The ability of the courts to assess expert evidence is a cause for concern prevalent in western legal systems today. It seems to cut across the traditional divide between Anglo-American and continental European legal systems. The principal form in which that concern is manifest is discussion of expert bias. Bias is of course something that is not unique to experts; it is quite likely that witnesses will be biased, and it is always possible that a judge will be biased. Different legal systems handle these concerns in different ways: some jurisdictions may exclude the testimony of civil parties, criminal defendants or those in certain relationships to them, others may let the question of witness bias go to weight; judicial bias may be dealt with by recusal, or addressed on appeal. The possibility of bias in the testimony of experts is problematic for the courts in a different way from bias in the testimony of witnesses of fact, and it cannot be addressed, as it can for judges, on appeal, and only rarely through recusal.

6.1 Introduction

The previous chapter took us from the end of the fifteenth century through to the end of the twentieth century in considering the judicial assessment of expert evidence in the English civil courts. This journey looked at the range of expert roles that have existed historically in the civil courts (party expert witnesses, special juries, assessors and court experts), both under the several jurisdictions that existed prior to the Judicature Act 1873 (common law, equitable and civilian), and subsequently under the fused jurisdiction of the Supreme Court, whose procedure was governed by the Rules of the Supreme Court (‘RSC’). Our journey ended in 1998, on the eve of the introduction of the Civil Procedure Rules 1998 (‘CPR’), which came into force in April 1999. This chapter analyses the operational veritistic value of the expert roles provided for under Pt 35 of the CPR (party experts, single joint experts and assessors).

The CPR are intended to be ‘a new procedural code with the overriding objective of enabling the court to deal with cases justly’ (CPR r. 1.1). Implicit in this statement are five elements of the paradigmatic shift that was intended to distinguish the CPR from the RSC. First, it is ‘new’, and this implies a break with the RSC rather than a progression. Secondly, ‘code’ is a legal term of art, that carries with it a sense of self-containment and completeness that is not equally true of ‘rules’.

35.1 Duty to restrict expert evidence

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

35.2 Interpretation

A reference to an ‘expert’ in this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings.

35.3 Experts – overriding duty to the court

1. It is the duty of an expert to help the court on the matters within hisexpertise.

2. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

35.4 Court's power to restrict expert evidence

1. No party may call an expert or put in evidence an expert's report withoutthe court's permission.

2. When a party applies for permission under this rule he must identify –

1. (a) the field in which he wishes to rely on expert evidence; and

2. (b) where practicable the expert in that field on whose evidence he wishes to rely.

1. (3) If permission is granted under this rule it shall be in relation only to theexpert named or the field identified under paragraph (2)

2. (4) The court may limit the amount of the expert's fees and expenses that the party who wishes to rely on the expert may recover from any other party.

This project began with an interest in two relatively recent developments in expert evidence in the civil courts of England and Wales. The first was the 1997 decision of the House of Lords in the case of Bolitho v. City and Hackney Health Authority, which appeared to introduce the possibility that a judge sitting at first instance might be able to assess for herself, based on expert evidence, whether a medical professional had been negligent. The second was the extensive reform of the use of expert evidence effected by the Civil Procedure Rules (CPR) 1998. Expert evidence had been one of the two principal areas of concern in the course of Lord Woolf's Access to Justice enquiry, the other being uncontrolled discovery. At that time, Lord Justice Judge and several High Court and District judges and masters, interviewed anonymously, were more than generous with their time in discussing these issues from a judicial perspective. More recently, Master Foster has very kindly read a draft of the chapter on experts under the CPR, and provided suggestions, and Senior Costs Judge Hurst has provided advice on the use of costs assessors.

As is perhaps too often the case, what seemed at first blush to be a nicely defined area of enquiry unfolded to reveal a multiplicity of issues.

In this book I have sought to address two fundamental questions about the judicial assessment of expert evidence. First, how can a non-specialist court accurately determine facts that require specialist knowledge? This includes the subsidiary question of how, if a specialist advises the court, the non-specialist court can know whether to accept the advice? Secondly, how should we arrange our legal processes to best support our expectations of accurate fact determination, and other procedural goals, arising in whole or in part from expert evidence? Broadly, the first question has been addressed in Chapters 1 to 3, and the second question in Chapters 4 to 7. But the first question cannot be properly answered without an answer to the second, and vice versa. There are two integrating themes that have helped to define the approach taken in this book. The first has been an attempt to begin to re-integrate legal evidence theory with classical epistemology. The second has been an attempt to begin to re-integrate the study of evidence with that of procedure.

2.1 Introduction

The work of the previous chapter has provided us with a general epistemological framework to describe the judicial assessment of evidence. In particular, it has proposed that judicial justified belief should be explained in terms of a Haackian foundherentist model, it has identified features of judicial fact finding that distinguish it as a special form of epistemology, it has presented a meta-justification in the form of Twining's Rationalist Tradition, and it has analysed elements of that meta-justification, particularly atomism and the use of generalizations.

Chapter 1 began to allude to, but deliberately held back from fully engaging with, the question of how expert evidence fitted into this framework.

3.1 Introduction

Chapter 2 provided an argument that the court as tribunal of fact possesses a limited epistemic competence to assess expert evidence. When the court determines the facts of the case before it, it is able to draw a limited set of justified inferences from the evidence presented by experts. It might reasonably be suspected that this is in some sense cheating, because, although there are some concerns about whether the courts can form such justified inferences, the more prevalent concern is whether the court is able to do so when confronted with conflicting expert opinions. This is not cheating, however. The question of epistemic competence has been considered as a necessary preliminary point in Chapter 2, in the same way that Chapter 1 spent necessary time laying down the foundation of the epistemology adopted in my argument, so that in this chapter it is now possible to turn to examining in greater detail the specific problem of how the courts are to decide where the expert evidence in a case offers more than one interpretation.

The body of the chapter is divided into five parts. In Section 3.2, I examine why legal and expert communities differ in their attitudes towards disagreement in drawing inferences from facts. The two main areas for disagreement concern, first, which set of generalizations (which we might call a ‘theoretical framework’) should be applied to a given set of base facts, and, secondly, how those generalizations should be applied to those base facts.

4.1 Introduction

An explanatory theory of evidence generally, or expert evidence specifically, might be concerned solely with identifying arrangements that are optimal for accurate fact determination. However, evidential arrangements are inextricably linked to non-epistemological questions about the political, moral and cultural values that ought to be promoted through the procedural activity of fact finding. In Chapters 1 to 3, I explored the extent to which it can validly be said that the non-expert tribunal of fact is epistemologically competent to assess the evidence of experts. I proposed a basis for such competence, based on a common set of evidential techniques. Any account of how the court descriptively does, or normatively should, approach the assessment of expert evidence should be given in the context of this theory of limited epistemic competence. It is both a necessary preliminary point, to demonstrate that the court is able to assess expert evidence, and an analytical framework within which to think about the fact-finding effectiveness of various approaches to presenting and assessing expert evidence.

Alongside this epistemological account runs an understanding of the non-epistemological factors that contribute to defining expectations of the role of the expert, held by those involved in the litigation process. These factors may shape both the normative procedural provisions for the way in which experts are to be used, and the way in which parties and the experts themselves act within the context of those provisions.

1.1 Introduction

This book is concerned with how judges seek to the best of their ability to form justified beliefs about the truth where at least some of the evidence on which they must rely is the evidence of experts. It can thus be seen as occupying a space within applied philosophy, in the area of epistemology, as well as within the law relating to evidence and proof. Specifically, it concerns legal rather than classical epistemology. Classical epistemology is concerned with how individuals form knowledge and justified beliefs (Section 1.2). However, in relation to the judicial assessment of expert evidence, this would require that we imagine the judge sitting in splendid isolation, imagining and obtaining whatever information she decides is necessary to decide accurately the facts that lie behind a case. Instead, the judge undertakes her fact-finding work within the context of the legal process, and in particular in the context of the rules and practices of evidence and procedure. Legal epistemology entails fact finding, and belief justification, in a social context.

5.1 Introduction

This chapter is the first of a pair which examine in detail how epistemological and non-epistemological factors combine to produce a range of expert roles, taking English civil procedure as a case study. In this chapter, I examine the historical development of provisions intended to assist the assessment of expert evidence in the English civil courts. My time frame is from the end of the fifteenth century, when civil cases involving expert evidence are first recorded, through to the last days of the Rules of the Supreme Court at the very end of the twentieth century. The relationship between the Civil Procedure Rules 1998 and the effective assessment of expert evidence are the subject of Chapter 6, the second chapter in this pairing.

Some might approach this as an optional chapter within the book as a whole. What, after all, can legal history tell us about modern-day evidence law? This is both a normative question (what should legal history be entitled to tell us?) and an evidential question (how much do we know about the history of evidence law for it to be able to tell us anything useful?). The history of civil expert evidence is relevant to the modern-day question of its assessment in two ways. The first is that, by understanding the traditions of procedural and evidential thought and practice that have led us to where we are today, we might have a better understanding of relevant non-epistemological factors, such as are described in Chapter 4.

7.1 Introduction

Chapter 6 examined the relationship between the civil procedure provisions for expert evidence, using the Civil Procedure Rules (‘CPR’) as a case study, and the court'ty to assess that evidence effectively. Particular attention was paid to the relative merits of the range of expert roles available (party expert, single joint expert, assessor), and to the way in which procedure can be used to assist the court in narrowing the issues between the parties' experts. In this final chapter I turn to consider how procedural provisions might in particular be used to overcome the problem of expert bias, and how the broader procedural framework may constrain available options.

The effectiveness of six possible approaches to discouraging or preventing bias is examined, drawing on current practice in England, the United States of America and France. First, the use of single experts, currently in the form of court experts (in practice) in France and (more in theory) in the United States federal courts, and in the form of single joint experts in England (Section 7.2). Secondly, the French practice of the presumptive recusal of an expert for bias (Section 7.3). Thirdly, the United States practice, following Daubert, of excluding certain expert evidence from consideration by the tribunal of fact, on the legal ground that such evidence is unreliable, therefore is not relevant, and therefore is inadmissible (Section 7.4).

In modern law we exist as a plurality of persons. This is essentially my thesis, starkly put: that we are plural not unitary beings in law and that necessarily our law is, in this sense, pluralistic. Each one of us inhabits our legal world as multiple beings, as multiple subjects, as it could be said we do in life.

The legal world that forms the focus of this paper is that of modern centralised Anglo-American-Australasian state law. Adopting the usage of Peter Cane, I will call this ‘Anglian’ law and thus refer to ‘legal systems the conceptual structure of which is derived from that of English law’. It is within this formal legal arena – its doctrines, its principles, its interpretations – that I wish to examine our plurality of being. We exist, of course, as all sorts of persons outside this formal state-institutionalised law. In the many extra-legal roles we perform (within the family, at work, socially and so on) and in the various cultures we inhabit (be they religious or sexed or sexual or indigenous or whatever), our very persons may be said to transmogrify or multiply. And indeed our extra-legal lives may assume such practical and symbolic importance that our legal personalities may seem to pale in comparison. Some might even say that these other ways by which we order, regulate and make sense of our lives represent rival laws or even rival legal systems.

The role of International Standards

The Code functions together with the WADA International Standards and various Guidelines or Models of Best Practice which may be adopted by anti-doping organisations, in relation to the processes under the Standards. The Guidelines are not mandatory, whereas Signatories must apply and comply with the International Standards in order to fulfil their obligations. The Standards are an important part of the agreed regime under the Code, and the Articles of the Code make direct reference to them where testing, the analysis of samples to establish doping, the designation of prohibited substances and methods and the grant of therapeutic use exemptions are referred to. In these areas, the Code provides the framework, while the Standards provide the detail. An anti-doping organisation which agrees to the Code, and an athlete or other person who is bound to it, will agree to the application of both the Code and the Standards. Often, a challenge to an alleged anti-doping violation will involve the detailed consideration of the Standards (and related technical documents concerning such matters as the method of analysing samples for specific prohibited substances or methods) applicable to the process of testing and analysis, in order to determine whether the anti-doping organisation has carried out its obligations properly.

The International Standards are:

• the Prohibited List 2008;

• the International Standard for Therapeutic Use Exemptions;

• the International Standard for Testing; and

• the International Standard for Laboratories.