Arnot Manderson

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Neil Morrison
Advocate
Arnot Manderson
Contributions by Arnot Manderson Experts

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Expert evidence in Scottish civil litigation—general considerations
Expert evidence in Scottish civil litigation—general considerations
Practice Notes

This Practice Note provides a detailed analysis of the core principles and general considerations involved in the use of expert evidence in Scottish civil litigation. It considers what expert evidence involves, the function of an expert witness and the types of claims where expert evidence is regularly used. It also explains the duties and responsibilities of an expert witness, the admissibility of expert evidence, how to instruct an expert witness and the role of single joint experts.

Leading expert evidence in Scottish civil litigation—rules and procedure
Leading expert evidence in Scottish civil litigation—rules and procedure
Practice Notes

This Practice Note considers the rules and procedure that relate to leading expert evidence. It covers any pre-action requirements in relation to expert evidence, the application of legal privilege and the disclosure of expert reports. It also covers the practicalities involved in the joint meeting of experts, how to prepare an expert for proof and concurrent evidence (or ‘hot tubbing’).

Expert evidence in Scottish civil litigation—checklist
Expert evidence in Scottish civil litigation—checklist
Checklists

Expert evidence in Scottish civil litigation—checklistThis Checklist on expert evidence in Scottish civil litigation identifies the key considerations for a solicitor considering instructing an expert in a civil dispute in the Scottish courts.This Practice Note should be read in conjunction with Practice Notes: Expert evidence in Scottish civil litigation—general considerations and Leading expert evidence in Scottish civil litigation—rules and procedure.IssueConsiderationsAssessing the need for an expert witness—What is the nature of the dispute (for example, an expert report is generally required before a claim for professional negligence is raised)?—Is it reasonable and proportionate to use an expert given the value of the claim?—Do you need more than one expert?Admissibility of the expert evidence—Do I need an expert to help the court make a decision in the case?—Does the expert have the necessary knowledge and experience?—Will the expert be impartial in the presentation and assessment of the evidence?—Is there a reliable body of knowledge or experience to underpin the expert’s evidence?Potential conflicts of interest—Have you told the expert about the general nature of the case?—Have you provided the expert with the names and details of the other parties involved in the case to ensure they are not conflicted?—Have you confirmed with the expert that they have no actual or potential conflict?Evaluating the expert’s suitability, qualifications and impartiality—How reliable does the expert appear?—Has the expert appeared in any other court cases? If so, was any judicial comment on the expert positive or negative? How did the expert perform?—How good are the expert’s communication skills?—Does the expert still work in specialist area? Or is the expert now retired and only doing expert witness instructions?—What risk, if any, is there that the expert’s independence may be questioned?—Have you undertaken an online internet search into the expert’s background? For example, have they been subject to any complaintsAssessing the expert’s availability and responsiveness—Does the chosen expert have the time to spend on the matter?—Is the expert aware of the length of time they will be involved in the case?—Is the expert willing to commit the necessary time and resources to meet any deadlines?—Is the expert prepared to give timely fee estimates?—How responsive and accessible is the expert?Instructing the expert and providing documents and information—In the letter of instruction to the expert, has the background to the case been set out? Does it set out the Ikarian Reefer duties?—Have specific issues or form of questions that require consideration by the expert been highlighted?—Does the expert understand the applicable legal test? For example, the Hunter v Hanley test in professional negligence cases.—Have the key deadlines been set out?—Have all the relevant documents been attached, appended or enclosed with the instruction letter?—In particular, if proceedings are already underway, has the expert been provided with the court pleadings, any witness statements, precognitions or productions such as photographs?—Have you reminded the expert about their UK GDPR obligations?—Has the expert been instructed on a non-contingency basis?—Have you confirmed with the expert what their role will be and the likely time commitment to attend consultations and possibly give evidence at a proof hearing?—Has an undertaking been given by the expert to treat as confidential all the information which the expert will receive in their role as expert witness?—Have you enquired with the expert whether they would be willing to meet with the opposing expert and be open to ‘hot-tubbing’?

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