What is a Witness?
A witness is a person giving sworn evidence to a tribunal or court of law. There are basically two types of
- Witnesses of Fact who may give evidence of fact but may not normally give opinions;
- Expert Witnesses who may give opinion evidence within their expertise and in addition evidence of facts.
The Academy provides a source of accredited Expert Witnesses who are governed by codes of practice and guidance backed up by disciplinary procedures.
What is an Expert Witness?
An Expert Witness can be anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman. The Expert Witness’s duty is to give to the Court or tribunal an impartial opinion on particular aspects of matters within his expertise which are in dispute.
The Court must give permission for an Expert Witness to give evidence.
An Expert Witness is not an expert adviser who is normally appointed by a party to assist in the formulation and preparation of a party's claim or defence. An expert adviser does not have an overriding duty to the court but to the party instructing him.
An Expert Witness will
- Provide an independent expert opinion in their area of expertise on the subject matter in accordance with the instructions they are given. These instructions will be shown in the Expert Witness’s Report which will be seen by the other side and the Court.
- Provide the opinion in the form of a report [and/or evidence before a Court (or other tribunal)] as required].The report is required as it is not usually possible for the Expert to give evidence without it.
- Ensure the Expert’s Report provided to you contains the information required by the Court Rules. If you proceed you will have to give a copy of the report to the other side in the dispute. At that time a copy of the other side’s Expert’s Report will be given to you.
- Comply with the specific procedure rules applicable and any Court or tribunal Orders in the case.
- Provide truthful, impartial and independent opinions whether or not these opinions favour your case.
An expert witness has an overriding duty to the Court (or other tribunal). This duty supersedes any duty owed to you even though you are still responsible for paying the expert’s fees.
The Court expects an expert witness to be independent and impartial and will discount the evidence of one who is or is seen to be partisan.
An Expert Witness will not
- Be your advocate and argue your case, nor will they find evidence or suggest what your case should consist of It is for you or your legal representatives to advocate your case.
- Provide any opinion beyond their specific area of expertise.
- Provide advice.
- Accept any appointment which involves a conflict of interest (unless resolvable by disclosure).
- Accept any appointment on terms that are conditional on the outcome of the case. Examples of these are success fees or conditional fee arrangements (any form of payment linked to the results of the Case). Conditional terms are incompatible with the expert being seen to be independent.
- Act as a negotiator.
You must (yourself or through your legal representatives)
- Agree contractual terms with the expert in writing before the work is started. These will include terms of payment. Many experts use standard terms such as The Academy of Experts ‘Model Terms of Engagement For The Employment of Experts.’
- Provide detailed instructions.
- Keep the expert informed of developments in the case and of all key dates in good time.
It is better that the legal representative, if you have one, deals with the Expert rather than you doing so.