When is an expert an expert?

Whether an expert is an expert is a vital question as where the evidence is deemed to be expert evidence then it will not be admissable. Whereas if it is deemed to be trade evidence it will. The rules on expert evidence can be found in CPR 35.

The ever excellent Judge Birss determined that the trade evidence consisted of evidence about celebrity licensing and the clothing market, whereas evidence concerning research and information regarding the trade was expert evidence and could only be admitted with leave of the court.

Section 2(3) of the 1972 Civil Evidence Act, provides that rules of court can be made to regulate the admission of expert evidence, but it does not define what expert evidence is. The modern regulation of expert evidence is set out in CPR Part 35.4(1) and (2):

“(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence will address and (b) where practicable, the name of the proposed expert.”

Judge Birss made the following clear:-

“There are two different issues in play in this debate. One is the court’s ability to regulate the evidence and second is the imposition of the requirements relevant to expert evidence such as the obligations, and so on, referred to in Part 35. It is the impact of that latter issue in trademark and passing off cases which concerns me much more than the former. In fact the problem may have been potentially more significant in the past than it is today because of amendments to the CPR following the Jackson Review. They emphasise that all the evidence before the courts is now to be controlled, and I refer to the new Rule 32.2. Thus, we are moving towards a regime more like the Patents County Court system. The significance of that is that the ability to restrict evidence does not now depend on whether it is characterised as expert evidence or not. It is now clear that evidence can be controlled, however it is characterised.

In future it is clear that trade evidence will be subject to the regulation under Rule 32.2. In the Patents County Court system for the last three years, what has happened is this. At the case management conference the court would ask the litigants what sort of evidence they intended to call. The litigants know that they need to be able to give a rational answer to that question. In a trademark and passing off case, one obvious potential category is trade witnesses. As a judge in the PCC, if a party wanted trade evidence I would generally permit a limited number of trade witnesses. It would all depend on the circumstances, and there is no reason why the same approach cannot be taken in general terms at the CMC under Rule 32.2. Indeed, it seems to me that in order to exercise the power in Rule 32.2, a party will need to be able to say at the case management conference what sort of evidence they intend to call. In a High Court case, a limit on the numbers or the type of evidence may or may not be appropriate, but at least if the question is asked at the case management conference, steps can be taken.”


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