EXPERT Third Programme Of Law Reform 2008-2014

TABLE OF CASESAbbey National Mortgages Plc vKey Surveyors Nationwide Ltd &Ors(1996) EGCS 23EngAbinger v AshtonL.R. 17 Eq. 358, 373 (1873)EngAG (Ruddy) v kenny(1960) 94 ILR 185IrlAird & Anor v Prime MeridianLtd[2006] EWHC 2338EngAlsopp v Bowtrell(1620) Cro. Jac. 541EngAnglo Group Plc v WintherBrown & Co Ltd and BML(Office Computers) Ltd[2000] EWHC Technology 127 (8thMarch 2000)EngArmchair Passenger TransportLtd v Helical Bar PLC[2003] EWHC 367 QBEngAshford v Thornton(1818) 1 B. & Ald. 405EngAW v DPPUnreported, High Court, 23 November2001IrlBarings plc v Cooper & Lybrand(No.1)[2001] EWHC Ch 17 (9th February2001)EngBeckwith v Sydebotham1 Camp 116EngBest v Wellcome FoundationLtd[1993] 3 IR 421IrlBird v Adams[1972] Crim LR 174EngBuckley v Rice-Thomas(1554) Plowden 124; 75 ER 182EngBushell's Case(1671) Vaughan 142, 22 Car. 2EngCala Homes (South) Ltd & Ors vAlfred McAlpine Homes EastLtd[1995] EWHC 7 (ch) (06 July 1995)EngCarter v Boehm1 Smith LC, 7th ed (1876)EngClark v Ryan(1960) 103 C.I.R. 486AusCommonwealth DevelopmentBank of Australia Pty Ltd v[2002] NSWSC 980NSWxiii

CassegrainConfetti Records v WarnerMusic[2003] EWCH 1274EngDaniels v Walker[2000] EWCA Civ 508EngDaubert v Merrell DowPharmaceuticals, Inc509 US 579: 113 S. Ct. 2786 [1993]USDavie v Edinburgh Magistrates(1953) SLT 54EngDavis v Stena Line Ltd[2005] EWHC420 (QB)EngDerby & Co Ltd and Others vWeldon and OthersThe Times, Nov 9 1990EngDK v TH (Orse TK)Unreported, High Court, February 25,1998IrlDoherty v North Western HealthBoard, Davison and MedicalDefence Union and MDUServices Ltd[2005] IEHC 404IrlDPP v A and BC Chewing GumLtd[1968] 1 QB 159EngDPP v Boyce[2005] IE CCA 143IrlDPP v Buckley[2007] IEHC 150IrlDPP v Egan[1990] ILRM 780IrlDPP v Kehoe[1992] ILRM 481IrlDPP v Yu Jie[2005] IECCA 95IrlDPP v Yusuf Ali Abdi[2004] IE CCA 47IrlDunne v National MaternityHospital[1989] IR 91 (SC)IrlEnglish Exporters Pty. Ltd. vEldonwall Ltd[1973] 1 Ch 415EngF v L (Orse F)[1990] 1 IR 348IrlF(G) v B(J)[2000] IEHC 112 (28th March 2000)IrlF(Ors C) v C[1991] ILRM 79IrlField v Leeds City Council[1999] EWCA Civ 3013 (8 December1999)Engxiv

Fitzpatrick v DPPUnreported, High Court 5th December1997IrlFolkes v Chadd(1782) 3 Douglas 157EngFranks & Faith (t/a Ground RentSecurities) v Towse[2000] EWLands LRA 2 1999EngFrye v United States(1923) 54 App. DC 46, 293 F. 1013USGalvin v Murray[2000] IESC 78IrlGeneral Electric Co. v Joiner522 US 136 (1997)USGraigola Merthyr Co Ltd vSwansea Corporation[1928] 1 Ch 31EngHanrahan v Merck, Sharpe &Dohme[1988] IESC 1; [1988] ILRM 629 (5thJuly 1988)IrlHarmony Shipping Co v SaudiEurope[1979] 1 WLR 1380EngHawkes v London Borough ofSouthwark[1998] EWCA Civ 310 (20 February1998)EngHG v The Queen(1999) 197 CLR 414AusHoechst Celanese Corporationv BP Chemicals Limited[1998] EWCA Civ 1081EngHuffman v Lindquist(1951) 37 Cal 2d 465USJF v DPP[2005] IESC 24 (26 April 2005)IrlJOC v DPP[2000] IESC 58IrlJoyce v Yeomans[1981] 1 WLR 549EngJWH (Orse W) v GWUnreported, High Court, February 25,1998IrlKenning v Eve Construction[1989] 1 WLR 1189EngKincaid v Aer Lingus Teoranta[2003] IESC 31 (9 May 2003)IrlKirin-Amgen Inc and Ors vHoechst Marion Roussel Ltd &ORs[2004] UKHL 46EngKumho Tyre Co v Carmichael526 US 137 (1999)USKWT v DAT[1992] 2 IR 11IrlLadner v Higgins71 So. 2d 242 (La. Ct. App. 1954)USxv

Liddell v Middleton(1996) PIQR 36EngLiverpool Roman CatholicArchdiocesan Trust v Goldberg[2001] EWHC Ch 396 (6th July 2001)EngMaguire v Ardagh[2002] 1 IR 385IrlMcFadden v Murdock(1867) Exchequer IR ICL 211IrlMCG(P) v F(A)[2000] IEHC 11 (28th January 2000)IrlMcGrory v ESB[2003] IESC 45IrlMcMullen v Farrell[1993] 1 IR 123IrlMc'Naghten's Case(1843) 10 Cl. & Fin 200EngMcTear v Imperial Tobacco[2005] ScotCS CSOH 69EngMidland Bank Trust Co Ltd vHett Stubbs & Kemp[1978] 3 All ER 571EngMohammed v FinancialServices Authority[2005] UKFSM FSM 013 (18 January2005)EngMS v DPPUnreported 5th December 1997IrlMurphy v The Queen[1989] 164 CLR 94AusMutch v Allen[2001] 2 CPLR 24EngNational Justice CompaniaNaviera SA v PrudentialAssurance Co Ltd (The IkerianReefer)[1993] 2 Lloyd's Rep 68EngNC v DPPSC July 5 2001IrlNews Datacom v Lyons[1994] IEHC 1; 1994 1 ILRM 450 (20thJanuary 1994)IrlO'Callaghan v O'Sullivan[1925] 1 IR 90IrlO'Doherty v Whelan(1994) 12 ILT 25IrlO'Keeffe v Kilcullen[2001] IESC 84IrlO'Keeffe v Kilcullen[2001] IESC 84IrlO'Keeffe v Kilcullen[2001] IESC 84IrlPayne v Shovlin[2006] IESC 5 (09 February 2006)IrlPearce v Ove Arup PartnershipLtd & Ors[2001] EWHC Ch 455 (2nd November2001Engxvi

People (AG) v Fennell (No. 1)[1940] IR 445IrlPeople (AG) v Kelly(1962) Frewen 267IrlPeople (DPP) v Allen[2003] 4 IR 295IrlPeople (DPP) v FoxUnreported, Special Criminal Court,23rd January 2002IrlPeople (DPP) v HoweIrish Times 15 October 2003IrlPeople (DPP) v John GilliganUnreported 15 March 2001IrlPeople (DPP) v Pringle(1981) 2 Frewen 57 (CCA)IrlPetursson & Or v Hitchison 3GUK Ltd[2005] EWHC 920 (TCC) (09 May2005)EngPolivitte Ltd v CommercialUnion Assurance Co. Plc[1987] 1 Lloyd's Rep 379EngPoynton v Poynton(1903) 37 ILTR 54IrlQuarmby Electrical v Trant t/aTrant Construction[2005] EWHC 608 TCCEngR (Factortame) v Secretary ofState for Transport[2002] EWCA Civ 932EngR v Abadom[1983] 1 WLR 126EngR v Abbey[1982] 2 SCR 24CanR v Barnes[2005] EWCA Crim 1158EngR v Bjordal(1960) 103 C.I.R. 486AusR v Bonython[1984] 38 SASRAusR v Cannings[2004] EWCA Crim 1EngR v Chatwood[1980] 1 WLR 874; [1980 1 All ER 467,70 Cr.App.Rep. 39EngR v Clark (Sally)[2003] EWCA Crim 1020EngR v Dallagher[2002] EWCA Crim 1903EngR v Ferrers(1760) 19 Howell, State Trials 924-944EngR v Gilfoyle(2001) 2 Cr. App. R. 5EngR v Greene(1679) 7 Howell, State Trials, 185, 186EngR v Harris & Ors[2005] EWCA Crim 1980Engxvii

R v Heath(1744) 18 Howell, State Trials 70EngR v Howe[1982] 1 NZLR 618NZR v Johnson(1994) 75 A Crim R 522USR v Luttrell[2004] EWCA Crim 1344EngR v Meads[1996] Crim LR 519 CAEngR v Mohan[1994] 2 SCR 9CanR v O'Brien[2000] EWCA Crim 3EngR v O'Connell(1844) 7 Irish L. Rep 261IrlR v Pembroke(1678) Ib. 1337, 1228, 1340, 1341EngR v Puaca[2005] EWCA Crim 3001EngR v Robb(1991) 93 Cr.App.R 171EngR v RouseThe Times, 24 February 1931EngR v Silverlock[1894] 2 QB 766EngR v Stockwell(1993) 97 Cr.App.R. 260EngR v Toner93 Cr App R 382EngR v Turner[1975] QB 834EngR v Ugoh[2001] EWCA Crim 1381EngR v Ward(1993) 96 Cr App R 1EngRamsay v Watson(1961) 108 CLR 642EngRB v DPPUnreported, High Court, December 212004IrlRe Haughey[1971] IR 217IrlRe J[1990] FCR 193EngRe J[1990] FCR 193Re N[1999] EWCA Civ 1452 (20 May 1999)EngRichardson v Redpath, Brown &Co Ltd[1944] A.C. 62; 36 BWCC 259EngRockwater v Technip France SA& Ors[2004] EWCA Civ 381: [2004] RPC 46EngRoutestone v Minories Finance[1997] BCC 180Engxviii

RT v VP (Orse VT)[1990] 1 IR 545IrlS(J) v S(C)[1996] IEHC 23; [1997] 2 IR 506 (14thOctober 1996)IrlSevern, King and Company vImperial Insurance CompanyThe Times April 14 1820EngShell & Pensions v FellFrischmann[1986] 2 All ER 911EngSherrard v Jacob[1965] NI 151N IrlSmith v Lothian UniversityHospitals NHS Trust[2007] ScotCS CSOH 08EngSouthern Health Board v C[1996] 1 IR 219IrlSpencer Cowper(1699) 13 Howell, State Trials, 11261135EngStanton v Callaghan[1998] EWCA Cil 1176 (8 July 1998)EngState (D and D) v Groarke &Ors[1990] 1 IR 305IrlStrudwick & Merry(1994) 99 Cr. App. 326EngThe Beryl(1844) 9 P.D. 137EngThe People (DPP) v HorganIrish Examiner 25 June 2002IrlThe People (DPP) v MarkLawlorCentral Criminal Court 2 December2005IrlThe Torenia[1983] 2 Lloyd's Rep 210EngThompson v ThompsonSolicitors Journal of 3rd February 1961Volume 105IrlThorn v Dickens[1906] WN 54EngThorn v Worthing Skating RinkCo(1877) 6 Ch D 415EngToth v Jarman[2006] EWCA Civ 1028 (19 July 2006)EngTransport Publishing Co Pty Ltdv The Literature Board ofReview(1955) 99 CLR 111EngVelveski v The Queen(2002) HCA 4 (14 February 2002)AusVernon v Bosley[1996] EWCA Civ 1217Engxix

VW v DPPUnreported, Supreme Court 31 October2003IrlWallersteiner v Moir (No. 2)[1975] QB 373EngWebb v Page(1843) 1 Car & Kir 23EngWhitehouse v Jordan[1981] 1 WLR 246EngWilband v The Queen(1966) CanLII 3 (SCC)CanWitches Case(1665) 6 Howell, State Trials 687EngWright v Doe d Tatham(1838) 4 Bing NC 489Engxx

INTRODUCTIONABackground to the project1.This Consultation Paper forms part of the Commission‘s ThirdProgramme of Law Reform 2008-2014,1 and involves an examination of thecurrent rules concerning the admissibility of expert evidence in court and therole and function of expert witnesses. The project also involves an examinationof arrangements for ensuring the quality of expert evidence. In terms of thesetwo key aspects of the project, the Commission also explores relevant optionsfor reform.BThe admissibility of expert evidence of opinion and the role ofthe expert witness in court2.As the detailed discussion in this Consultation Paper indicates, a keyelement of the law of evidence as it applies in courts is that witnesses aregenerally allowed to give only relevant and factual evidence; they are notpermitted to express their opinion on their evidence. For example, if a personsaw a colleague having an accident while working with a machine in aworkplace, he or she could give evidence in court about what happened butwould not be permitted to give an opinion about whether, for example, themachine complied with national or international safety standards.3.There are a number of reasons why opinion evidence by ordinarywitnesses is not permitted. One is that an opinion may be based on a ―hunch‖rather than actual knowledge or expertise and would therefore be unreliable.Another reason is that the opinion – for example, as to whether a machinecomplies with safety standards – may be directly related to what is described asthe ―ultimate issue‖ to be decided by the court. In any criminal prosecution ofthe employer under relevant safety and health legislation, the ultimate issue iswhether the employer was in breach of any statutory duty to the employee andwhether it has committed an offence. Similarly, in any civil claim the ultimateissue is whether the employer was in breach of any legal duty and is required tocompensate the employee for any injuries sustained.1See Report on the Third Programme of Law Reform 2008 – 2014 (LRC 86 –2007). Project 11 in the Third Programme commits the Commission to examinethe admissibility of expert evidence and the role of expert witnesses, on which theCommission began work under its Second Programme of Law Reform 20002007. The Commission is also currently (December 2008) examining two otheraspects of the law of evidence under its Third Programme of Law Reform,documentary evidence and technology (Project 7) and the hearsay rule (Project8).1

4.The ultimate issue, whether of criminal or civil liability, is a matter fora court to decide, not for any witness. The overwhelming majority of criminaltrials dealt with in the Irish courts (over 200,000 annually) are heard in theDistrict Court by a judge sitting alone, who is both the finder of fact anddeterminer of liability. More serious crimes (over 2,000 annually) are in generaldealt with in the Circuit Criminal Court where the court consists of a judge andjury. Here the jury, guided by the trial judge on questions of law, is the finder offact, while the judge determines the sentence. Major criminal trials, in generalmurder and rape, are tried by judge and jury in the Central Criminal Court (over100 annually). In a criminal trial the ultimate issue of innocence or guilt mayturn on a complex technical issue such as DNA evidence, mobile phone tracingevidence, or the interpretation of medical evidence. In such cases, it is unlikelythat a judge or members of a jury will have the detailed technical knowledgerequired to decide, for instance, whether a DNA profile of the accused correctlymatched the DNA sample found at the scene of a crime, or whether a baby diedbecause of violent shaking or from natural causes5.The vast majority of civil trials are tried by a judge (or occasionally anumber of judges) without a jury. Here, the ultimate issue to be decided mayalso turn on a technical issue, such as whether a particular machine compliedwith safety standards or whether a chemical substance complied with relevantstatutory regulations. Again the court is unlikely to have the required knowledgeto deal with all the varied issues that arise in civil trials.6.It is clear that this is where the combination of expert evidence andthe expert witness forms an important part of many criminal and civil trials. Inthe law of evidence, the main exception to the rule against allowing a witness togiven opinion evidence is that an opinion can be given by an expert in an areaof expertise outside the scope of knowledge of the court, in particular the finderof fact. The benefits of permitting the court to be assisted in its fact-finding roleby expert knowledge have long been recognised. In that respect, expertevidence and expert witnesses will continue to play an important role in thecourts.CThe challenges involved in expert evidence and the role of theexpert witness7.At the same time, however, the Commission is aware that expertevidence and expert witnesses present challenges. In its Report on theEstablishment of a DNA Database2 the Commission traced the recentemergence of DNA evidence in criminal trials. The Commission noted that thebenefits of DNA evidence, both in exonerating the innocent and in convicting2LRC 78-2005, available at www.lawreform.ie.2

the guilty, are evident but it is also clear that this is an emerging science whichpresents a number of challenges. On the one hand, for example, there may besome who completely mistrust scientific evidence. On the other hand, there maybe those who take the view that the expert – perhaps especially a crime sceneexpert referring to DNA evidence – must always be right because they arealways right when portrayed on TV. In other instances, the problem may bewith the individual expert – the testimony may be hugely relevant andconvincing but it may be delivered using scientific jargon that the court (whetherjudge or jury) cannot follow. In its Report on the Establishment of a DNADatabase the Commission made some recommendations on how these mattersmight be addressed in the specific setting of DNA evidence.8.The Commission is aware that the specific issues it discussed in thecontext of DNA evidence reflect concerns in the wider setting of expert evidenceand expert witnesses generally. Increasing specialisation of knowledge in acomplex society has led to an exponential growth in the number of requests toenlist the aid of experts in civil and criminal trials. This has led to anexamination of this growth, with a view to ensuring that expert evidence remainsavailable to courts while at the same time addressing concerns about itsreliability.9.In the Reports of Lord Woolf in the mid 1990s3 that led tofundamental reform of civil procedure generally in the courts in England andWales, some of the principal causes for unease with the system of giving expertevidence were outlined. In Lord Woolf‘s Access to Justice, Interim Report(1995) the following comments were made:―In many cases the expert, instead of playing the [independent andimpartial] role identified by Lord Wilberforce,4 has become ‗a veryeffective weapon in the parties' arsenal of tactics.‘ A similar point wasmade by the Commercial judges when they summarised thepresent faults as follows:polarisation of issues and unwillingness to concede issues fromthe start;insufficient observance of the confines of expert evidence andexpansion into the realms of rival submissions; and34Lord Woolf, Access to Justice, Interim Report (1995) and Lord Woolf, Access toJustice, Final Report (1996).This is a reference to the view of Lord Wilberforce in Whitehouse v Jordan [1981]1 All ER 267, in which he stated: ―It is necessary that expert evidence presentedto the court should be and should be seen to be the independent product of theexpert uninfluenced as to form or content by the exigencies of litigation.‖3

insufficient willingness to strip out, agree or concede all but theessential issues following exchange of reports.‖10.The Australian Law Reform Commission, which carried out a reviewin this area in 1999, identified some of the main challenges of expert evidenceas being:5The court hears not the most ‗expert‘ opinions, but those mostfavourable to the respective parties, and partisan experts frequentlyappear for one side.Experts are paid for their services, and instructed by one party only;some bias is inevitable and corruption a possibility.Questioning by lawyers may lead to the presentation of an inaccuratepicture, which will mislead the court and frustrate the expert.Where a substantial disagreement concerning a field of expertise arisesit is irrational to ask a judge to resolve it; the judge has no criteria bywhich to evaluate the opinions.Success may depend on the plausibility or self-confidence of the expertrather than the expert's professional competence.11.This Consultation Paper seeks to set out the law as it stands inIreland on expert evidence, and examine whether the criticisms that have beenraised in other jurisdictions can be applied in the Irish context. The Commissionseeks to outline the problems that have been raised as well as discussing someof the potential changes that could be made to address these problems.DOutline of the Consultation Paper12.In the light of these general introductory comments the Commissionnow proceeds to provide an overview of the succeeding chapters in thisConsultation Paper.13.Chapter 1 sets out an historic overview of how expert knowledge wasused in the courts along with the development of a body of evidence laws andhow this has evolved into the current rule against opinion evidence, subject tothe exception that allows expert opinion testimony.14.Chapter 2 examines the rules governing the admissibility of expertevidence. The different categories of matters on which expert evidence isadmitted are outlined. This chapter also examines the precise scope andparameters of expert evidence and the rules governing this, including therequirement that the issue be outside the range of knowledge of the finder offact and the pro

The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission's principal role is to keep the law under review and to make proposals for reform, in particular by