Abstract:
The practice governing the adduction and presentation of expert evidence has come under increasing scrutiny in recent years. Bias, untruthfulness, disproportionate and excessive costs, party manipulation, delays and obfuscation of issues are some of the problems which the courts and litigants have had to endure as a consequence of the adversarial nature of civil proceedings. The purpose of this article is to examine these concerns and propose measures which would improve the legal infrastructure. In particular, more extensive judicial involvement in controlling the use of expert evidence through comprehensive pre-trial case management and at trial is advocated. It is also proposed that experts should be jointly instructed by the parties unless the circumstances of the case require the parties to appoint their own experts. This scheme would be complimented by a more enhanced role for the “court expert”, whose appointment would not depend on the consensus of the parties. Further, it will be shown that the legal admissibility of expert evidence is not the only criterion for its reception. Ultimately, the court must exercise its discretion in determining whether expert evidence (whatever form it takes) is justified by the circumstances of the case (primarily, the principle of proportionality must be adhered to). The proposals are summarised in the final two paragraphs of this article.