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• 24 Jul 2024

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  Too fact specific, I can't generalise.:

  Since your hearing has been adjourned, it is challenging for me to comment in what is essentially a public forum. However, I would like to offer some general observations about expert reports and witness statements that I believe are useful:

  General Points on Expected Standards

   

  Overriding duty to the court

  (1) It is, of course, the duty of an expert to help the court on all matters within the expertise of the expert. This duty is paramount and overrides any obligation to the person from whom instructions have been received.

   

  (2) Expert evidence should, of course, be the independent product of the expert uninfluenced by the pressures of litigation to assist the court in providing objective, unbiased opinion on matters within the expertise of the expert and without assuming the role of an advocate. An expert should consider all material facts, including those which might detract from the opinion, and should make it clear:

   

  (a) When a question or issue falls outside the expert’s expertise; and

  (b) When the expert is not able to reach a definitive opinion, for example because of insufficient information.

   

  (3) If, after producing a report, an expert has a change of view on any material matter, that change of view should be communicated without delay.

   

  (4) The report should usually be addressed to the court, in this case First-tier Tribunal (Special Educational Needs and Disability).

   

  (5) The court should be made aware of any possible conflict of interest by production of a current CV giving details of any employment or activity raising a possible conflict (and if you think there may be such a conflict we would appreciate details at the outset).

   

  (6) Failure to comply with these duties may result in the court debarring our client from relying on the evidence.

   

  Form and content of experts’ reports

  (1) Details of qualifications should be given.

   

  (2) Details of any literature or other material relied on in making the report should be given.

   

  (3) There should be a statement setting out in summary the substance of all material instructions, whether written or oral, and that statement should summarise the facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based. Please note that these instructions, though not privileged, do not have to be disclosed, unless the court so orders. Accordingly, these instructions can be referred to in the report but should not be attached or exhibited to it.

   

  (4) The report should make clear which of the facts stated are within the expert’s own knowledge.

   

  (5) Anyone who carried out a test or experiment used for the report should be identified and the report should confirm whether or not the test or experiment was carried out under the expert’s supervision.

   

  (6) The qualifications of the person who carried out any such test or experiment should be given.

   

  (7) Where there is a range of opinion on the matters dealt with in the report, the expert should:

   

  (a) Summarise the range of opinion; and

  (b) Give reasons for the expert’s own opinion.

   

  (8) There should be a summary of the conclusions reached.

   

  (9) There should be a statement that the expert understands the duty to the court, has complied with that duty and will continue to comply with that duty.

   

  (10) The report must be verified by a statement of truth, as well as containing the statements referred to in the preceding sub-paragraphs. The form of the statement of truth is:

   

  “I understand that my overriding duty is to assist the tribunal in matters within my expertise, and that this duty overrides any obligation to those instructing me or their clients. I confirm I have complied with that duty and will continue to do so”

   

  “I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete opinions on the matters to which they refer.”

  Non-compliance with Expected Standards

  Regarding reports or witness statements, if they do not comply with established standards, it is reasonable to consider challenging their validity. Compliance with these standards can often be viewed as a requirement therefore noncompliance requires the intervention of the Tribunal .

  Late Evidence

  Evidence presented "at the door of the court" should be scrutinised, particularly in terms of whether the document could have been submitted earlier in accordance with any existing directions and the relevance of the evidence therein.

  I hope you understand why I cannot comment directly on your case. However, if you have a representative, you should discuss these issues with them. Of course I look forward to reading the views of others. 

  Sean Kennedy.

  

  Sean Kennedy
  Talem Law

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