The use of expert evidence in small claims
Property Aware 5
Expert evidence is required in cases where help from a third party with the appropriate knowledge and experience to understand an issue is vital to a case.
The use of experts is governed by Part 35 of the Civil Procedure Rules (CPR) which emphasises the necessity that experts remain independent and use their expertise to help the court decide the case. However, the use of an expert can incur substantial fees which can be justified if a claim has been made for a significant amount. However in small claims with a value of less than £10,000 is it ever worth instructing an expert? The general principle in small claims matters is that the role of experts is limited.
CPR 27.5 relates to expert evidence being permissible in small claims where the party wishing to rely upon the evidence has sought permission from the court. This article considers whether there are circumstances in which the time and cost incurred in obtaining expert evidence is justified by the achievement of significant savings on the claim
Although many of the general rules on evidence do not apply to the small claims court, CPR 27.5 provides:
• 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 / she must be instructed in accordance with Part 35 of the CPR.
If expert evidence is required in a small claims matter the court will almost certainly give special directions so that the parties know how to go about finding and instructing an expert.
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 involve significant fees.
So, for example, a local tradesman might be instructed to provide a brief report to provide his view on whether work involving his particular expertise was, in his opinion, undertaken with reasonable care and skill.
A judge is unlikely to order an expert to attend a small claims hearing but may adopt a flexible approach and the judge has a discretion as to when and how he / she uses an expert’s evidence.
This use of expert evidence in small claims can be particularly useful for defendants.
In our experience the courts do allow the use of expert evidence in small claims where causation, liability and / or quantum are in issue in property damage claims. Without such evidence, the court is limited to evidence from each of the parties in order to try and determine the issues.
In a recent small claims matter which was pleaded at just under £5,000, we were able to obtain expert evidence which supported the defence. The report was served on the claimant’s solicitors and, on the basis of the report, we invited discontinuance of the claim. The claimant refused to discontinue the claim despite the independent expert evidence in our client’s favour and, the matter proceeded to a final hearing. At the hearing, the judge considered the expert evidence and dismissed the claim.
On the basis that the expert evidence had supported the defendant’s defence and the claimant had been unreasonable in pursuing a claim without merit, the judge ordered the claimant to pay a proportion of our costs in the sum of £2,000. The claimant’s refusal to discontinue her claim had led to unnecessary costs being incurred by the defendant and the judge considered that our client was entitled to recover a proportion of those costs.
From a procedural perspective it is advisable to notify the court of an intention to rely upon independent expert evidence as soon as possible and this could be included within a defence and referred to in the directions questionnaire. The court should be notified that the defendant is seeking permission to rely upon expert evidence in accordance with CPR 27.5 and that the fees of that expert will not exceed the £750 limit as detailed in Practice Direction 27.
The use of expert evidence in small claims provides a greater degree of certainty allowing the parties to consider the position and potentially agree settlement before a final hearing. In our experience this has resulted in significant savings for insurer clients. Through our own claims handling experiences, we have found that expert evidence in certain small claims is necessary and we are finding that the courts are agreeable to the same as long as the following is confirmed to the court from an early stage:
• The reason why expert evidence is necessary i.e. to report on causation / liability or the reasonableness of quantum.
• That the cost of obtaining such expert evidence will not exceed the limit detailed in Practice Direction 27 and is therefore proportionate to the value of the claim.
• That obtaining such expert evidence will allow the parties to narrow the issues and assist the court in determining either liability, quantum or both.
It is clear that, when a claim is allocated to the small claims track, sometimes the time and cost incurred in obtaining expert evidence (up to £750) on a written report from an expert can be justified and this has been shown by adopting this approach and achieving significant savings for clients.
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