(b) Disadvantages of this Reform
6.73 The main differentiating factor between any body set up to regulate
expert witnesses and other regulatory bodies operating in Ireland at present
would be that other bodies govern conduct or professions carried out on a full
time basis whereas the giving of expert testimony encompasses only an
element of the work of a professional. It has been stressed that, in the interests
of ensuring the expert remains au fait with the subject matter of their expertise;
this should take up the bulk of their work, and not in-court testimony.

39
Conseil Nationale des Compagnies d‘Experts de Justice ―Report: Access to
Judicial Expertise in Criminal Matters Implying More Than One Member State,
Especially in Serious Cases and Organised Crime‖ (AGIS, June 2007) Available
at: http://www.euroexpert.de/sixcms/media.php/61/Report-En-Anglais.pdf, at 75
40
Conseil Nationale des Compagnies d‘Experts de Justice ―Report: Access to
Judicial Expertise in Criminal Matters Implying More Than One Member State,
Especially in Serious Cases and Organised Crime‖ (AGIS, June 2007) Available
at: http://www.euroexpert.de/sixcms/media.php/61/Report-En-Anglais.pdf.
41
Conseil Nationale des Compagnies d‘Experts de Justice ―Report: Access to
Judicial Expertise in Criminal Matters Implying More Than One Member State,
Especially in Serious Cases and Organised Crime‖ (AGIS, June 2007) Available
at: http://www.euroexpert.de/sixcms/media.php/61/Report-En-Anglais.pdf

322
6.74 Requiring registration may therefore impose an onerous obligation on
those persons wishing to act as an expert witness, particularly those who are
only to give evidence on a one-off basis. Even though registration should be
optional in theory, in reality the situation would probably occur whereby extra
weight would be given in court to the evidence of registered experts so that all
expert witnesses would feel pressurised into registration, which may be a costly
burden where the expert only wishes to give evidence on a one-off basis.
6.75 If registration with such a body is optional, this leaves the possibility
open that alternative expert witness regulatory bodies may be set up in
competition, as has occurred in England, where a plethora of such bodies have
been created in recent years for example the Expert Witness Institute, the
Academy of Experts, the Society of Expert Witnesses
6.76 Although this in itself is not a disadvantage as competition between
such bodies may lead to higher standards of expert evidence all round, some
commentators have suggested that in England the situation has emerged where
none of the major professional bodies for experts work in harmony, which has
led to major problems. Bawdon has suggested:
―There appears to be no love lost between the three groups despite,
or perhaps because, of the fact that they all claim to cover much the
same ground. Each insists it is independent, democratic, non-profit
making, and aimed at raising standards and acting as a voice for
experts. Whatever impact their existence may ultimately have on
standards within the litigation process, so far there is not much sign
of improved behaviour among experts outside the legal sphere.
Quite the opposite, in fact.‖42
(c) Alternatives
6.77 The introduction of a distinct body for the regulation and registration
of expert witnesses can be seen as having considerable merit. However, the
possibility that it would lead to an anti-competitive monopoly of control over all
expert witnesses in one organisation, and impose an undue burden on
individuals engaged in the giving of expert testimony on a one-off basis is also
strong. A number of different or alternative suggestions for reform must
therefore also be highlighted;
(i) Introduce a Tiered System of Registration and Membership of
the Regulatory Body
6.78 One way of preventing registration from being an excessive financial
burden would be to introduce a system whereby there would be various

42
Bawdon ―A Crowded Thoroughfare‖ (1996) New Law Journal 1742

323
categories of membership of the society based on the amount a times an expert
is likely to be enlisted to give expert testimony, something akin to the
membership structure of the Society of Actuaries in Ireland, 43 or the Society of
Expert Witnesses in England.44
6.79 Those who only give expert evidence on a one-off basis could apply
for the lowest and least expensive form of membership, for example an
‗association‘ which would merely require an acknowledgment of the Code of
Ethics or Guidance Code governing expert witnesses and an agreement to
abide by this, as well as undergoing some basic training about the role and duty
of an expert witness.
(ii) No Regulatory Body and Vesting Regulatory Role of Experts
with Professional Bodies governing Various Disciplines
6.80 An alternative recommendation to the creation of a dedicated
regulatory body for expert witnesses would be for the Commission to
recommend and encourage the professional bodies governing various
professions that are often the subject matter of expert testimony to increase
their powers of inspection to include a specific mandate for the supervision of
professionals within the discipline engaged in acting as expert witnesses.
6.81 Such bodies would be encouraged to set out a Code of Ethics for
their members to abide by when acting as an expert witness. Having the Code
of Guidance aimed at a particular discipline would enable it to be more specific
than a general code aimed at all expert witnesses. This would allow it to be
more detailed in its provisions, giving greater guidance about the parameters of
permitted expert evidence in the context of the particular discipline.
6.82 The accusation could however be levelled that it is unfair that some
experts would be compulsorily required to conform to a certain standard of
behaviour as a result of their membership – which may in itself be mandatory
for the particular profession – of a professional organisation. This could be seen
as imposing an additional burden on experts who are part of some professional
body than those not affiliated with any such body.
6.83 In the alternative, it could be considered that it is at the discretion of
each professional body to decide on necessary principles and standards of
behaviour within the discipline, and where this discipline is commonly the

43
See; The Society of Actuaries in Ireland – Categories of Membership Available at:
http://www.actuaries.ie/About_the_Society/Membership/Categories/Categories_Li
sting.htm.
44
See: ―The Society of Expert Witnesses – How To Join‖ Available at:
http://www.sew.org.uk/welcome/join_fs.htm.

324
subject matter of expert testimony, it cannot be considered too radical a
requirement to conform to a certain standard in the giving of expert testimony.
(iii) No Regulatory Body but Creation of a Separate Disciplinary
Body Responsible for all Expert Witnesses
6.84 It was stressed above that in the event that a regulatory body for
expert witnesses is introduced, registration or membership of this should be not
be made mandatory as this would have the undesirable effect of limiting the
pool of available experts. However, non-registration with an expert witness
regulatory body should not be a defence to taking action where an expert
witness has acted negligently or engaged in professional misconduct.
6.85 The benefits of having some form of control over the expert witness
process cannot be denied. Therefore, regardless of the introduction or not of a
regulatory body for expert witnesses, there should be a separate disciplinary
body responsible for the disciplining of expert witnesses. The functioning of this
will now be discussed.
(d) Dedicated Regulatory Body: Conclusion
6.86 Based on this discussion, and consistent with its provisional
recommendation that mandatory training should not be introduced, the
Commission provisionally recommends that a mandatory regulatory body for
expert witnesses should not be introduced.
6.87 The Commission provisionally recommends that a mandatory
regulatory body for expert witnesses should not be introduced.
(2) Dedicated Disciplinary Body for Expert Witnesses
6.88 As mentioned above, one of the consequences of registering with a
regulatory body for experts would be that the expert automatically agrees to be
bound by the Code of Ethics of the regulatory body. This body would be
responsible for monitoring experts to ensure compliance with the Code and,
where necessary, for deciding that disciplinary measures should be taken
against the expert.
6.89 Alternatively, it has been suggested that existing professional bodies
governing particular areas of expertise should be given increased powers of
regulation and should be encouraged to create a binding Code of Conduct for
their members to abide by in the giving of expert testimony, and that these
bodies would be entitled to take disciplinary measures in the event of a breach
of this code by their members.
6.90 The decision to take disciplinary action would occur where the body
in question has received complaints from members of the public, the legal
profession, other experts or the court, due to a perceived failure by a particular
expert to comply with the code. The body should undertake a complete

325
investigation of such claims and there should be a fully functioning appeals
procedure to enable an expert to address criticisms.
6.91 However, it is submitted that a strong perception of bias or unfair
procedures could be created where the body that trains and regulates expert
witnesses is also responsible for the discipline of its members. The introduction
of a separate, independent disciplinary body to carry out the task of imposing
sanctions on expert witnesses who are considered to have breached their role
and duties has therefore considerable merit.
6.92 Such a disciplinary body should not be required to rely on references
from the regulatory body for expert witnesses or the regulatory committees of
the various professional bodies governing different professions, but could act on
its own accord wherever they form the opinion that an expert witness has
engaged in misconduct or negligent behaviour.
(a) Example: The Solicitors Disciplinary Tribunal
6.93 This is an independent statutory body, composed of both solicitors
and lay members who are appointed by the President of the High Court to
investigate complaints of misconduct or negligence on the part of solicitors. It is
independent from the professional body governing the profession of solicitor,
the Law Society of Ireland, which also has its own disciplinary structure in
place.45
6.94 Where the Tribunal decides that a complaint discloses a prima facie
case of misconduct by a solicitor, the Tribunal will carry out an inquiry,
conducted in public and with oral evidence. 46
6.95 Where an application has been made to the Tribunal concerning a
solicitor, and a prima facie case made out in a subsequent inquiry, this may
result in the Tribunal or the President of the High Court imposing such sanctions
as requiring the solicitor to pay a fine, being suspended from practice for a set
period of time, or having his or her name struck off the Role of Solicitors.
6.96 The fact that it is independent from the regulatory body for solicitors
means that the Tribunal provides a feasible model on which to base any
regulatory body for expert witnesses as it is submitted that any such body

45
See: Law Society of Ireland Complaints & Client Relations Committee Available
at:
http://www.lawsociety.ie/displayCDAContent.aspx?node=192&groupID=192&cod
e=society_committees.
46
The procedures of the Tribunal are regulated by the Solicitors Acts 1954 to 2002
and by the Solicitors Disciplinary Tribunal Rules 2003. See The Solicitors
Disciplinary Tribunal Available at; http://www.distrib.ie/default.htm.

326
should necessarily be, and be seen to be, independent from any professional
body that provides training and guidance for expert witnesses
(b) Alternative: Encouraging Professional Bodies to Introduce their
Own Disciplinary and Investigative Procedures
6.97 As above, if it is considered that an investigative and disciplinary
body dedicated to monitoring expert witnesses should not be introduced as it
would impose an excessive financial and administrative burden, encouraging
professional bodies to increase their investigative and disciplinarian powers, or
to create their own disciplinary committee within the organisation, is a viable
alternative.
6.98 This may in fact prove a preferable option for reform as it can be
argued that the various professional bodies will have the necessary expertise
and knowledge in the particular area to enable them to determine whether or
not the evidence given by the expert has fallen below the necessary standard,
or whether or not the expert has engaged in misconduct.
6.99 On the other hand, the criticism could be levelled that vesting
disciplinary power with professional bodies governing various subject areas
might prevent novel theories emerging from that area of expertise as the
committee might require their member experts to ‗toe the party line‘ and must
not be willing to allow them explore new theories which had not been fully
accepted by the professional body.
(c) England
6.100 In England, as already mentioned, there are a number of expert
witness regulatory bodies which provide training for expert witnesses, and allow
experts to register with the bodies. Although these bodies impose strict vetting
procedures for their members, and some impose codes of practice on their
members backed up by disciplinary procedures, 47 here is no formal disciplinary
body dedicated to investigating and monitoring all expert witnesses.
6.101 However, a number of areas of expertise are governed by regulatory
bodies which also contain disciplinary committees to monitor their members, or
are governed by separate disciplinary boards which provide a disciplinary
scheme for professionals in the particular area of expertise. 48

47
See for example the Academy of Experts Available at: http://www.academy-
experts.org/default.htm.
48
See for example the ―General Medical Council‖ Available at: http://www.gmc-
uk.org/; ―Actuarial Profession – Disciplinary Board‖ Available at:
http://www.actuaries.org.uk/Display_Page.cgi?url=/professional_affairs/discipline/
board.html; the ―Taxation Disciplinary Board‖ Available at: http://www.tax-

327
6.102 Interestingly, there have been some English cases where the courts
have referred an expert who has been found to have breached his duty to such
professional bodies for discipline purposes.
6.103 In Pearce v Ove Arup Partnership Ltd and Others49 Jacob LJ held the
claimant‘s expert witness to be in breach of his duties by giving evidence that
was ―biased and irrational‖ and significantly lacking in objectivity. He rejected
the claimant‘s case and further held that the expert witness was heavily
responsible for the case coming to trial in the first place ―with its attendant cost,
expense and waste of time.‖
6.104 Jacob LJ went on to acknowledge that there is no rule providing for
specific sanctions in such cases, nor does a specific accrediting body exist to
whom an expert could be referred. However, he appeared to be of the opinion
that despite the lack of such a body or statutory sanctions for breach, experts
should nevertheless be made accountable in situations where their breach of
duty has led to considerable unnecessary expense and delay.
6.105 The appropriate body to take such measures, in Jacob LJ‘s view,
was the relevant professional body with which the expert witness is associated,
if such exists:
―I see no reason why a judge who has formed the opinion that an
expert had seriously broken his Part 35 duty should not, in an
appropriate case, refer the matter to the expert's professional body if
he or she has one. Whether there is a breach of the expert's
professional rules and if so what sanction is appropriate would be a
matter for the body concerned.‖ 50
6.106 Jacob LJ went on to hold that in his view the expert in this case
should be referred to his professional body, however, he accepted that before
this step was to be taken, the expert should have an opportunity of being heard.
He therefore allowed 21 days prior to referral to the professional body, in order
to allow representations to be made on behalf of the expert.

board.org.uk/; Royal Institute of Chartered Surveyors‖ ―Disciplinary Sentencing

Policy‖ Available at:
http://www.rics.org/AboutRICS/RICSProfessionalRegulationandConsumerProtecti
on/RICSdisciplinaryprocedures/sentencing_policy.htm; The ―Accountancy and
Investigation Disciplinary Board‖ Available at:
http://www.frc.org.uk/aadb/index.cfm.
49
[2001] EWHC Ch 455 (2 November 2001) at [60]
50
[2001] EWHC Ch 455 (2 November, 2001) at [61]

328
6.107 Similarly, in Hussein v William Hill51 Hallett J criticised the expert
psychiatrist advanced on behalf of the plaintiff for failing to disclose his close
relationship with the claimant, and for failing to disclose the fact that he was, at
the time of giving evidence, suspended from practice and being brought before
a Mental Health Review Tribunal. Hallett J refused to place any weight in the
expert‘s evidence and held that the judgment should be referred to the General
Medical Council to examine the conduct of the expert in question. 52
(d) Dedicated Disciplinary Body for Experts: Conclusion
6.108 Based on this discussion, and consistent with its provisional
recommendations that mandatory training should not be introduced and that a
mandatory regulatory body for expert witnesses should not be introduced, the
Commission provisionally recommends that the relevant professional bodies
should be encouraged to introduce their own regulatory and disciplinary
processes for professionals who wish to act as expert witnesses.
6.109 The Commission provisionally recommends that the relevant
professional bodies should be encouraged to introduce their own regulatory and
disciplinary processes for professionals who wish to act as expert witnesses.
(3) Immunity from Disciplinary Action from Professional Regulators
6.110 There have been a number of cases in this jurisdiction, and more
recently in England, which considered whether or not immunity exists for expert
witnesses from disciplinary, regulatory or fitness to practice proceedings
(commonly known as FTP proceedings), in relation to statements made or
evidence given by him in or for the purpose of legal proceedings.
(a) Ireland: MP v AP: John Connolly Applicant (Practice: In
Camera)53
6.111 This case involved a complaint made by one of the parties to the
Psychological Society of Ireland in respect of the applicant who was a potential
witness in family law case involving the parties. The applicant claimed that the
complaint could not be considered by the disciplinary body as section 34 of
Judicial Separation and Family Law Reform Act 1989 provides that family law
cases be held in camera.
6.112 Laffoy J held that section 34 was contravened by the making of
complaints to the Psychological Society of Ireland and that the complaint could
not be prosecuted without further infringement of the section as it concerned the

51
[2004] EWHC 208 (QB) (18 February 2004)
52
[2004] EWHC 208 (QB) (18 February 2004) at [34]
53
[1996] 1 IR 144

329
contents of a letter which commented upon the defendant's evidence on
affidavit in support of a motion in family law proceedings.
6.113 Laffoy J went on to recognise the existence of an immunity for
witnesses from civil proceedings in respect of evidence given in court and
statements made in preparation for giving evidence. She continued:
―While no authority has been cited which supports the proposition
that an expert witness is immune from disciplinary proceedings or
investigation by a voluntary professional organisation to which he is
affiliated in respect of evidence he has given while statements he has
made with a view to their contents being adduced in evidence, having
regard to the public policy considerations which underlie the immunity
from civil proceedings — that witnesses should give their evidence
fearlessly and that a multiplicity of actions in which the value or truth
of their evidence would be tried over again should be avoided — in
my view, such a witness or potential witness must be immune from
such disciplinary proceedings or investigation. However, I consider
that it is not necessary to make a declaration that the society cannot
conduct any inquiry in relation to evidence given by the applicant or
any statements made by the applicant in preparation for oral
testimony or evidence on affidavit in these proceedings because
such inquiry is precluded by s. 34 of the Act of 1989.‖54
6.114 In this case, Laffoy J seemed to support the recognition of immunity
for expert witnesses from disciplinary proceedings taken pursuant to evidence
given during the course of litigation. However, the latter part of this statement
implies that her comments were limited to considering this issue in the context
of family law proceedings, and not more generally.
6.115 A number of other Irish cases have considered the extent to which
witnesses, including expert witnesses, are immune from civil suit in the course
of giving evidence. These will be discussed later on. However, there has been
greater consideration given to the extension of witness immunity to disciplinary
proceedings recently in England, which may influence the Irish direction in
future cases.
(b) England: General Medical Council v Meadow 55
6.116 In General Medical Council v Meadow56 Professor Meadow, a
medical expert witness, had given expert evidence in an earlier murder case

54
[1996] 1 IR 144 at 155
55
[2006] EWHC 146 (Admin) (17 February 2006); [2006] EWCA Civ 1390 (26
October 2006)

330
that was later proved to be inaccurate. As a result of this, the Fitness to Practice
Panel (FPP) of the General Medical Council (GMC), the professional body
governing the conduct of medical professionals in the UK, concluded that
Professor Meadow was guilty of serious professional misconduct and ordered
that his name be struck off the GMC register. Professor Meadow appealed both
the finding and the sanction of erasure.
(i) High Court
6.117 In the High Court, Collins J acknowledged the established existence
of common law immunity from suit of witnesses, including expert witnesses, in
respect of statements made in the course of giving evidence. 57 He went on to
find that in some instances, in the interests of justice, this immunity should be
extended to cover FTP disciplinary proceedings, and as a result, he allowed the
appeal against the FTP‘s finding of serious professional misconduct. 58
6.118 However, he also referred to Pearce v Ove Arup Partnership Ltd &
Ors59 and Hussein v William Hill60 and held that there is nothing preventing a
professional body from examining an expert witness whose conduct has fallen
so far below what is expected of him as to merit disciplinary action, but that it is
the job of the judge to decide if this is the case.
6.119 He went on to outline the circumstances under which such a referral
could be made by a judge;
Such a referral would not be justified unless the witness's
shortcomings were sufficiently serious for the judge to believe that he
might need to be removed from practice or at least to be subjected to
conditions regulating his practice such as a prohibition on acting as
an expert witness. Normally, evidence given honestly and in good
faith would not merit a referral.61
6.120 Collins J also allowed the appeal against the finding of the GMC of
serious professional misconduct on the part of Professor Meadow. He pointed
out that the appellant had acted in good faith, and honestly believed in the

56
[2006] EWHC 146 (Admin) (17 February 2006); [2006] EWCA Civ 1390 (26
October 2006)
57
The extent of this immunity and whether or not it should be abolished will be
discussed further on.
58
[2006] EWHC 146 (Admin) (17 February 2006) at [21]-[25]
59
[2001] EWHC Ch 455 (2 November 2001)
60
[2004] EWHC 208 (QB) (18 February 2004)
61
[2006] EWHC 146 (Admin) (17 February 2006) at [23]

331
veracity of the statistics he cited in evidence. Collins J concluded that an
honestly held albeit mistaken evidence should not lead to a finding of serious
professional misconduct giving rise to disciplinary sanctions.
(ii) Court of Appeal
6.121 The General Medical Council appealed the findings of Collins J in the
High Court. Clarke MR gave extensive consideration to the question of whether
witness immunity should be extended to cover FTP proceedings. He
acknowledged that the courts have shown a marked reluctance to extend the
witness immunity beyond that absolutely necessary and also expressed a belief
that the threat of FTP proceedings is in the public interest as it acts as a
deterrent to the giving of partisan evidence. 62
6.122 Clarke MR also reasoned that even a partial extension, in the form of
the judicial filtering mechanism suggested by Collins J, should not be introduced
as it would cut across or limit the powers of such professional bodies to set and
maintain standards and that it should be Parliament that decides what charges
are to be made. As reasoned by Auld LJ:
―It goes to the very root of the core principle of immunity that it must
be certain in its extent and it must be absolute. And that must be
equally so where the boundary line is between – in the case of
medical practitioners – serious professional misconduct or no, or
between serious professional misconduct and serious professional
conduct so bad ("super serious professional misconduct") that a
judge in a particular case considers it necessary to refer the matter to
a disciplinary body. As the Master of the Rolls has put it, in paragraph
53 of his judgment, that would make the trial court or this Court the
sole arbiter, on a case by case basis, as to who should be immune
and who should not.‖63
6.123 As a result, all three appeal court judges unanimously rejected an
extension to the witness immunity to cover FTP proceedings and that the FPP
of the GMC had the requisite jurisdiction to entertain the allegations against
Professor Meadow.
6.124 This appeal court decision is a lengthy, well reasoned judgment that
took into account submissions from expert witnesses and the Attorney General
on issues involved. It provides a summary of the relevant case law and
expresses firm authority in support of the decision not to extend the witness
immunity. Furthermore, those commentators that have criticised the decision

62
[2006] EWCA Civ 1390 (26 October 2006) at [45]
63
[2006] EWCA Civ 1390 (26 October 2006) at [115]

332
have done so because the courts did not go so far as to rule out immunity for
expert witnesses from civil proceedings for professional negligence. 64
6.125 This decision, therefore, provides strong support for the suggested
reform of the creation of a dedicated disciplinary body for expert witnesses, or
the encouragement of professional bodies to create their own disciplinary
panels.
(4) What Circumstances Should Disciplinary Action Be Taken In?
6.126 The General Medical Council v Meadow 65 litigation also gave
considerable consideration to the range of circumstances under which a referral
to a disciplinary body should be made and when disciplinary action would be
taken.
6.127 In the High Court decision, Collins J held that an expert witness
should only be referred to a professional regulatory body where the judge in the
case in which he was giving evidence was of the opinion that he manifested
shortcomings that were sufficiently serious to require disciplinary action. An
honestly held belief, even though mistaken, would not be sufficient to give rise
to a finding of serious professional misconduct leading to disciplinary action.
6.128 Giving the judiciary the authority to determine when to refer an expert
witness to his professional body was subsequently rejected by the Court of
Appeal. However, by a majority, the Court of Appeal upheld Collins J‘s decision
that Professor Meadow was not guilty of serious professional misconduct and
so should not have been made the subject of professional disciplinary action.
6.129 This would imply that a considerably serious breach or lapse in
standards, a ―calculated or wilful failure,‖ 66 is necessary to justify initiating
disciplinary action. Although Professor Meadow‘s mistake had significantly
onerous consequences, his opinion was honestly held and he had acted in
good faith at all times.
(5) Types of Professional Disciplinary Sanctions
6.130 Disciplinary measures would be imposed where the regulatory body
has received complaints from members of the public, the legal profession, other
experts, or the court, due to a perceived failure by a particular expert to comply
with the code. The Body should undertake a complete investigation of such

64
See Blom-Cooper ―Fault Lines Remain After Meadow‖ (2006) 156 NLJ 1697
65
[2006] EWHC 146 (Admin) (17 February 2006); [2006] EWCA Civ 1390 (26
October 2006)
66
As per Collins J General Medical Council v Meadow [2006] EWHC 146 (Admin)
(17 February 2006 at [55]

333
claims and there should be a fully functioning appeals procedure to enable an
expert to address criticisms.
(a) Admonish or Censure the Expert
6.131 If a dedicated disciplinary body or regulatory body was created for
expert witnesses, this body would be expected to continually review and
monitor the conduct of all individuals engaged in giving expert testimony, and
not just those that have had complaints made against them by clients, solicitors
or barristers.
6.132 Therefore, even where the breach or misconduct by the expert
witness is not of a serious nature, for example incorrect format of an expert
report or mild judicial criticism of the expert as manifesting slight bias, at times it
may be necessary for the disciplinary body to intervene and impose a formal
warning on the expert. This would act as a censure against more serious
breaches by the expert, and ensure that they are reminded of their duties and
obligations.
(b) Require Formal Apology
6.133 In some instances, the conduct of the expert witness, although
wrong, may not have resulted in any serious implications for the parties or the
legal professionals involved. For instance, the expert may have been criticised
by the trial judge as giving partisan evidence, but the judge may also consider
that his evidence is still to be preferred as it appears to best reflect what was
likely to happen. In such instances, although the expert‘s party was successful,
the opposite result may have also been achieved based on the expert‘s
misconduct.
6.134 Where such a case is brought to the attention to an expert witness
regulatory or professional body, requiring the expert witness to give a formal
apology to his instructing party and counsel may be all that is necessary to
remedy the situation. As mentioned above, this would also have the effect of
acting as a censure for the expert against more serious breaches and also
remind the expert of the extent of their role and function.
(c) Require Payment of Compensation/Fine to Aggrieved Party/
Disciplinary Body
6.135 If the professional misconduct has resulted in monetary loss to the
parties or counsel, or where the misconduct is significant but not so serious as
to warrant striking off of the expert, a monetary award may be sufficient
compensation.
6.136 Alternatively, the professional expert body may require the expert
witness to pay a monetary fine to the disciplinary body.

334
(d) Striking Off
6.137 In General Medical Council v Meadow 67 the disciplinary action taken
by the GMC was the striking of his name from the medical register of the GMC.
Registration with the GMC is a mandatory prerequisite to acting as a GP in the
United Kingdom so the sanction of erasure effectively prevented him from
practising medicine. This is an extremely severe sanction; this may have
influenced the court‘s ultimate decision to reverse the penalty.
6.138 However, if an expert witness were struck off the register of a
dedicated regulatory body for expert witnesses, this would not have such
severe consequences. Erasure or suspension from an expert witness register
for misconduct in the giving of expert evidence would only prevent the person
from acting as an expert witness for as long as the sanction is in place. It would
still be open to the individual to practise within their particular profession.
6.139 Although if the misconduct was of a very serious nature, likely to
influence their fitness to practise the profession generally, the imposition by an
expert witness body of professional sanctions may lead the individual‘s
governing professional body to consider initiating their own investigation of the
matter.
(6) Immunity Issues: Conclusion
6.140 Having reviewed this area, the Commission is persuaded by the
approach taken by the English Court of Appeal in the Meadow case. In that
respect, the Commission considers that, where a court finds that an expert has
acted in a manner inconsistent with their paramount duty to the court, they may
refer such expert to the disciplinary committee of the appropriate professional
body to deal with that witness. This does not, of course, preclude the
professional body itself from taking action independently of the court. While
there may be some cases in which, in principle, an expert witness may not be a
member of an existing professional body, the Commission considers this is
unlikely in this jurisdiction. Consistent with this approach, the Commission
provisionally recommends that the immunity from suit for expert witnesses
should not be extended to cover disciplinary proceedings from professional
bodies.
6.141 The Commission provisionally recommends that the immunity from
suit for expert witnesses should not be extended to cover disciplinary
proceedings from professional bodies.

67
[2006] EWHC 146 (Admin) (17 February 2006); [2006] EWCA Civ 1390 (26
October 2006)

335
D Expert Witness Immunity from Civil or Criminal Suit
6.142 As mentioned above, the main reason why the English courts have
shown a readiness on certain occasions to refer an expert witness to his or her
governing professional body for professional sanctions is that the court itself
was restrained from disciplining the expert due to the well established existence
of an immunity of witnesses from civil or criminal proceedings.
6.143 Several cases in this and other jurisdictions have considered the
immunity and given justifications for its retention. The immunity exists for the
benefit of the public, as it is considered that the proper administration of justice
requires assurance that witnesses are not discouraged from giving full and
complete evidence due to the fear of liability. As summarised by Murphy J in
Looney v Bank of Ireland & Morey; 68 the immunity stems from ―the necessity of
affording to witnesses the opportunity of giving their evidence freely and
fearlessly.‖69
6.144 The purpose of the immunity was explained by Pigot CB in Kennedy
v Hilliard70 in the context of a defamation charge;
―[The] purpose is, to give him the courage to resort as a party to the
legal tribunals for justice, or, as a witness, to give his evidence before
these tribunals, undeterred by the fear of a prosecution or an action.
It is impossible that he can be free from that fear, if his immunity must
depend on his not mistaking what is not material for what is, and
upon his rightly distinguishing what is from what is not libel or
actionable slander.‖71
6.145 This reasoning has particular relevance in the context of expert
evidence in Ireland based on the size of the jurisdiction and the related small
size of the pool of potential experts in any one field. Any reform that may affect
the numbers of experts willing to give expert evidence is to be avoided.
However, there have been increasing calls from commentators on this topic to
abolish the immunity. Furthermore, there have been some tentative indications
from the case law that this may occur in the near future.

68
[1996] 1 IR 157
69
[1996] 1 IR 157 at 161
70
(1859) 10 Ir. Com. Law Rep. 195; (1859) 4 Ir. Jur. N.S. 286
71
(1859) 10 Ir. Com. Law Rep. 195; (1859) 4 Ir. Jur. N.S. 286

336
(1) Ireland
(a) Common Law Immunity
6.146 The law on general witness immunity in Ireland is largely reflective of
that in other jurisdictions, and much of the Irish case law recognising the
immunity makes reference to cases from England and Wales, and Australia and
endorse the existence of a general witness immunity which, in more recent
cases, has been held to cover expert witnesses.
(i) Recognition of Witness Immunity
6.147 The existence of immunity for witnesses has been recognised in this
jurisdiction on numerous occasions. In Re Haughey72 O Dalaigh CJ expressly
acknowledged the immunity and explained the reasons for this;
―The immunity of witnesses in the High Court does not exist for the
benefit of witnesses, but for that of the public and the advancement
of the administration of justice and to prevent witnesses from being
deterred, by fear of having actions brought against them, from
coming forward and testifying to the truth. The interest of the
individual is subordinated by the law to the higher interest, namely,
that of public justice, for the administration of which it is necessary
that witnesses should be free to give their evidence without fear of
consequences.‖
6.148 The immunity was also at issue in Looney v Bank of Ireland &
Morey.73 Here, the plaintiff sought to pursue a libel and defamation claim
against the second-named defendant for evidence she had given against him,
as a lay witness, in an earlier mortgage suit. In the High Court Murphy J cited
the comments of Pigot CB in Kennedy v Hilliard;74
―…for what is stated by a party on his own behalf, or a witness in
giving evidence in the ordinary course of a judicial proceeding, there
is absolute immunity from liability to an action for libel or slander.‖ 75
6.149 Murphy J accepted the defendant‘s argument that the case should be
struck out due to the existence of an absolute privilege in relation to matters
said in the course of judicial proceedings, which precludes legal action from
being taken against any witness giving evidence in such proceedings.

72
[1971] IR 217
73
[1996] 1 IR 157
74
(1859) 10 Ir. Com. Law Rep. 195; (1859) 4 Ir. Jur. N.S. 286
75
(1859) 10 Ir. Com. Law Rep. 195 at 200

337
6.150 He rejected the plaintiff‘s contention that such a privilege derived
from the Royal Prerogative and thus did not survive the enactment of the
Constitution. Alternatively, he found that such a privilege ―derives from the very
nature of the judicial process and the independent judiciary created by our
Constitution.‖76
6.151 Murphy J also acknowledged the plaintiff‘s argument that the witness‘
comments had damaged his good name, and recognised the Constitutional
right to vindicate one‘s good name. However he held that the Constitutional
right of access to the courts and to appropriate legal process, which necessarily
requires calling witnesses to give evidence concerning the matters in issue,
must be reconciled with ―the rights of others to be protected against any abuse
of their rights which might be involved or occur by reason of the evidence given
on behalf of the parties.‖77
(ii) Extent of Witness Immunity
6.152 However, Murphy J also acknowledged that the courts also have a
duty to ensure that legal proceedings are not abused to the detriment of
persons not an action to the case. Therefore, the privilege or immunity will not
apply where it can be shown that the witness was invoking it to abuse the legal
process. As stated by Murphy J;
―If a witness was to take advantage of his position and of the
absolute privilege which he enjoyed, to digress from the proceedings
in hand and make a wholly irrelevant and completely unwarranted
attack on the good name or reputation of another citizen who did not
have a chance of defending himself….In my view such an abuse of
the legal process would constitute contempt of court and be
punishable accordingly.‖ 78
6.153 The decision of Murphy J was upheld in the Supreme Court where
the existence of immunity for witnesses was confirmed but where it was also
recognised that this immunity has its limits and it remains open to the court to
suspend it where it appears that the witness acted maliciously and where the
testimony was held to be irrelevant to the issue in court. O‘Flaherty J confirmed
the dictum of O Dalaigh CJ in Re Haughey79 where he stated:
―It is salutary to hear in mind that even in the High Court, if a witness
were to take advantage of his position to utter something defamatory

76
[1996] 1 IR 157 at 161
77
[1996] 1 IR 157 at 160
78
[1996] 1 IR 157 at 161
79
[1971] I.R. 217

338
 having no reference to the cause or matter of enquiry but introduced
maliciously for his own purpose, no privilege or immunity would
attach and he might find himself sued for an action for defamation.‖ 80
(iii) Continued Judicial Endorsement of Witness Immunity
6.154 The decision in Looney81 involved a defamation action taken against
the witness for statements made whilst giving evidence in court proceedings.
Subsequent to this decision, the question arose whether the immunity was
limited to defamation actions or whether a witness is immune from all civil or
criminal suits arising out of evidence given in court.
6.155 In Fagan v Burgess82 the decision is Looney83 was approved to
support a finding that a witness in a civil action is immune from being sued for
perjury. O‘Higgins J rejected the plaintiff‘s arguments that the immunity should
not extend to perjury claims because perjury is a graver matter than defamation
and unlike defamation is always intentional.
6.156 O‘Higgins also rejected the argument that the public policy
considerations for granting privilege do not stand up to scrutiny, and that if an
action for perjury were to be allowed, it would be likely to aid, rather than hinder,
the administration of justice by being a disincentive to people to commit perjury.
O‘Higgins held that the proceeding should be struck out finding that no different
principles apply with respect to privilege where perjury is involved than where
defamation is involved.84
6.157 Witness immunity was also applied to strike out an action for
negligence in McMullen v Clancy.85 Here, the plaintiff‘s property purchase had
resulted in a dispute with the vendors concerning access routes to the property
which had been settled on terms unfavourable to the plaintiff. He then took legal
action against his solicitors arising from this but his claim failed largely because
of the evidence given by senior counsel instructed by those solicitors. In this
further case, the plaintiff sought damages from this senior counsel alleging
negligence and breach of duty arising from the fact that he had given evidence
against him.

80
[1971] I.R. 217
81
[1996] 1 IR 157
82
[1998] IEHC 52
83
[1996] 1 IR 157
84
[1998] IEHC 52 at [9]
85
[1999] IEHC 252

339
6.158 The defendant argued that this case should be dismissed as the
existence of common law immunity from suit for witnesses in regard to the
giving of evidence in court is well established, and cited several English cases,
including, Marrinan v Vibart,86 Hargreaves v Bretherton87 and Watson v
McEwan88 in support of this. These arguments were unreservedly endorsed by
McGuiness J:
―I accept on the authority of the cases opened to me that there is an
overwhelming public policy argument for maintaining the common
law rule that a witness is immune from suit in regard to the evidence
which he gives in Court.‖ 89
(iv) Witness Immunity & Application to Expert Witnesses
6.159 The above cases firmly established the existence for immunity for
witnesses from civil or criminal proceedings arising out of evidence given in
court proceedings. More recently, the question arose as to whether this
immunity equally covers expert witnesses or whether different considerations
apply.
6.160 In O'Keeffe v Kilcullen & Ors90 the plaintiff sought damages for
negligence against the medical expert witness appointed by the court to carry
out a psychiatric assessment for the purposes of nullity proceedings. The
plaintiff claimed the defendant expert had failed in the duty owed to the plaintiff
to exercise reasonable care and skill in the making of the psychiatric report and
its contents.
6.161 In response, the defendant expert argued that the proceedings
should be dismissed because inter alia an expert witness enjoys immunity from
suit in negligence relating to the evidence given by him in court, and also in
relation to the work principally and proximately relating thereto. In support of this
argument, the defendant referred to English case law confirming the existence
of the immunity, for example, Marrinan v Vibart,91 Evans v London Hospital
Medical Hospital College92 and Palmer v Durnford Ford.93 The defendant further

86
[1962] 3 All ER 3
87
[1958] 3 All ER 122
88
[1905] AC 480
89
[1999] IEHC 252; The existence of witness privilege was endorsed without
question on appeal: McMullen v McGinley [2005] IESC 10
90
[2001] IEHC 17
91
(1962) 1 All ER 869
92
[1981] 1 All ER 715

340
raised two important public policy considerations which support the retention
immunity for expert witnesses. These are;
―(A) Witnesses (including expert witnesses) should be encouraged to
present to Court all the evidence that it is desirable that the Court
should hear without the worry that afterwards their time, energy and
possibly their own money might be devoted to defending post
evidential suits (a proportion of which might well be bona fide and
otherwise justifiable); and
(B) The Court lists should not be cluttered up with post evidential
litigation which would inevitably involve retrying some issues or some
aspects of issues which have already been dealt with in Court.‖ 94
6.162 O‘Sullivan J rejected the plaintiff‘s argument that Looney95 did not
have binding effect on this case because it involved lay and not expert
witnesses and was thus distinguishable. He also rejected the plaintiff‘s
argument that English case law such as Hall v Simons96 demonstrates a shift in
jurisprudence in this area which necessitates considering the application of
immunity from suit afresh to ensure that it is clearly justifiable.
6.163 On the contrary, O‘Sullivan J found that he considered himself
expressly bound by Looney97 and Fagan98 and decided the case on the basis of
the precedent set therein;
―From the foregoing it is clear that the witness in Looney gave
evidence at the behest of the Court and the evidence was relevant to
an issue in the action. In those circumstances the decision of the
Supreme Court is that absolute immunity privilege attached to such
evidence. There is no hint that an exception should or could be made
in the case of an expert and whilst there are some passages in the
more recent jurisprudence of the United Kingdom which might give
grounds for distinguishing the evidence of expert witnesses from the
evidence of witnesses generally and in particular in the Judgment of
Chadwick L.J. in Stanton v Callaghan [1998] 4 All ER 961 at page
974, this passage, which is clearly obiter, must be seen in the context

93
[1992] 2 All ER 122
94
[2001] IEHC 17 at 22-23
95
[1996] 1 IR 157
96
[2000] 3 All ER 673
97
[1996] 1 IR 157
98
[1998] IEHC 52

341
 of the evolved jurisprudence in that country on this general topic and
in my view that development in the United Kingdom in no way
disturbs the binding nature on me of the decision in Looney of the
Supreme Court.‖
6.164 However, he further held that, as stated in Looney,99 a limitation can
be placed on the immunity where the evidence given is seen to be malicious
and irrelevant to the issues before the Court.
6.165 The plaintiff appealed to the Supreme Court where O‘Sullivan J‘s
dictum was approved and the court held that no claims could be brought against
the defendant expert witness. Here, Murphy J described the well-established
immunity of witnesses as ―the by-product of conflicting constitutional rights and
the impact of public policy on the administration of justice.‖ 100
6.166 Murphy J cited with approval earlier Irish case law confirming the
existence of witness immunity. He then went on to acknowledge the fact that
the English decision of Hall v Simons101has had the effect of significantly
restricting the range of persons to whom the immunity will apply in the United
Kingdom but found that even if this decision were followed in this jurisdiction it
would not affect witness immunity as that case was concerned with the liability
of lawyers. It did not, he argued, ―purport to strip witnesses of the immunity
which had been conferred on them in the public interest.‖
6.167 The established parameters of the immunity were also confirmed
where Murphy J held that even if negligence on behalf of the expert witness in
this case were established, the court would still be right in concluding that the
witness was entitled to avail of the immunity. The immunity will only be departed
from, he reiterated, where a witness ―so departed from the duties which he or
she was purporting to perform as to abuse his position that he would forfeit the
immunity which he was abusing.‖
6.168 Expert witness immunity was considered most recently in WJ
Prendergast & Ors v Redver Skelton.102 Here, an expert Fire Consultant was
hired by the respondents in a malicious injury claim pursuant to a fire in the
plaintiff‘s factory, and in these proceedings the plaintiff alleged that the applicant
had given false and misleading evidence in the proceedings and that he
interfered with the analysis of samples for a wrongful purpose. The applicant
argued that the proceedings should be struck out as inter alia as a witness he

99
[1996] 1 IR 157
100
[2001] IESC 84
101
[2000] 3 All ER 673
102
[2007] IEHC 192

342
was immune from suit as the proceedings were based on evidence he had
given in court.
6.169 In the High Court, McGovern J considered when the immunity from
suit would be removed and again endorsed the decisions in Re Haughey103 and
Looney.104 Based on these, the court dismissed the suit against the plaintiff
expert finding that he was entitled to avail of the immunity from suit of
witnesses.
(b) Statutory Immunity
6.170 Although witness immunity has been well established at common
law, its precise application can be uncertain. This was acknowledged by Murphy
J in O'Keeffe v Kilcullen & Ors105 where he stated that witness immunity ―is a
matter with a long and, at times, confused, history.
6.171 Due to this uncertainty, in certain cases, the common law immunity
has been bolstered by statutory provisions. For example, Section 102 of the
Children Act 2001, which deals with probation officers reports, provides for
immunity from liability for any probation officer who, acting in good faith,
prepares a report requested under this section of the Act.
6.172 Similarly, the Arbitration (International Commercial) Act 1998
provides for the appointment of expert witnesses in an arbitral tribunal to report
to it on specific issues. It expressly provides that such experts are not liable for
anything done or said in the discharge of their statutory duties unless they acted
in bad faith.
(c) Conclusion
6.173 The above discussion demonstrates that expert witness immunity
from civil or criminal suits in respect of evidence given in court proceedings has
been unequivocally endorsed in this jurisdiction on numerous occasions.
Furthermore, there is no evidence to suggest the development of a body of
support for removing this immunity.
6.174 It therefore appears unlikely, particularly bearing in mind
Constitutional considerations, that the Irish courts are likely to alter this view
and consider imposing liability on witnesses. However, it can be argued that, as
mentioned in some of the Irish case law discussed above, recent English case
law has taken some tentative steps in this direction.

103
[1971] I.R. 217
104
[1996] 1 IR 157; Unreported, Supreme Court 9 May 1997
105
[2001] IESC 84

343
(2) England and Wales
6.175 The existence of common law witness immunity has been firmly
th
established and justified in several English cases dating back to the 19
century. Although the case law continues to endorse the necessity for the
immunity, the precise scope of application has come under scrutiny in recent
years, and the courts can be seen to be rowing back from blanket immunity to
limiting it to that absolutely necessary.
(i) Recognition of Witness Immunity
6.176 As far back as 1585 the need to protect witnesses from liability
resulting from their comments or actions whilst giving evidence has been
recognised. In Cutler v Dixon106 the King‘s Bench stated;
―It was adjudged, that if one exhibits articles to justices of peace
against a certain person, containing divers great abuses and
misdemeanours, not only concerning the petitioners themselves, but
many others, and all this to the intent that he should be bound to his
good behaviour; in this case the party accused shall not have for any
matter contained in such articles any action upon the case, for they
have pursued the ordinary course of justice in such case; and if
actions should be permitted in such cases, those who have just
cause for complaint would not dare to complain for fear of infinite
vexation.‖
6.177 The immunity was confirmed in clearer terms by Kelly CB in the 1873
decision Dawkins v Lord Rokeby;107
―No action lies against parties or witnesses for anything said or done,
although falsely and maliciously and without any reasonable or
probable cause, in the ordinary course of any proceedings in a court
of justice.‖108
6.178 Two public policy rationales have been repeatedly identified as
underling the immunity of witnesses.109 The first of these was referred to in

106
(1585) 4 Co. Rep. 14b, 76 E.R. 886 Cited in Darker & Ors v Chief Constable of
The Mid-Westland Police [2000] UKHL 44; [2000] 3 WLR 747 (27th July, 2000)
107
(1873) LR 8 QB 255
108
(1873) LR 8 QB 255 at 264 This statement was cited with approval by the House
of Lords in Darker & Ors v Chief Constable of The Mid-Westland Police [2000]
UKHL 44; [2000] 3 WLR 747 (27th July, 2000)
109
See Simon-Brown LJ‘s summary of the public policy purposes underlying the
immunity in Silcott v Commissioner of Police for the Metropolis [1996] 8 Admin
L.R. 633 at 637

344
Munster v Lamb110 where Frye LJ confirmed that witnesses are immune from
action for statements made in the course of giving evidence, even where it can
be shown that the witness acted with malice;
―The rule of law exists not because the conduct of those persons
ought not of itself to be actionable but because if their conduct were
actionable, action would be brought against judges and witnesses in
cases in which they had not spoken with malice, in cases in which
they had not spoken with falsehood. It is not a desire to prevent
actions from being brought in cases where they ought to be
maintained that has led to the adoption of the present rule of law: but
it is the fear that if the rule were otherwise numerous actions would
be brought against persons who were merely discharging their duty.
It must always be borne in mind that it is not intended to protect
malicious and untruthful persons, but that it is intended to protect
persons acting bona fide who under a different rule would be liable,
not perhaps to verdicts and judgments against them but to the
vexation of defending actions.‖
6.179 Therefore, the first objective of the immunity is to ensure that
witnesses give their evidence freely without fear of liability. 111 This was
reiterated by Salmon J in Marrinan v Vibart112 where he stated that witness
immunity is necessary because;
―….the administration of justice would be greatly impended if a
witness were to be in fear that any disgruntled or possibly
impecunious persons against whom they gave evidence might
subsequently involve them in costly litigation.‖
6.180 The second objective of the immunity is to avoid successive actions
and ensure finality in court proceedings. This was referred to by Lord
Wilberforce in Roy v Prior113 where he stated the immunity is designed ―to avoid

110
(1883) 11 QBD 588
111
See also Hoffman LJ‘s comments in Taylor v Serious Fraud Office [1999] 2 AC
177 where he explained that the immunity rule ―is designed to encourage freedom
of speech and communication in judicial proceedings by relieving persons who
take part in the judicial process from the fear of being sued for something they
say.‖
112
(1962) 1 All ER 869
113
[1971] A. C. 470

345
multiplicity of actions in which the value or truth of their evidence would be tried
over again.‖114
6.181 These justifications can be seen to have shaped the decision in Re
N.115 Here, the plaintiff sought damages for psychological trauma which she
alleged she suffered due to the defendant expert‘s failure to show up in court to
give evidence in a rape case, in which she was the complainant, and where as
a result of the non arrival of the expert, it was held the defendant had no case to
answer.
6.182 The plaintiff acknowledged the existence on an immunity for experts
which prevented the allegation that a duty to give evidence was owed, but went
on to argue that on fundamental tort principles on the duty of care, that it was
reasonably foreseeable that the plaintiff would have suffered exacerbation of
psychiatric trauma where the accused in the rape case was not convicted,
therefore the defendant owed a duty of care to take all reasonable steps to
provide evidence and attend the trial as a prosecution witness.
6.183 The existence of such duty was rejected by the court. It was
considered that if any duty were to exist it would be a duty to take reasonable
care to prevent the plaintiff suffering psychiatric injury, but that this would be
bound to fail also had it been claimed due to the lack of proximity between the
parties. The plaintiff‘s claim was also bound to fail as a result of the well
established existence of the witness‘ immunity. Chadwick LJ explained that ―an
attempt to assert and establish that the law recognises that, absent contract,
any duty of care is assumed by a potential witness, in that role, towards anyone
who may be affected by the evidence which he or she gives in court is doomed
to failure‖ in the light of those decisions expressly recognising witness
immunity. He went on to justify this:
―The reason, as the courts have stressed over many years, is that the
public interest in the proper administration of justice requires that
witnesses and potential witnesses should not be discouraged from
coming forward and giving such evidence as they properly can by a
concern that their participation may expose them to proceedings -
however vexatious or ill-conceived - by those who perceive
themselves to be adversely affected by that evidence.‖ 116

114
[1971] A. C. 470 at 480
115
[1999] EWCA Civ 1452 (20 May 1999)
116
[1999] EWCA Civ 1452 (20 May 1999) at [8]

346
(ii) Extent of Immunity from Suit
6.184 More recent case law has given greater consideration to the
parameters of the immunity and it has been observed that the courts have
shown a marked reluctance to extend the immunity. 117
6.185 In Darker & Ors v Chief Constable of the Mid-Westland Police118 the
plaintiffs sought damages for conspiracy to injure and the tort of misfeasance in
public office against police officers in respect of their breach of disclosure
process prior to the plaintiff‘s trial. As the actions concerned occurred prior to
the trial process, no challenge was made to what is referred to as the ‗core
immunity,‘ namely the immunity covering things said or done while in the
witness box.
6.186 However, it was considered that the plaintiff‘s claim necessitated a
determination of the exact extent of the immunity outside of its application in
court. As a result, all the Lords of Appeal all gave significant consideration to
the boundaries of the immunity, which provides a good summary of the current
English position regarding witness immunity.
6.187 The above mentioned public policy reasons for the immunity were
acknowledged and approved, but it was explained that these must be balanced
against the principle that a wrong ought not to be without a remedy. ―The
immunity,‖ Hope LJ reasoned, ―is a derogation from a person‘s right of access
to the court which requires to be justified.‖ However, he also recognised that if
the public policy objective underlining the immunity, namely the protection of
witnesses for the proper administration of justice, the immunity cannot be
limited to things done or said in court and the Lord Justices went on to approve
a number of recognised extensions of the immunity.
6.188 In Watson v McEwan119 it was held that the immunity must extend to
the preliminary examination of witnesses to determine what information they
can provide. Similarly, in Evans v London Medical College (University of
London)120 it was held that it must also cover evidence from potential witnesses
when court proceedings are in contemplation but not yet commenced.
6.189 In X (Minors) v Bedfordshire County Council 121 an expert report
prepared in order to be relied on in child abuse proceedings, even where the

117
Per Clarke MR in Meadow v GMC [2006] EWCA Civ 1390 at [17]
118
[2000] UKHL 44; [2000] 3 WLR 747 (27th July, 2000)
119
[1905] A.C. 480
120
[1981] 1 WLR 184
121
[1995] 2 AC 633

347
expert did not give evidence in the proceedings, was held to be covered by the
immunity.
6.190 In Taylor v Director of the Serious Fraud Office, 122 out of court
statements that would be considered part of the process of investigating crime
with a view to prosecution were seen as covered.
6.191 However, Lord Hoffman‘s decision was approved in Taylor v Director
of the Serious Fraud Office,123 where it was stressed that immunity cannot be
claimed over a charge of malicious prosecution. 124
6.192 The House of Lords recognised that the exact boundaries of the
immunity can be difficult to determine where the statements are made prior to
the trial. They held that the line is to be drawn at the time where court
proceedings come under consideration and thus where the statements related
to the giving of evidence; anything before this will not be covered. As described
by Scott VC in Bennett v Commissioner of Police for the Metropolis,125 it applies
only to out of court statements ―if these were clearly and directly made in
relation to the proceedings in court.‖
6.193 The Lords all expressed reluctance at the imposition of blanket
immunity and all reiterated the need to ensure that the immunity is limited to
that which is necessary for the administration of justice. The judgment of the
Australian High Court in Mann v O’Neill126 was approved:
―The general rule is that the extension of absolute privilege is ‗viewed
with the most jealous suspicion, and resisted, unless its necessity is
demonstrated‘.‖127
6.194 The House of Lords here held that the work of police officers that
cannot fairly be said to form part of their participation in the judicial process as
witnesses should not be covered by the immunity. As the actions of the officers

122
[1999] 2 AC 177
123
[1999] 2 AC 177
124
Four elements are necessary to establish this tort; 1. The claimant is prosecuted
in the criminal courts 2. The prosecution is resolved in the claimant‘s favour 3.
The prosecution was brought without reasonable and probable cause 4. The
prosecution was malicious. (Hodgkinson & James Expert Evidence: Law and
nd
Practice (2 ed Sweet & Maxwell 2007) at 13-001 fn. 2
125
(1997) 10 Admin. L.R. 245
126
(1997) 71 A.L.J.R. 903
127
Per Brennan CJ, Dawson J, Toohey J and Gaudron J (1997) 71 A.L.J.R. 903 at
907

348
here occurred in the investigatory stage and not at the stage where they were
considering the giving of evidence at trial, the reasons justifying the immunity
did not apply. The appeal was thus unanimously allowed.
(iii) Immunity from Suit and its Application to Expert Witnesses
6.195 In Palmer v Durnford Ford128 the expert engineer engaged by the
plaintiff‘s produced a written report advising them that they had a justified claim.
However, at trial, and having seen the reports of the expert for the other side, it
became apparent that no claim was justifiable and the case was abandoned.
The expert claimed immunity from suit as he was acting at all times in the
course of preparing evidence for a possible claim.
6.196 The Court acknowledged earlier case law recognising immunity for
witnesses in preparing statements with a view to giving evidence. However, he
emphasised that this immunity should only be conferred where absolutely
necessary, and where it would inhibit the expert witness from giving truthful and
fair evidence. However, he went on to state that there is no good reason why
the imposition of liability for failure to give proper advice to clients should inhibit
the ability of expert witnesses to give such truthful and fair evidence. The
plaintiff was therefore entitled to sue for negligence. He stated:
―I can see no good reason where an expert should not be liable for
the advice which he gives to his clients as to the merits of the claim,
particularly if proceedings have not been started and a fortiori as to
whether he is qualified to advise at all.‖ 129
6.197 The Court went on to make some general comments about the exact
circumstances where an expert could or could not rely on the immunity. He
cited the decision in Saif Ali v Sidney Mitchell & Co130 which considered the
correct test to apply to determine when advocates are entitled to avail of the
immunity. The Court here opined that a similar approach to that taken in Saif131
could apply in the context of experts, and thus the immunity would only apply to
that which could fairly be said to be preliminary to his giving evidence in court,
judged perhaps by the principal purpose for which the work was done.
6.198 The test in Palmer was subsequently applied in Landall v Faulkner &
Ors132 and a claim for negligence struck out against an expert consultant as it

128
[1992] QB 483
129
This decision was approved in X (Minors) v Bedforshire County Council [1995] 2
AC 633
130
[1980] AC 198
131
[1980] AC 198
132
[1994] 5 Med LR 268

349
was held that his advice constituted ―pre-trial work…so intimately connected
with the conduct of the case in court that it could fairly be said to be a
preliminary decision affecting the way that the case was to be conducted when
it came to a hearing.‖
6.199 In Stanton v Callaghan133 the plaintiffs alleged negligence and breach
of retainer against an expert arising out of the expert‘s conduct in preparing and
creating, in conjunction with the expert for the other party, a joint statement for
the plaintiff for the purposes of court proceeding, which they alleged resulted in
a significant and erroneous reduction in the award granted to them at trial. The
question for determination here was whether or not the expert‘s actions fell
within the principles governing witness immunity from suit, where the expert did
not give evidence as the trial did not take place.
6.200 Chadwick LJ reasoned that the duty of expert witnesses, in the
interests of justice, to make all possible efforts to reduce contentious issues at
trial by engaging in full and frank pre-trial discussions necessitates an
assurance that the experts are free to make concessions without fear that
departing from any previous advice given to the retaining party could lead to a
negligence action. He approved the test set out in Palmer134 as applied in
Landall.135
6.201 For these reasons, and by applying the Palmer test, he found that the
expert here was entitled to avail of the immunity, even where the trial does not
take place. Otton LJ and Nourse LJ concurred with this decision and both
agreed that the ‗principle purpose test‘ was the appropriate one to apply when
considering the immunity of pre-trial work.
6.202 However, Otton LJ did express one note of caution. While he agreed
with the general points made by Chadwick J, he emphasised that such
considerations may not be present in every case. He explained that a greater
degree of protection may need to be given to some classes of experts than to
others, for example family law cases or those concerning the welfare of the
child. He was therefore reluctant to draw rigid categories determining the cases
where immunity would be granted preferring to leave determination on a case
by case basis. The test, he felt, should be is it in the best interests of the
administration of justice to grant immunity.

133
[1998] EWCA Civ 1176 (8 July 1998)
134
[1992] QB 483
135
[1994] 5 Med LR 268

350
6.203 In the Scottish decision Karling v Purdue136 the pursuer sought
damages for loss and damages resulting from breach of contract and
negligence of the defender, a medical expert retained by the pursuer to carry
out a post-mortem and give conclusions on likely cause of death in the context
of a murder charge of which the pursuer was subsequently convicted.
6.204 In his report, the defender had concluded that the deceased was
most likely to have died from suffocation, as did the Crown‘s report. However,
on appeal additional scientific evidence was adduced and it was found that the
conclusion of suffocation was without scientific basis, and the pursuer‘s
conviction was subsequently quashed.
6.205 The defender claimed that as he had prepared a post mortem report
and opinion in his capacity as an expert witness, and as these were prepared
with a view to forming part of the evidence to be given at the trial, absolute
immunity attaches to the defender both in terms of what is contained in that
report and opinion, and alleged to have been negligently omitted.
6.206 The pursuer argued that a functional test, requiring the statement to
have been prepared for the purposes of giving evidence, is discernible from
Darker.137 If the test is applied to the case at hand, it was argued, the defender‘s
function was not to prepare a document which set out the evidence which he
would give in Court because he was preparing his report at a time when the
precise basis of the Crown‘s case was unclear and he did not know whether he
was likely to give evidence on behalf of the accused. The immunity should not
therefore have applied.
6.207 The Court gave an extensive summary of the case law to date
dealing with the extent of the immunity for witnesses, including expert
witnesses. Form the conclusions that can be drawn from these cases, he found
that the defender came clearly within the scope of witness immunity. He
rejected the pursuer‘s argument that at the time the expert had prepared the
report it was not clear if he would give evidence and held that in fact it was
difficult to conclude otherwise than that the principal purpose the defender was
engaged was to give evidence on his behalf in criminal proceedings.
(iv) Curtailment of the Immunity in the Context of Advocates
6.208 In Rondel v Worsley138 the necessity for immunity from suit in the
specific context of the conduct of barristers in court was unequivocally
recognised. Three public policy reasons were advanced in support of this

136
[2004] ScotCS 221
137
[2000] UKHL 44; [2000] 3 WLR 747 (27July 2000)
138
[1969] 1 AC 191.

351
blanket immunity. First, the administration of justice required that a barrister
should be able to carry out his duty to the court fearlessly and independently.
Second, allowing such actions would necessitate retrying the original actions
and thus prolong litigation. Third, a barrister was obliged to accept any client,
however difficult, who sought his services.
6.209 The blanket immunity propounded in Rondel139 was restricted
somewhat by Saif Ali v Sidney Mitchell & Co.140 Here the question to be
considered was whether or not the immunity extended to cover the negligence
of a barrister in failing to join a party in court proceedings. Lord Wilberforce
acknowledged the public policy arguments in Rondel but also pointed out that
that ―account must be taken of the counter policy that a wrong ought not to be
without a remedy.‖141 The House of Lords concluded that a barrister‘s immunity
from suit should extend only to such pre-trial work as was intimately connected
with the conduct of the case in Court as distinct from other work such as giving
the client legal advice.
6.210 Since these decisions, the position of the immunity of barristers and
solicitors has been dramatically altered by the House of Lords decision in Hall v
Simons142 where it was considered that societal changes necessitated a
rethinking of the immunity that should be granted to advocates. As Lord
Hoffman explained;
―I have now considered all the arguments relied upon in Rondel v
Worsley. In the conditions of today, they no longer carry the degree
of conviction which would in my opinion be necessary to sustain the
immunity. The empirical evidence to support the divided loyalty and
cab rank arguments is lacking; the witness analogy is based upon
mistaken reasoning and the collateral attack argument deals with a
real problem in the wrong way. I do not say that Rondel v Worsley
was wrongly decided at the time. The world was different then. But,
as Lord Reid said then, public policy is not immutable and your
Lordship must consider the arguments afresh.‖143
6.211 The House of Lords went on to unanimously hold that advocates no
longer enjoyed immunity from suit in respect of their conduct of civil

139
[1969] 1 AC 191.
140
[1980] AC 198.
141
[1980] AC 198 at 214
142
[2000] 3 All ER 673
143
[2000] 3 All ER 673 at 701

352
proceedings, and, with some dissenting opinions, to hold that advocates should
no longer enjoy immunity from criminal proceedings.
144
6.212 However, in its recent decision in Moy v Pettman Smith (a firm) the
House of Lords has indicated that it will be difficult indeed for plaintiffs to make
out a negligence claim against barristers. Lord Hope referred to his judgment in
Hall v Simons145and reiterated that;
―….the measure of the advocate's duty to his client is that which
applies in every case where a departure from ordinary professional
practice is alleged, and that it could not be stressed too strongly that
a mere error of judgment on his part will not expose him to liability for
negligence.‖
6.213 The shift in jurisprudence that has occurred in the context of
immunity of advocates has been raised in many cases in support of a similar
change in the context of immunity ofr expert witnesses. The advantages and
disadvantages of such a reform will now be discussed.
(3) Expert Witness Immunity from Suit: Abolition or Retention?
6.214 Two alternative arguments can be made from the above analysis. On
the one hand that the argument in favour of the abolition, or at least curtailment,
of the immunity from suit as it applies to expert witnesses, has its strengths. On
the other, there are strong justifications operating in favour of its retention. The
appropriate course of action continues to be the focus of debate, and it can be
seen that there has been extensive judicial commentary arguing both
approaches.
(a) Abolition or Curtailment of the Immunity
6.215 In the wake of the abolition of immunity from suit for advocates, and
in the light of high profile cases of deception and negligence on the part of
expert witnesses leading to gross miscarriages of justice, there has been
increasing judicial and academic calls for similar reforms to take place in the
context of expert witnesses.146 It is argued that although the public policy
arguments underlying the immunity still remain important, more emphasis is
nowadays placed on a competing public policy argument, namely that every
wrong should have a remedy.

144
[2005] UKHL 7; [2005] 1 WLR 581,
145
[2000] 3 All ER 673
146
For a comprehensive summary of the major arguments supporting the abolition of
nd
the immunity see Hodgkinson & James Expert Evidence: Law and Practice (2
ed Sweet & Maxwell 2007) at 13-010

353
6.216 At the outset, it must be acknowledged that even in the above
mentioned decisions where immunity of expert witnesses was endorsed, the
judgments have all cautioned against extending the immunity and all
emphasised the need to ensure that it is limited to that which is necessary for
the effective administration of justice and the need to ensure that there is
appropriate justifications for its application. 147
6.217 One of the main public policy arguments supporting the immunity is
to ensure that witnesses are not deterred from coming forward to give evidence
out of a fear of litigation. However, it has been questioned if expert witnesses as
more likely to be deterred from giving evidence as lay witnesses, considering
they are professionals who are well reimbursed for their services in giving
evidence.
6.218 Other distinctions can also be made between experts and lay
witnesses which support the argument that they should be governed by different
principles and liabilities, such as the fact that experts have the ability to pick and
choose their cases and lay witnesses normally do not, and the fact that experts
are likely to be in a contractual arrangement with their instructing party.
6.219 Furthermore, experts are only likely to be dissuaded from acting as
expert witnesses if there were a flood of claims made against such expert
witnesses. As the definition of an expert requires them to be highly skilled and
knowledgeable in their area of expertise, it is unlikely – one would hope - that
there would be a large volume of cases where this skill and knowledge would
be found to be wanting. It could be further considered that the only ‗experts‘
likely to be dissuaded from acting are those who are charlatans or whose
expertise is questionable and thus imposing liability may have the positive effect
of improving the standard and calibre of expert evidence given across the
board.
6.220 However, given the wide range of subject areas in which expert
evidence can be given, it may be appropriate to impose different liability on
expert witnesses in different areas. For example, it may not be considered
appropriate to impose liability on court appointed experts appointed in family
law cases or cases involving the welfare of the child in order to ensure that such
experts are not deterred from giving full and frank evidence.
6.221 This was recognised in Stanton v Callaghan148 where Chadwick J
made the following comments;

147
See Clarke MR‘s judgment in General Medical Council v Meadow [2006] EWCA
Civ 1390 at [17] for a summary of judicial statements exemplifying the reluctance
to extend the immunity.
148
[1998] EWCA Civ 1176 (8 July 1998)

354
 ―There is, if I may say so, no difficulty in recognising the need for
immunity in relation to the investigation and preparation of evidence
in criminal proceedings - or in child abuse cases - in order to ensure
that potential witnesses are not deterred from coming forward. For
my part, however, I find it much more difficult to recognise an
immunity founded on the need to ensure that witnesses are not
deterred from giving evidence by the possibility of vexatious suits in a
case where the witness is a professional man who has agreed, for
reward, to give evidence in support of his opinion on matters within
his own expertise - a fortiori, where the immunity is relied upon to
protect the witness from suit by his own client, towards whom, prima
facie , he owes contractual duties to be careful in relation to the
advice which he gives.‖ 149
6.222 Chadwick J also cited with approval the comments of Tuckey QC in
Palmer v Durnford Ford 150 where he argued that;
―. . . I do not think that liability for failure to give careful advice to his
client should inhibit an expert from giving truthful and fair evidence in
court.‖151
6.223 Chadwick J went on to point out that in the context of negligence
claims, expert witnesses, as professionals, will be covered by an additional
safeguard than lay witnesses in that they will not be considered liable for
negligence unless it can be shown that their actions were those actions that no
reasonable professional acting in the field would have taken. He expressed the
view that the imposition of liability is unlikely to have a negative impact on the
numbers of experts willing to offer their services as expert witnesses;
―I find it difficult to believe that the pool of those who hold themselves
out as ready to act as expert witnesses in civil cases, on terms as to
remuneration which they must find acceptable, would dry up if expert
witnesses could be held liable to those by whom they are instructed
for failing to take proper care in reaching the opinions which they
advance. Indeed, I would find it a matter of some surprise if expert
witnesses offer their services at present on the basis that they cannot
be held liable if their advice is negligent.‖
6.224 Similar comments were made by Reid J in Karling v Purdue.152 Here,
although the defender was considered on the facts to be covered by the

149
[1998] EWCA Civ 1176 (8 July 1998)
150
[1992] 1 QB 483
151
[1992] 1 QB 483 at 488

355
immunity, Reid J went on to argue that there is a strong case to be made for the
abolition of the immunity, in civil cases at least, for all actions with the exception
of defamation. He reasoned:
―It seems to me that it will generally be easier to reach a conclusion
that a forensic expert is immune from suit where he is engaged in the
course of ongoing criminal proceedings; there is a relatively short
space of time between engagement and trial, the fact finding role will
usually mean that the expert and his client will have in view that the
expert will give evidence if his findings are favourable. In civil
proceedings, as the English authorities illustrate, the position will
often not be clear cut. Experts may be engaged before actions are
raised; their role may initially be restricted, and subsequently
broadened e.g. as to topic to report on, and as to function. Some
experts are particularly good at providing detailed background
information which can be used in cross examination, but are not
themselves skilled at giving evidence and explaining their position
simply and persuasively to the court. In civil proceedings many
permutations are possible where fine distinctions may have to be
made. These considerations support the argument that, in relation to
civil proceedings, the expert witness should no longer enjoy immunity
from suit, except in relation to defamation.‖
6.225 In the European Court of Human Rights decision Osman v United
153
Kingdom the court expressed serious dissatisfaction with the imposition of
blanket immunity.
6.226 In the wake of the incorporation into Irish law of the European
Convention of Human Rights,154 the possibility remains that the continued
operation of immunity in favour of expert witnesses could be considered to
breach the Right to a Fair Trial as guaranteed under Article 6 of the Convention.
(b) Retention of the Immunity
6.227 The above mentioned cases where the immunity has been
recognised all go into considerable detail about the public policy reasons that
have continuously led to a finding that the immunity is necessary.
6.228 Many cases have rejected the contention that the abolition of the
advocates‘ immunity provides support for the abolition of witness immunity

152
[2004] ScotCS 221
153
No. 23452/94 [1998] ECHR 101
154
Pursuant to the European Convention on Human Rights Act 2003 (No. 20 of
2003)

356
because an analogy can be made between the two groups. In Hall v Simons
Lord Hoffman explained this ‗witness analogy‘.
―No one can be sued in defamation for anything said in court. The
rule confers an absolute immunity which protects witnesses, lawyers
and the judge. The administration of justice requires that participants
in court proceedings should be able to speak freely without being
inhibited by the fear of being sued, even unsuccessfully, for what
they say. The immunity has also been extended to statements made
out of court in the course of preparing evidence to be given in court.
So it is said that a similar immunity against proceedings for
negligence is necessary to enable advocates to conduct the litigation
properly.‖
6.229 However he went on to reject this analogy outright;
―My Lords, with all respect to Lord Diplock, it seems to me that to
generalise the witness immunity in this way is illegitimate and
dangerous….. A witness owes no duty of care to anyone in respect of
the evidence he gives to the court. His only duty is to tell the truth.
There seems to me no analogy with the position of a lawyer who
owes a duty of care to his client.‖
6.230 Murphy J argues in O'Keeffe v Kilcullen & Ors,155 that rather than
reaffirming the abolition argument, this decision can be interpreted as rejecting
the argument as Lord Hoffman clearly explains why the two groups should be
considered under separate headings.
(c) Conclusions
6.231 Having considered the extensive case law in this area, the
Commission is inclined to the view that the present position should be retained
and that the traditional immunity from civil or criminal suit for expert witnesses
should be retained. In view of the differing views that are evident on this, the
Commission would welcome views on this matter.
6.232 The Commission invites submissions on whether the traditional
immunity from civil or criminal suit for expert witnesses should be retained.

E Alternative Remedies to Civil Suit

6.233 In the absence of any tortious liability being ascribed to experts for
their conduct whilst performing the role of expert witness, alternative ways to
sanction experts for wrongful conduct must be considered.

155
[2001] IEHC 17

357
6.234 However, it has been recognised that such alternatives are limited
and that expert witnesses appear to have a highly protected position within the
legal system. Immunity from suit for expert witnesses has been upheld, 156 and it
has been considered impermissible to allow complaints to be made to the
professional body of the expert in question. 157 Furthermore, it has been
acknowledged above that no approved expert witness body exists in Ireland to
which disgruntled solicitors, barristers and clients can have recourse.
6.235 However, there are a number of existing common law and statutory
remedies which may provide a disappointed litigant with a limited method of
redress against an expert who he believes has behaved wrongfully.
(1) Criminal Sanctions
(a) Perjury
6.236 The offence of perjury is a common law offence that provides that in
where a person makes a statement in court and under oath or affirmation that is
untrue and which they know to be untrue they can be convicted of the criminal
offence of perjury and given a fine or a penal sanction.
6.237 The crime is committed by any person lawfully sworn as a witness or
as an interpreter in a judicial proceeding who wilfully makes a statement,
material in that proceedings, which he knows to be false or does not believe to
be true.158 It is an indictable offence but, in certain circumstances, it may be
tried summarily under the Criminal Justice Act 1951, as amended by the
Criminal Procedure Act 1967.
6.238 In the context of expert witnesses this means that in, where an expert
gives an opinion in court which he does not truly believe, or where he makes
false claims which he supports by reference to his expertise, and is
subsequently revealed to have lied to the court, he can be convicted of the
offence of perjury. Furthermore, it has been held that where a person claims to
be an expert witness and gives evidence supported by this alleged expertise,
and their expertise later emerges to be fabricated, they will have lied under oath
thus perjuring themselves and this will give rise to a charge of perjury. 159

156
O'Keeffe v Kilcullen & Ors [2001] IEHC 17
157
MP v AP: John Connolly Applicant (Practice: In Camera) [1996] 1 IR 144
158
Law Reform Commission Report on Oaths and Affirmations LRC 34-1990 at 2.28
159
See; ―Fraudulent Forensic Expert Jailed‖ BBC News 22 February 2007 Available
at: http://news.bbc.co.uk/2/hi/uk_news/england/manchester/6386069.stm; See:
―Bogus Doctor Jailed for 10 Years‖ BBC News 26 January 2005 Available at:
http://news.bbc.co.uk/2/hi/uk_news/england/london/4209509.stm.

358
6.239 However, it is undeniable that, the very nature of the evidence that is
given by an expert – it being an ‗opinion‘ - makes proving the dishonesty of the
opinion almost impossible. False claims based on alleged expertise may be
easier to identify, however, where very difficult or technical issues are involved,
the lay judge and jury will inevitably struggle with detecting falsities and it may
depend on the testimony of an expert for the other party to challenge the
veracity of the evidence given.
6.240 Furthermore, it has already been acknowledged that in Fagan v
160
Burgess it was held that a witness in a civil action cannot be sued for perjury
as the witness immunity from suit extends to cover civil claims based on perjury.
6.241 As a result of these limitations, the prosecution of an expert witness
for the criminal offence of perjury is not likely to occur often. Indeed it has been
recognised that in reality, prosecutions of expert witnesses for perjury are
virtually unknown.161
6.242 In the context of civil proceedings, section 25 of the Civil Liability and
Courts Act 2004162 provides for a new offence of dishonestly giving false
evidence in personal injuries claims which is wider than the offence of perjury.
Section 25(2) specifically makes it an offence to give false evidence to a
solicitor or an expert. This implies that subsection (1) which makes it an offence
for ‗a person‘ to give false evidence should have wide application and thus it
can be implied that this would apply to experts who are considered to have
dishonestly given false evidence.
(b) Contempt of Court
6.243 Contempt of court is also a common law offence, that can be both
criminal and civil, and which can be tried summarily or on indictment. 163
6.244 As can be seen in Re N,164 where an expert witness fails to attend
court to answer questions and give evidence they can also be considered to be
in contempt of court in facie curiae165

160
[1998] IEHC 52
161
Dwyer ―The Effective Management of Bias in Civil Expert Evidence‖ (2007) 26
CJQ 57 at 73
162
No 31 of 2004
163
Law Reform Commission Report on Contempt of Court LRC 47-1994 at 3.7
164
[1999] EWCA Civ 1452 (20 May 1999)
165
Contempt in facie curiae consists of conduct which is so direct and immediate as
to be deemed to be ―in the personal knowledge of the court.‖ (Law Reform
Commission Consultation Paper on Contempt of Court LRC 47-1994 at 4

359
6.245 It has been held that impersonating an advocate can lead to a charge
of contempt in facie curiae,166 therefore by analogy; this could be used to argue
that falsely representing oneself as an expert in a particular area could lead to
similar charges.
6.246 In England, the Civil Procedure Rules Part 35.10 provides that the
expert report must comply with the provisions of the Practice Direction (PD35)
to Part 35. This provides that all expert reports must be verified by a statement
of truth. Part 2.5 of the Practice Direction further makes it clear that proceedings
for contempt of court can be brought where a person makes a false statement
in a document verified by a statement of truth without an honest belief in its
truth.167
(c) Perverting the Course of Justice
6.247 This is a common law offence which, in the case of expert witnesses,
would probably require that the expert had agreed with the instructing party or
counsel for the party, to make false or misleading statements, or suppress,
fabricate or destroy evidence.168
6.248 In February of this year, a man who falsely misrepresented himself
as a forensic psychologist in over 700 cases was convicted of 20 charges
including perverting the course of justice and perjury. 169
(2) Civil Sanctions
(a) Wasted Costs Orders
6.249 It has been held that it is permissible for a party to bring an action
against an expert whose breach of duty and misconduct has resulted in wasted

166
See In the Marriage of Slender (Mr. H and DM) 29 FLR 267 (Cited in Law Reform
Commission Consultation Paper on Contempt of Court LRC 47-1994 at 13)
167
This is provided in CPR r. 32.14
168
Dwyer ――The Effective Management of Bias in Civil Expert Evidence‖ (2007) 26
CJQ 57 at 73
169
See; ―Fraudulent Forensic Expert Jailed‖ BBC News 22 February 2007 Available
at: http://news.bbc.co.uk/2/hi/uk_news/england/manchester/6386069.stm;
―‗Bogus‘ Psychologist Admits Lying to Police‖ Manchester Evening News 7
February 2007 Available at;
http://www.manchestereveningnews.co.uk/news/s/235/235509_bogus_psychologi
st_admits_lying_to_police.html; Wilson ―The Trouble with Experts‖ The Guardian
25 February 2007 Available at:
http://commentisfree.guardian.co.uk/david_wilson/2007/02/bea_campbell_in_thes
e.html.

360
time and cost.170 In the English case Phillips v Symes & Zamar 171 the second
defendant was an expert witness whose evidence was rejected by the court
who found in favour of the plaintiff. The first defendant was declared bankrupt
which meant that the plaintiffs had little chance of recovering costs against him.
The court held that the plaintiffs were entitled to have the expert witness joined
in the costs proceedings.172
6.250 In the High Court, it was held that a third party costs order could be
made against an expert because, as a result of the way in which he gave his
evidence, which was in blatant disregard of his duties owed to the court,
significant costs were incurred. Smith J referred to the recognised immunity
from suit for witnesses but rejected that it should be applied to cover wasted
costs orders;
―It seems to me that I should approach the matter along the principles
(for example) set out in the Stanton case. Do expert witnesses need
immunity from a costs application against them as a furtherance of
the administration of justice? Alternatively, is it against the
administration of justice principles not to allow a costs application of
the type envisaged by the Administrators to be brought against Dr
Zamar?
In my judgment, that question should be looked at in the light of
modern developments of the law in relation to litigation. Thus, wasted
costs applications against advocates have been decoupled from the
immunity. The immunity has been destroyed as regards advocates.
In neither of those cases did the Courts accept submissions that the
immunity inhibited advocates fearlessly representing their clients.
Indeed they rejected them. As regards experts in Stanton the Court
of Appeal equally was dismissive of the belief that Experts would be
deterred from giving proper reports because of a potential action
against them.
It seems to me that in the administration of justice, especially, in spite
of the clearly defined duties now enshrined in CPR 35 and PD 35, it
would be quite wrong of the Court to remove from itself the power to
make a costs order in appropriate against an Expert who, by his

170
This is expressly acknowledged in Part 4.7 of the Civil Justice Council‘s Guidance
Protocol on Part 35 of the Civil Procedure Rules (Civil Justice Council ―Protocol
for the Instruction of Experts to Give Evidence in Civil Claims‖ (June 2005))
171
[2004] EWHC 2330 (Ch) (20 October 2004)
172
[2004] EWHC 1887 (Ch) (30 July 2004)

361
 evidence, causes significant expense to be incurred, and does so in
flagrant reckless disregard of his duties to the Court.‖ 173
(b) Withhold Payment
6.251 There is some authority for the proposition that evidence of
misconduct of an expert witness, such as professional negligence, could be
allowed as shield for a claim by the expert witness for unpaid fees. 174
6.252 Another possibility in this regard would be for the judge hearing a
case to have the power to limit or disallow the expert‘s fees if there were costs
wasted attributable to the expert. The CPR may already contain this power in
CPR 35.4 (4), although on the wording it is not clear that this power contained in
the CPR can be used retrospectively.
(c) Contempt of Court
6.253 Civil contempt arises where a person fails to follow a court order.
Therefore it may occur that where an expert witness has failed to carry out an
order of the court for example to make full disclosure of expert reports as
required under Statutory Instrument No. 391 of 1998 to the expert for the other
side, the expert may be convicted of civil contempt of court.

F Conclusion
6.254 The above shows the range of existing ways in which an expert
witness may be punished for failing to meet the required standard whilst giving
expert evidence. Some alternative or additional ways in which liability may be
imposed on an expert are also debated.
6.255 The Commission believes that reducing the likelihood of biased or
negligent experts and increasing the overall standard and quality of expert
evidence going before the courts is best achieved by the availability of sufficient
guidance and education for expert witnesses about their role and duties, and
the existence of appropriate punitive measures for dealing with experts that fail
in these duties.

173
[2004] EWHC 2330 (Ch) (20 October 2004) at [93]-[95]
174 nd
Hodgkinson & James Expert Evidence: Law and Practice (2 ed Sweet &
Maxwell 2007) at 13-011

362
7

CHAPTER 7 SUMMARY OF PROVISIONAL

RECOMMENDATIONS

7.01 The Commission‘s provisional recommendations in this Consultation

Paper may be summarised as follows.
7.02 The Commission provisionally recommends that further research be
conducted into the functioning of translators in our court system in order to
ascertain if reforms need to be taken to improve access to justice. [Paragraph
2.47]
7.03 The Commission provisionally recommends that the common
knowledge rule should not be abolished and that matters of common knowledge
should remain outside of the scope of matters on which expert testimony can be
given. [Paragraph 2.192]
7.04 The Commission provisionally recommends that the Ultimate Issue
rule should not be abolished and should have continued application as it does
not impose any excessive difficulties in practise. [Paragraph 2.242]
7.05 The Commission provisionally recommends that the Court should
continue to be entitled to allow expert evidence to inform and educate the judge
and or jury about the background to the ultimate issue where necessary, whilst
emphasising that the ultimate decision on such issues is for the court and not
the expert. [Paragraph 2.243]
7.06 The Commission provisionally recommends that experts should be
required, as far as possible, to distinguish clearly between matters of fact and
matters of opinion when giving their expert evidence both orally and in the
expert report. [Paragraph 2.252]
7.07 The Commission provisionally recommends that a reliability test
should be introduced as an additional requirement for admissibility of all expert
testimony. [Paragraph 2.383]
7.08 The Commission provisionally recommends the introduction of a
judicial guidance note outlining the factors that can be taken into account by the
trial judge when assessing whether the expert evidence in question meets the
requisite reliability threshold. [Paragraph 2.390]

363
7.09 The Commission provisionally recommends that the general
acceptance test, by focusing on the number of experts in the area that
recognise the theory, rather than assessing the subjective merits of the theory
itself, imposes too onerous a burden in terms of its provenance as opposed to
its content to be considered an appropriate test to determine the reliability of the
evidence. [Paragraph 2.394]
7.10 The Commission provisionally recommends the introduction of a
judicial guidance note outlining a non-exhaustive and non-binding list of factors,
based on empirical validation, which can be used to help the court assess the
reliability of tendered expert evidence. [Paragraph 2.400]
7.11 The Commission provisionally recommends that the court should
have the discretion to determine whether or not evidence that fails to satisfy the
reliability test should be excluded. The Commission also provisionally
recommends that where the extent of the reliability is uncertain, or where the
trial judge feels it appropriate or necessary, he or she can argue that the
evidence be admitted subject to a warning to the jury about its uncertain
reliability. [Paragraph 2.406]
7.12 The Commission invites submissions as to whether experience-only
based knowledge should suffice to be entitled to give expert evidence or
whether formal, professional qualifications, study or training is necessary.
[Paragraph 3.48]
7.13 The Commission provisionally recommends the adoption of a
definition of the term ―expert‖ for the purposes of giving expert testimony and
invites submissions on the form of wording that would be appropriate for such a
definition. [Paragraph 3.58]
7.14 The Commission invites submissions as to whether experience-only
based knowledge should suffice for a witness to be entitled to give expert
evidence or whether formal, professional qualifications, study or training is
necessary. [Paragraph 3.59]
7.15 The Commission provisionally recommends that a person seeking to
act as an expert witness need not be actively involved in the field of expertise at
the time of the giving of expert evidence. [Paragraph 3.60]
7.16 The Commission provisionally recommends that, when assessing the
competency of an individual to be considered an expert, considerable account
be taken of the length of time they have spent studying or practising in the
particular area, as well as, in the case of retired people and others no longer
practising, the length of time they have spent away from the field. [Paragraph
3.61]

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7.17 The Commission provisionally recommends that a formal guidance
code for expert witnesses, based on the principles set down in the English case
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The
Ikerian Reefer)1 should be developed which would outline the duties owed by
expert witnesses and which would be made available to all persons seeking to
act as expert witnesses. The Commission invites submissions on the form,
statutory or non-statutory, this guidance should take and whether all the specific
duties identified in The Ikerian Reefer should be adopted. [Paragraph 3.246]
7.18 The Commission provisionally recommends that there should not be
a prohibition on treating therapists acting as expert witnesses. [Paragraph 4.28]
7.19 The Commission provisionally recommends that there should not be
a prohibition on the giving of evidence by experts who have a pre-existing
relationship with one of the parties to an action. [Paragraph 4.132]
7.20 The Commission provisionally recommends that an expert witness
should be obliged to disclose the existence of any pre-existing relationship with
a party to a case or any other potential conflict of interest. [Paragraph 4.133]
7.21 The Commission also provisionally recommends that the court
should be encouraged as far as possible to limit the amount of time spent by an
expert witness in court to that which is reasonably necessary to give their expert
evidence. [Paragraph 4.134]
7.22 The Commission provisionally recommends that there should be no
change to the overriding duty owed by the expert witness to the court. The
Commission also provisionally recommends that the expert witness should
continue to owe a duty to the court which supersedes any duty owed to the
instructing party. [Paragraph 4.136]
7.23 The Commission invites submissions on whether there should be a
general requirement that court permission is expressly required before a party
can adduce expert evidence. [Paragraph 5.41]
7.24 The Commission provisionally recommends that determination of the
admissibility of expert evidence and expert witnesses should continue to take
place during the trial process but that the court should have discretion to order
pre-trial determination where this is likely to have a significant impact on the
length and costs of a trial. [Paragraph 5.52]
7.25 The Commission provisionally recommends that parties to litigation
should formally agree terms of engagement in writing from the outset with
expert witnesses instructed by them, and that this requirement could be
included as part of a draft code of guidance for expert witnesses and their

1
[1993] 2 Lloyd‘s Rep 68.

365
instructing parties. The Commission also provisionally recommends that any
such guide should set out the specific issues which should be agreed, that this
should be a non-exhaustive list. The Commission invites submissions on what
should be included in such guide, particularly in the context of individuals not
accustomed to the giving of expert testimony. [Paragraph 5.62]
7.26 The Commission provisionally recommends the inclusion in any
guidance of a provision recommending that full information be given by the
instructing party to expert witnesses throughout the extent of their appointment
by the party, in particular concerning procedural requirements, which should not
prejudice the manner in which the expert witness prepares his or her evidence
for court. [Paragraph 5.73]
7.27 The Commission provisionally recommends that there should be an
express provision prohibiting fee arrangements with expert witnesses which are
conditional on the outcome of a case, as such arrangements are likely to
impede the independence of the expert witness. [Paragraph 5.95]
7.28 The Commission provisionally recommends that it would be
appropriate for the court and the parties to be empowered to encourage pre-trial
meetings between experts, and invites submissions on the form or forms this
might take. [Paragraph 5.116]
7.29 The Commission provisionally recommends that both parties be
required to answer questions about the contents of their expert reports prior to
the trial when these are put by the other party. [Paragraph 5.120]
7.30 The Commission invites submissions on whether it would be
appropriate for an expert witness to put a request to the court for information
about issues relating to how he or she can satisfactorily fulfil their role and
duties as an expert witness where they feel they have not received sufficient
information from those instructing them. [Paragraph 5.125]
7.31 The Commission invites submissions as to whether the court should
be empowered to order that a party disclose all necessary information to the
other party where this is not forthcoming and where needed in order to create a
comprehensive expert report. [Paragraph 5.138]
7.32 The Commission invites submissions on whether it would be
appropriate to recommend the extension of a requirement to exchange expert
reports, currently confined to personal injuries actions, to all categories of civil
claims. [Paragraph 5.175]
7.33 The Commission provisionally recommends that there should be a
set form and structure for expert reports, which might include the following
elements:

366
 The report must be addressed to the court and not to the party or
parties from whom instructions have been received.
The expert‘s qualifications and experience should be outlined in detail
and relevant certificates of proof attached.
The terms and conditions of the appointment of the expert witness
including the payment arrangements should be explained.
All material instructions, oral and written, which were given to the
expert, and on the basis of which the report was written must be
outlined.
If a potential conflict of interest arises, the facts relating to this should
be stated.
All relevant information relating to the issue, including that which is
capable of detracting from the expert‘s opinion, should be outlined.
All materials used by the expert in coming to the opinion, clearly
distinguishing between matters of fact and matters of opinion.
Where tests or experiments have been conducted in the course of
creating the report all related information must be included such as
methodologies, results and details about the individuals and
qualifications of those involved in the carrying out of these tests.
The expert should indicate if the opinion is provisional or conditional on
certain factors, or if they believe they cannot give a formal opinion on
the issue without further information, or where they believe they cannot
make an opinion without qualification.
A signed declaration that the contents of the report are true and that
the expert understands the overriding duty owed to the court and that
the report has been created in compliance with this.
If, subsequent to the completion of a report, an expert changes his or
opinion on any material issue in the report, the expert witness must
state this in a supplementary report. [Paragraph 5.202]
7.34 The Commission invites submissions on whether parties could be
facilitated to decide jointly on an appropriate expert to be appointed, rather than
having a single expert being imposed by the court. [Paragraph 5.299]
7.35 The Commission welcomes submissions on whether panels of
experts or mixed panels should be used in certain types of cases. [Paragraph
5.310]
7.36 The Commission provisionally recommends that current voluntary
arrangements for training of expert witnesses, in which appropriate

367
familiarisation training for experts is given, should continue, and that a
mandatory system should not be introduced. [Paragraph 6.62]
7.37 The Commission provisionally recommends that a mandatory
regulatory body for expert witnesses should not be introduced. [Paragraph
6.88]
7.38 The Commission provisionally recommends that the relevant
professional bodies should be encouraged to introduce their own regulatory and
disciplinary processes for professionals who wish to act as expert witnesses.
[Paragraph 6.110]
7.39 The Commission provisionally recommends that the immunity from
suit for expert witnesses should not be extended to cover disciplinary
proceedings from professional bodies. [Paragraph 6.142]
7.40 The Commission invites submissions on whether the traditional
immunity from civil or criminal suit for expert witnesses should be retained.
[Paragraph 6.232]

368
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