 |  |
|
 |
 |
 |
 |
|  | |  | |
20.3
The effect of Proposal 38 and the Working Party's view
It will be evident from the foregoing discussion that the court already enjoys
considerable powers to exclude inappropriate or excessive use of expert evidence. If
the evidence sought to be adduced involves subject-matter not properly susceptible to
expert evidence, or if the witness is not qualified as an expert in the field, or if the
evidence is not relevant, it may be excluded as inadmissible. If a party is inclined to
call a string of experts where this is not justified, O 38 r 4 allows the court to restrict
him to the appropriate number. Parties are not permitted to adduce expert evidence
unless its substance has first been the subject of pre-trial disclosure. The existing rules
are therefore quite apt to filter out expert evidence which is inappropriate or excessive.
The problem appears to be that the existing rules are not sufficiently invoked by the
parties or applied by the courts.
If the existing rules were to be applied more assiduously, it is difficult to see what
useful role there would be for a general discretionary power to exclude expert
evidence in respect of evidence which has not been excluded under the present rules.
Such evidence would have met the qualifying and relevance conditions and would be
tendered by a duly limited number of experts, the gist of whose evidence has
previously been disclosed to the other parties. In what circumstances would one wish
to exclude some or all of such evidence It is possible that one may be faced with
experts on either side who (although duly limited in number) file expert reports which
are too numerous and too elaborate, thereby vastly over-complicating the issues.
However, the court has various means available for coping with such a case. It could,
for instance, require the evidence to be simplified, ordering the experts to meet
pursuant to O 38 r 38, with a view to identifying areas of common ground and
isolating the issues on which they differ. Costs sanctions for unnecessarily elaborate
reports could be applied. Indeed, if the expert evidence were to become so over-
complicated that it hindered rather than helped the court, it would run the risk of being
held inadmissible as irrelevant, in that it was not helpful to the court's decision of the
issues in the case. As with factual evidence, the relevance of expert evidence should
be regarded as a matter of degree.
|
 |
|