Expert evidence and an absent defendant

The Case

The claimants brought an action alleging that the defendant unlawfully killed his wife while on holiday in Denmark. Shortly before the trial, the defendant informed the court that he would not attend or be represented at the trial. In deciding to proceed with the trial, the judge considered the implications of the defendant's absence for the expert evidence which he had adduced.

The expert evidence

The court had given both parties permission to rely on a written expert report in pathology. These were provided by Dr Fegan-Earl for the claimant and Dr Sheppard for the defendant. At the pre-trial review, the parties were also given permission to call oral evidence from their pathology experts. 

Although the defendant subsequently indicated that he would not attend or be represented at the trial, he suggested that he was still contemplating that Dr Sheppard would provide oral testimony.

The claimants argued that it was not possible for a party to be both absent and yet somehow sufficiently present to ‘call’ evidence. There was a ‘bright line’ to be drawn between a party who attends trial (whether in person or by their legal representative) and one who does not, a distinction that is made clear in the notes to the White Book (at CPR, Part 39.3.4). As Dr Sheppard’s report could not be tested in cross-examination, it should either not be admitted or, if admitted, given little or no weight. The claimants, however, made it clear that, consistent with the duty of fair disclosure, points favourable to the defendant would be raised with Dr Fegan-Earl, in examination-in-chief.

The judge’s view

The judge decided that, as the parties had been given permission to rely on expert evidence, “the written report of Dr Sheppard already forms part of the evidence that falls to be considered at trial, whether or not the Defendant chooses to exercise the right subsequently granted to him to call his expert.” The defendant’s absence from trial did not alter that position.

The judge then considered whether Dr Sheppard could give oral evidence if he were instructed to testify by the defendant. He concluded that allowing Dr Sheppard to give evidence orally in these circumstances would lead to real unfairness, as Dr Sheppard’s evidence would be tested by cross-examination, while Dr Fegan-Earl’s would not. This imbalance would be compounded by the claimant’s counsel putting points of potential assistance to the defendant to Dr Fegan-Earl. It could also lead to unfairness to the defendant who, if present, might have wished to re-examine aspects of Dr Sheppard’s oral evidence. The judge noted that the court could not do this on the defendant’s behalf without descending into the arena. 

Therefore, while the court would admit Dr Sheppard's evidence, it would attach the appropriate weight to the report given it could not be tested through cross-examination.

While not appropriate in this case, the judge noted that he could foresee circumstances in which a court might permit a party who was genuinely prevented from attending trial, in person or through the auspices of legal representatives, to adduce oral evidence from their witnesses. The judge noted that the court had wide case management powers and he had considered how Dr Sheppard’s evidence could have been facilitated in the circumstances, such as “through the experts giving evidence concurrently or suspending the fair disclosure regime presently in operation, at least during the phase of the pathology evidence.”

Learning points

• If the court has provided permission for a written expert report, that evidence should form part of the evidence at the trial, even if the party does not attend or have legal representation at the trial.
• A party who chooses not to attend the trial, either in person or through a legal representative, is unlikely to be able to call their expert to provide oral evidence.
• The court may, however, decide to allow oral expert evidence from a party who is genuinely prevented from attending or being represented at the trial.
• The court has wide case management powers to ensure that this can be done fairly.