Review: ‘Expert Privilege’ in Civil Evidence
| Author | Déirdre Dwyer |
| DOI | 10.1350/ijep.2011.15.3.383 |
| Published date | 01 July 2011 |
| Date | 01 July 2011 |
| Subject Matter | Review |
REVIEW
REVIEW
Paul England
‘EXPERT PRIVILEGE’ IN CIVIL EVIDENCE
Hart Publishing (Oxford, 2011); ISBN: 1841133035/9781841133034,
hbk, 173pp + appendices, £45
It is unusual to find scare quotes in the title of a practitioner text. They
presumably appear because, while it is generally accepted that there are
particular issues that arise in relation to the application of litigation privilege to
the work of experts in civil litigation, there is no succinct term to describe this very
important area of law.
‘Expert privilege’ is one of the most salient areas of conflict between the traditions
of adversarial litigation, on the one hand, and Lord Woolf’s procedural reforms of
the late 1990s, on the other. The traditions of adversarial litigation tell us that a
party should be able to put his best possible case to the court. That includes that a
party chooses the evidence which he actually adduces, and that may be only a
subset of all the evidence available to him. It also includes that work done in
preparation for litigation, including related communications, is privileged from
disclosure to third parties, particularly one’s opponent (‘litigation privilege’). The
Woolf Reforms direct, however, that parties should avoid disproportionate and
unnecessary expense, that they should act with ‘cards on the table’, and that
experts owe their overriding duty to the court, rather than to their litigant
paymaster.
Underlying Lord Woolf’s approach to policy are three fundamental, epistemo-
logical properties of expert evidence, particularly expert evidence of opinion.
First, to be admissible, such evidence must require skills that a non-specialist,
including a judge, does not possess. This in turn makes it likely that a
non-specialist, including the said judge, will have difficulty deciding whether to
accept the evidence. Secondly, while there will be a finite number of witnesses
who can testify as to what they saw and heard regarding the res gestae, there is a
potentially open-ended number of witnesses who can testify as to the results of
their subsequent inspections or experiments, and to their opinions. Thirdly, in
most non-trivial issues there is scope for experts to disagree genuinely as to their
interpretations. Because of these fundamental properties, there is long-standing
doi:10.1350/ijep.2011.15.3.383
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 277–280 277
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