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Justifying appointment of an Expert Witness

An Expert Witness has to add something that a judge or jury couldn’t know without the expert’s guidance: they have to add value. There are no limitations on the right to obtain expert evidence in any case, but you won’t be able to rely on the opinion of the Expert Witness if the judge doesn’t think an expert’s view is required.

You should ensure that you take into consideration the specific rules governing the appointment of an Expert Witness depending on the type of case that you are dealing with. 

Key examples of this include:

  • England and Wales, Civil Courts – Civil Procedure Rules, Part 35, PD 35, CJC Guidance for the Instruction of Experts in Civil Cases
  • England and Wales, Criminal Courts – Criminal Procedure Rules, Part 19, PD 7 and in prosecution cases Crown Prosecution Service Expert Evidence
  • England and Wales, Family Courts – Family Procedure Rules Part 25, PD 25 A – G including at PD 25B Annex 1 the Standards for Expert Witnesses in Children Proceedings in the Family Courts and also the President’s Memorandum: Experts in the Family Court. For those appointing Psychologists, please also see the Pritish Psychological Society and Family Justice Council’s Guidance on the use of Psychologists as Expert Witnesses in the Family Courts in England and Wales
  • Scotland –  There are no specific rules, however, the Law Society has a code of practice for Expert Witnesses which identify a number of requirements for solicitors.
  • Northern Ireland – Magistrates’ Courts Rules, County Court Rules, Family Proceedings Rules, Crown Court Rules, and Rules of the Court of Judicature  which were all updated in 2021 and can be accessed via Northern Ireland's Department of Justice website.
  • Republic of Ireland – Superior Court Rules (Order 39) which can be accessed on the Courts service website. The Law Society of Ireland's Litigation Committee has also published a protocol for commissioning medical reports.

There are many relevant judgements regarding Expert Witnesses, the majority of which are available on the EWI website, but it is widely acknowledged that the current court rules follow a judgement by Sir Peter Cresswell in National Justice Cia Naviera SA v. Prudential Assurance Co. Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68, 81- 82; [1993] F.S.R. 563; [1993] 37 E.G. 158; Times, March 5, 1993.

Ikarian Reefer