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Using Expert Evidence in the Small Claims Court

By: Louise Smith, barrister - Updated: 21 Nov 2017 | comments*Discuss
 
Using Expert Evidence In The Small Claims Court

If an individual gives evidence at court they can usual only state things which they know, or believe, to be true. They are not permitted to give their opinion. The only exception to this is when an “expert” is asked to comment on some aspect of a case.

Expert Evidence Generally

The use of expert evidence in the civil courts is governed by Part 35 of the Civil Procedure Rules. This Rule emphasises the necessity that experts remain independent and use their expertise to help the court decide the case. They should not tailor their views to support the case of any one party. Experts may be asked to comment on the whole case or just on specific aspects of it.

Format of Expert Evidence

An expert’s report for use in trials, other than those held in the small claims court, is a lengthy and formal document which must be in a prescribed form. Amongst other things the report must contain a detailed list of the expert’s qualifications, a statement of truth and a statement to the effect that the expert understands that his overriding duty is to the court.

Single Joint Experts

Courts are keen to control the amount, and type, of expert evidence given. Instructing experts can be an expensive and protracted business. One way the courts can keep control over expert evidence is by ordering parties to share an expert – especially in relatively straightforward cases. A shared expert is known as a single joint expert.

If more than one party wishes to rely on expert evidence the court may order all the parties to instruct one expert who can provide the evidence that the parties need. Because the expert’s overriding duty is to assist the court – not the individual who has instructed them – there should be no reason why one expert cannot assist both parties. Initially the parties should try to agree on an expert to instruct – if they cannot agree the court will help them to reach a decision.

Expert Evidence in Small Claims Trials

In most small claims cases there will be little need for expert evidence. In deciding whether a case is appropriate for the small claims track the court will have taken into account both the financial value of the case and its complexity. The necessity for expert evidence could be an indication that the case is not suitable for the small claims court.

The rules on small claims cases state that no expert evidence of any kind can be used at a small claims trial unless the court has been asked for permission in advance. Although many of the general rules on evidence do not apply to the small claims court some of the rules, relating specifically to the use of expert evidence, do:

  • Only expert evidence which is reasonably required to resolve the case can be used;
  • The expert’s overriding duty is to assist the court on issues that come within his field of expertise. This duty takes precedence to any duty or obligation he may have to the party or parties who instructed or paid him.
  • If a single joint expert is used, he must be instructed in accordance with Part 35 of the CPR.
If expert evidence is required in a small claims case the court will almost certainly give special directions so that the parties know how to go about finding and instructing an expert.

Format of Expert Evidence in the Small Claims Court

In the small claims court the expert’s report can be relatively informal – the idea is that parties can use local people with expertise rather than having to rely on “professional” experts who regularly give evidence and are likely to be more expensive. The local expert can give straightforward information to assist the court even if not adept at producing a perfect, formal report.

It is probable that, in the small claims court, the expert would not be required to attend the hearing as this would only add to the costs incurred. Courts can adopt a flexible approach to the trial and it will be up to the individual judge when and how he uses an expert’s report.

The Costs of Experts in the Small Claims Court

It is almost always up to the court whether or not to award costs. However, in the small claims court the amount of costs recoverable is specifically limited. The maximum that a victorious party will be able to recover by way of costs in respect of an expert’s fees will be £200 for each expert used.

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I am the claimant in a consumer case fast track no council DIY jobbie the SJE with undertake the inspection in december how important to a case is the content of that report?
nochance - 21-Nov-17 @ 1:52 PM
I have been taken to small claims and I am appalled that the judge ruled in favour of the claimant despite not having one shred of evidence to support her claim at all?No proof.... just to witnesses who where the ones who actually caused the problem.Not surprising they jumped at the chance to be her witnesses... They had an invested interest in doing so.She she should have been claiming from them not ourselves. We had clear evidence that stated one of the amounts claimed for was actually for something else on their quotation yet the judge awarded this to her for her specific request regardless??? (it was clearly quoted on our bill and was for a specific for it's use and moment in time on her event which was nothing to do with her claim.The hire charge was for part of the event that took place 4 -5 hours earlier. The couple changed the agreed event order on the evening by changing the room layout only a few minutes before guests and performers were about to use our facilitates.This contributed to the problem which occurred with trades the couple engaged as it took our employees away from duties of directing them with the set up (although one had done a pre-site visit). The performers did not wait until we were available to them and set up regardless.Later the equipment tripped a fuse. The performers lied in court about sockets used and claimed power was lost in our building when just a simple fuse.They claimed power was lost for one and a half hours.The fuse itself took minutes to replace. However dealing with guest who tried to fix the fuses themselves (6 according to the claimant) the judge totally ignored.Did he not think our time would have been occupied by stopping intoxicated guest from messing with commercial electrics? On top of all this we had had approximately 50 to 70 guest arrive more than the couple had agreed with us. For the privilege of providing this couple with a lovely day and food for additional guestswe have been ordered to pay over £1,700. The lady even bought in evidence that was nothing to do with this case that on first sight could be damming to my temperament to anyone not knowing the context of the account. I am complacently disgusted.
No faith in our laws - 8-Apr-17 @ 2:18 PM
I've just been to my court hearing where I was the claimaint. It was dismissed as the judge would not let my expert witness speak after the defendant solicitor disapproved to allow him to speak. He then told me he should have had a statement from the expert witness which he never informed me at any time this was needed. What can I do now?
Lambie - 2-Dec-16 @ 9:43 PM
I am involved in a Small Claims case relating to an accessory fitted to my motor caravan, contract value approximately £3k and a required modification given that I live in the London Low Emission Zone. Despite the technical complexities, MCOL Northampton allocated the matter to the Small Claims track. The Court Mediation Service gave up on the matter for want of the two Joint Defendants both making themselves available on any single date in a seven month time span. As a result the case was sent for trial at my local County Court. The District Judge seemed to be "out of her comfort zone" as regards automotive technology and ordered the appointment of a Joint Specialist Witness. The joint defendants ignored my correspondence regarding both agreed draft instructions and the search for a suitable specialist, instead 'bouncing' their suggestions on me 2h45m before the start of the Directions Appointment at which both the appointment and list of questions were meant to be agreed. The Deputy District Judge presiding over the Directions Appointment threw out the Defendant's choice of specialist, stating that it was bad practice to choose someone within the same trade as themselves. My proposal of an academic was accepted, but his fee is £155/hour. The Court Order establishes "Joint and Several Liability" for the expert's fee. All parties act as Litigant in Person. Two problems: [1] The specialist has been waiting nearly 3 weeks for instructions from the Defendants but has heard nothing. What procedural situation arises if one or both the Defendants simply decline to deal with the academic specialist appointed? The specialist has just stated that he cannot comply with the reporting deadline unless he is instructed within the next 60 hours.[2] My instructions have been criticised by the specialist on the grounds of them being a "Shopping List"of points designed to make my case. If not that, then what else, given the need for simplicity in order to minimise costs? I don't see it as part of my obligation to prove WHY the accessory doesn't work, just the FACT that it doesn't. The grey area is the defence put forward that the failure is a problem of my making - specifically, an assertion that I do not 'thrash' the engine enough to raise the exhaust gas temperature sufficiently to make the device commence its cleaning cycle. Where does the burden of proof of that assertion rest?
CE - 15-Dec-15 @ 11:03 AM
what happens if i use written evidence that I haven't asked the court for permission to use? The reason for this is that I have just got a written report from an expertand I only have 2 weeks to send my bundle to the court and the other party. I have written for permission to use this but it will cost a fee of £155 which I just don't have. What will happen if i include it with my bundle and the other party when I send it? Will the judge just ignore it or take it out or will I be in trouble for including it? PLEASE HELP Thanks Dave
dave - 26-Aug-15 @ 12:38 PM
I am due in small claims court soon against a defendant who has defrauded me. I had an Expert report and advice done based on the defendants vehicle report and questions I had for the expert.This expert advise found them in multiple breach of the the Goods and Services act and was done under the Part 35 regulation.The thing is I was not aware I needed to get the courts permission to commission a report myself to present expert advise evidence at a directions hearing. What can I do if the court rejects the Expert advice and report? The information is vital to the directions hearing.
P930 - 7-Oct-14 @ 3:30 PM
I was advised to just pay up having been led a merry dance by a double glazing company it would be far cheaper and less stressful as it was alleged it was a well honed game as that is what most people do. I was advised I had a very strong case one could walk, I had been threatened and intimidated by the company demanding full payment when it was not due until satisfactory completion of contract. The problems that were identified kept mounting, I tried a Fenestration engineer who was annoyed I had been to building control and put in breach of regulations, came back again then wanted to come another time I realised why when I got their evidential log his name was there gone behind my back and when a best list was eventually compiled and the company was notified they smacked proceedings against me. I would not ever go into a small claims court again nor would I recommend anyone else to, it shocked me to the core and made me ashamed to be British.If that is what the system has come down to it is a sad reflection of Justice, the opposition lied to the judge, I interrupted his summing up and asked if he would hold his findings over until such times as he could substantiate the truth.This powerful company were "the experts of all knowledge and I had listened to too many opinions"it was found a lethal window was legal and did not breach building regulations to my cost. I was under the opinion that the building act and all of its parts were sacrosanct enshrined in British law for the safety and protection of the public, which only parliament could change for that very reason.So can a Judge sitting in his small claims court completely absolve a perpetrator of a serious 'life endangering breach' when he has been explicitly told of two expert 'Gas accredited' companies opinions??The court was given 2 witness statements neither of which carried any weight, its crazy when a window is placed with the opening less than the legal limit from the balanced flue outlet and Carbon monoxide the silent killer can unrestrictedly flow in. Arguably it reasonably should have rung alarm bells under a duty of care to the publicand it begs the question how many more people are at risk, or have been informed it is perfectly legal? I have reviewed the other evidence and it looks suspect, I have the highest integrity documents now from the estate agents showing the window in the legal position, lying to a judge is okay then even if it is a danger to life perhaps it is a new euthanasia policy? Where I go from here I don't know it costs money to replace it out of my purse, building control say they will prosecute me for allowing the installation to be put in and I am advised against appealing, as I might just get the same sort of rough justice which I cannot afford.Not allowed to speak, with a young Barrister who can never be expected to answer or understand technicalities.One can play hunt the screw fixings in the high upstairs windows because there are so ver
stupid - 21-May-14 @ 8:48 PM
If a claimant has taken you to the small claims court, stating that he is suing you under the trade description act but the act does not apply to you, can the judge still allow the claim to go ahead.
feroes - 28-Apr-14 @ 1:31 PM
I was the claimant in a small claims court where the defendant and I had a jointly appointed expert witness - I say jointly appointed but he was the Defendants Choice not mine. It became apparent that the Defendent and Expert Witness were friends by the nature of their conversations in e mails and the attitude of the Expert Witness in his reports. He produced a statement that claimed a vital swab taken was contaminated - on later questioning he admitted there was no evidence of contamination, admitted the presence of an infection, and confirmed it was probably present at the time of sale. Despite this he did not amend his original statement to reflect this crucial evidence, and filed it as it was with the court. I had written to the court on a number of occasions regarding the obvious bias of the Expert Witness and even mentioned it to the Judge at a Directions hearing. Nobody was interested or offered any advice re procedures. I was told by a solicitor that in order to show bias I had to prove how the evidence had been distorted beyond reasonable thinking , which was easy to do with his attempt to discredit the swab results with unfounded statements of contamination, However in court I was not allowed to refer to the (previously presented) e mails between the Defendant & The Expert Witness - I was told I had to apply for a 'special order' ?? if I was questioning the bias of the Expert Witness in court. Despite the evidence of the questions he had answered confirming the swab was not contaminated and that infection was present, because the Expert's statement had not been amended to reflect this, the Judge would not take the answers( that clearly contradicted the report ) into account, the Defendants Barrister saying the Expert would have changed his report if it was important, and that it was my fault for not getting him to change the report ! This piece of evidence was the most crucial part of the case. Additionally, despite all my written and verbal complaints about the Expert witness, neither the Judge at the Directions Hearing or the Court Manager (to whom my letter were addressed) told me I would need to apply for the 'special order' I needed to provide evidence of the bias of the witness. I feel badly let down by the legal system - is there anything I can do ?
Jane - 30-Mar-13 @ 12:54 PM
After two days of hearing on 15 April 2010 the Judge asked for final submissions and statements. He then made his judgement and announced that he awarded the case to me and began to work out compensation. The opposition asked for a recess and then requested that I accompany their solicitor out of court (self representing). The solicitor then held a letter for me to read (from a third party company) this contained hatred slander and libel and was extremely offensive and I objected to its production in court. I have never met the author and had not seen this letter until then. Back in court the company representative whom had remained in court had, by the shocked look on the judges face, submitted further "evidence" that I had not been the recipient of prior to,during or after the hearing. The judge informed me that I was not allowed to make any further comment and on summission of the letter he reversed his decision and awarded against me. I have been unable to obtain the letter or the secret "evidence" which I assume was as offensive and fabricated to pervert justice. Is there any way that I can expose this criminal event. Thanks Anthony
firecheckone - 2-Feb-13 @ 8:52 PM
My solicitors have omitted some of the documentary evidence I rely on with my Witness Statement. Can this still be submitted some way, or is there a time limit for submitting it before the trial.
Lyn - 15-Feb-12 @ 10:28 AM
Why on Earth cannot Government legal advice websites be clear and straightforward as this one is? I'd like to think it's because they have some higher goal such as impartiality but I regretfully suspect it's just lack of true competence?!
DonC - 28-Oct-11 @ 12:59 PM
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