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How To Give Evidence Internationally

Forensics

by Dr Thomas Walford

Most countries have their own rules about how court proceedings should be conducted. The establishment of a framework has led to the ability of two parties to present their cases and the available evidence to a judge or jury and for a decision to be reached that is seen as fair and reasonable. These basic premises are true of the common, civil and criminal law systems.

The role of the expert witness is to uphold the known principles of their discipline and, with a duty to the court, present their opinions in a balanced, truthful, unbiased and independent way both in writing and person in the court. However given the different rules around the worlds courts, although the principles may be the same the framework they have to abide by can be very different.

“Cross-examination is the greatest legalengine ever invented for the discoveryof truth.” John Henry Wigmore

Dr Thomas Walford gave a lecture on “How To Give Evidence Internationally” at the Institution of Chartered Accountants of England and Wales’ (‘ICAEW’) Forensic and Expert Witness Conference, on Tuesday 8 November 2016. In the lecture he focused on the rules in various international courts and also the world accepted principles of the Ikarian Reefer. These were expounded by Mr. Justice Cresswell in National Justice Compania Naviera SA v Prudential Assurance Company Limited in 1993 and have remained a founding principle for the activities of experts when involved in the litigation process.

These rules have been updated by a more recent court case Kennedy v Cordia where judgement was passed down in 2016 and extended the principles to the expert needing to be able to assist the court, the expert needing to demonstrate the knowledge and expertise and there needing to be a reliable body of knowledge for the expert to follow.

Many major countries have developed their own rules since then and some of the most comprehensive are to be found in the United Kingdom and covered by Civil Procedure Rules 35 and the practice direction and guidance that goes with it. Not only do countries have their own rules but sometimes so do individual judges for their courts. Illustration of one of these was provided in the lecture but most importantly it is for the experts to be familiar with the legal framework that exists as part of their role.

In the lecture, Dr Walford concentrated on the UK, Ikarian Reefer, EU and Singaporean rules as an illustration of the different requirements and also provided information on the sources to search for information on the international requirements that exist. These rules and requirements will be especially important for medics, engineering and financial experts where the same principles tend to exist globally.

Useful Links: International Expert Witness Rules – a summary and Supreme Court Judgement in Kennedy v Cordia [2016] UKSC 6.

Expert Evidence Limited is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.