Dr Chris Pamplin explores evidence of fact among ‘the tangled thicket’ of expert evidence
- There is often a fine line between evidence of fact and expert opinion, and the rules of evidence in both the civil and criminal courts have given rise to such dilemmas.
- Expert witnesses can give factual evidence within the ambit of CPR 35 if it aids in efficiently resolving the case.
In Darby Properties Ltd v Lloyds Bank plc [2016] EWHC 2494 (Ch), Master Matthews held that expert evidence of fact was not expert evidence within the meaning of Civil Procedure Rules (CPR) Part 35. This view persisted until 2023 when, in Declan Colgan Music Ltd v UMG Recordings Inc [2023] EWHC 4 (Ch), the High Court held that CPR 35 can apply to expert evidence of fact.
Declan concerned a dispute over the payment of music royalties under a licence agreement. The claimant sought permission to introduce expert evidence on the digital music market, while the defendant argued that this
