Expert Witnesses

WE HAVE LOOKED at evidence before and shown how evidence can be given orally or in affidavit form to the court. Mention was also made of deposition given by witnesses who actually witnessed the event. There are witnesses who give evidence who need not be present when a particular act occurs. Such a witness is regarded as an expert witness and he or she must have the relevant expertise.

According to Black’s Dictionary, an expert witness is “a person who by reason of education or specialized education possesses superior knowledge on a particular subject.” The person is skilled in some art, science, profession or business. Part 32 of our Civil Procedure Rules (2000) provide for expert witnesses. This person has special knowledge and is instructed by the court to be a witness. The evidence that the expert witness gives is restricted to that which is reasonably required to resolve the proceedings justly.

The party who brings the expert witness to the court must pay the expert witness a sum of money for expenses for the trip to and from the court and compensation for loss of time. In most matters in life a person has a duty to perform for the person who pays for such fees incurred in performances of services, but in this case the expert’s main duty is to the court and not to the person who pays the fees or expenses. The duty to the court overrides all other duties.

The expert has an onerous duty to perform in the court. The law requires in every instance that the testimony presented must be independent and not be swayed by the demands of litigation. This means that his statements must be factual, unbiased and objective. Essentially the testimony given must be the truth, the whole truth and nothing but the truth. If there is some qualification, it must be stated candidly.

The expert is guided by the instructions of the court and as such the expert has a right to apply to the court for directions. This must be done in writing in accordance with Section 32.5 of the Civil Procedure Rules (2000).

The role of the court is crucial, as it has the power to accept or reject an expert witness. It must give the approval for a party to call an expert witness or to present a report. This means that a party must therefore seek permission of the court to provide an expert witness. A party who wants an expert witness must apply to the court for this witness to give evidence. He or she must give the name of the person who gives the evidence, and the nature of the expertise. The party intending to use the evidence must get permission in a case management conference. A report of the evidence must be served on the opposing party. If this is not done the expertise cannot be used in the relevant case.

The expert witness can give evidence in a deposition and could be examined by a judge, a legal practitioner of five years, or any other examiner of the court or trier of facts. He must be paid for his services and if he is not paid for his services he could approach the court for an order to compel the party to pay such fees and expenses. An expert out side the jurisdiction could be solicited to give evidence by presenting a letter of request.

Expert witnesses are very useful in certain cases and may be used as long as permission is obtained from the court.

● Ada Johnson is a solicitor and barrister-at-law. E-mail address is: exploringthelaw@yahoo.com