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What constitutes bias in an expert witness?
  • Nov 8, 2018
  • Latest News

by Dr Thomas Walford, Expert Evidence

Who does an expert witness owe a duty to?
This is probably the most important aspect of an expert’s work. His duty is to the court and he has to maintain his independence at all times. This has been enshrined in the court rules in many parts of the world.

An expert is someone who has succeeded in making decisions and judgements simpler through knowing what to pay attention to and what to ignore.” - Edward de Bono

Originally the duties of an expert were covered in a court case, which is now known as the Ikarian Reefer rules. This was follows a judgement by Mr. Justice Cresswell in National Justice Compania Naviera SA v Prudential Assurance Company Limited in 1993.

Since then various legal jurisdictions have produced detailed rules such as:

English Civil – Civil Procedure Rules Part 35, Prac- tice Direction 35 and the Protocol for the Instruction of Experts to give Evidence in Civil Claims and the Guidance for the instruction of experts in civil claims 2014.

English Criminal – Criminal Procedural Rules part 19.
Scotland – No formal rules but there is a Code of Practice and case law similar to Ikarian Reefer prin- ciples.

Northern Ireland – Codes of Practice for Experts PD 1/2015 , PD 7/2014 , PD 2/2009 & PD 6/2002. Please note that the expert declaration in 6/2002 has been replaced by 7/2014.

Jersey – Civil Evidence (Jersey) Law 2003 revisied to 1 January 2013 and detail.

Guernsey – The Evidence in Civil Proceedings (Guernsey and Alderney) Rules 2011.

Switzerland – Article 272 of Swiss Civil Procedure Code.

Europe – Civil Litigation Guide (to be enacted) and published in 5 languages – Expert’s European Guide for Legal Expertise including Code of Conduct.

Council of Europe – Human Rights and Rule of Law – European Commission for the Efficiency of Justice (‘CEPEJ’) – Guidelines on the role of court-appointed experts in judicial proceedings of Council of Europe’s Member States.

Australia – Practice Notes for the Federal Court. Canada – Rule 53.03 Code of Conduct for Expert of
the Federal Court Rules and The Advocates’ Society

– Links to practice directions in all Canadian States for testifying experts.
Bermuda uses the Ikarian Reefer precedent,
Dubai International Financial Centre (‘DIFC’) Rules
part 31 and Schedule A.
Hong Kong uses the Rules of the High Court prece- dent.
Singapore – Evidence Act – Opinions of third per- sons when relevant , Criminal Procedure Code – Re- port of qualified persons , Rules of the Court Order 40 and 40A,
US – Federal Rules of Civil Procedure, Rule 26 and also by Federal Rules of Evidence, Rule 706.

There are also some places which still have no rules but then it is common to adopt the rules from a known jurisdiction usually the English ones. One such place is Ireland, which although has an estab- lished basis on which expert evidence is given, there are not formal rules. It is anticipated that they will institute their own before too long.

Please do not expect an expert to support the case irrespective of the facts, it will avoid disappointment. Although he will not be part of the legal team who is arguing for a litigation party – he is probably a really asset if he is used correctly.

Expert Evidence has a large international business and regularly is called to give evidence in courts around the world.

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Copyright of Expert Evidence 2018.

This and other useful articles on instructing and acting as an expert witness are available here.

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