How To Give Evidence Internationally

Posted on 13/11/2016 · Posted in Expert Information, Expert Witness, Financial Litigation

A presentation by Dr Thomas Walford

Most countries have their own rules about how court proceedings should be conducted. The establishment of a framework for dispute resolution has made it possible for two parties to present their cases, and the available evidence to a judge or jury, for a decision to be reached that is seen as fair and reasonable. These basic premises are true of the common, civil and criminal law systems.

The role of the expert witness is to uphold the known principles of their discipline and, with a duty to the court, present their opinions in a balanced, truthful, unbiased and independent way both in writing and in person

Whilst legal paperwork has a format of its own, in court an expert must adhere to a certain code of conduct. Dr Walford, in a lecture given at the Institution of Chartered Accountants of England and Wales’ “(‘ICAEW’)” Forensic and Expert Witness Conference, on Tuesday 8 November 2016 outlined seven principles that an expert must uphold in court. In the lecture he focused on the rules in various international courts and also the world accepted principles of the Ikarian Reefer. These were expounded by Mr. Justice Cresswell in National Justice Compania Naviera SA v Prudential Assurance Company Limited in 1993 and have remained a founding principle for the activities of experts when involved in the litigation process. The seven principles are as follows:

  • Expert evidence presented to 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
  • An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate
  • 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
  • An expert witness should make it clear when a particular question or issue falls outside his expertise
  • If an expert’s opinion is not properly researched because he considers that insufficient data are available, then this must be stated with an indication that the opinion is no more than provisional. In cases where an expert witness who has prepared a report could not assert that his or her report contained [the whole truth] without some qualification, that qualification should be stated in the report
  • 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 a change of view should be communicated (through legal representatives) to the other side without delay to the court
  • 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

However given the different rules around the world’s courts, although the principles may use the same framework the rules by which they must abide can be very different.

Cross-examination is the greatest legal engine ever invented for the discovery of truth.”
John Henry Wigmore

These rules have been updated by a more recent court case Kennedy v Cordia where judgement was passed down in 2016 and extended the principles to the expert needing to be able to assist the court, the expert needing to demonstrate the knowledge and expertise and there needing to be a reliable body of knowledge for the expert to follow.

Many major countries have developed their own rules since then and some of the most comprehensive are to be found in the United Kingdom and covered by Civil Procedure Rules 35 and the practice direction and guidance that goes with it. Not only do countries have their own rules, on occasion so too do individual judges for their courts. One of these judges was cited in the lecture. This was the example of Judge William Alsup who has stipulated that at trial, the direct testimony of experts will be limited to the matters disclosed in their reports and that new matters may not be added onto direct examination. The immunity afforded to experts is another area in which the expert’s power may differ across continents. The most noticeable is difference between the UK and Singapore. In the UK in cases of negligence, an expert’s opinion may be contested, however in Singapore, generally speaking, expert immunity still exists. That said it is expected that in the appropriate circumstances a judge may override this position and follow a similar stance to the UK.

In the lecture, Dr Walford concentrated on the UK, Ikarian Reefer, EU and Singaporean rules as an illustration of the different requirements and also provided information on the sources to search for information on the international requirements that exist. These rules and requirements will be especially important for medics, engineering and financial experts where the same principles tend to exist globally.

Useful Links: International Expert Witness Rules – a summary and Supreme Court Judgement in Kennedy v Cordia [2016] UKSC 6.

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.