By Peter Yates
Both parties sought to circumvent the requirement to obtain the court’s permission before adducing expert evidence. The Defendant sought to adduce what was unmistakeably expert evidence by having their expert produce his evidence as “an independent fact witness”. The Claimants, in turn, sought to rely on scientific papers and served them under cover of hearsay notices. Arnold J commented on these attempts, at paragraphs 3 and 4 of his judgment:
“The parties in this case adopted slightly odd procedures to adduce evidence of the technical background. Gilead served a witness statement of Professor Brian Gazzard CBE, who is Professor of HIV Medicine, Consultant Physician and Research Director for HIV and Genitourinary Medicine at Chelsea and Westminster Hospital. Prof Gazzard is, and has been for many years, a well-known and eminent expert in the field of HIV treatment. He stated in his witness statement that he had been asked to give evidence “as an independent fact witness”. In reality, Prof Gazzard’s evidence is, at least in part, expert evidence which Gilead did not obtain the permission of the Court to adduce. The fact that his statement was, commendably, quite brief and drafted so as to be uncontroversial does not alter this.
For their part, the Claimants served hearsay notices in respect of a number of scientific papers. This was another device for adducing what in substance amounted to expert evidence without obtaining the Court’s permission, and an even less satisfactory one. The general rule in English law is that a scientific textbook or article is not in itself admissible evidence: see Phipson on Evidence (18th ed) at §32-20. The reason for this rule is that it cannot generally be assumed that the court has sufficient expertise to understand and assess such materials without the assistance of an expert. It is, of course, entirely proper both for expert witnesses to refer to such materials in their evidence, and for cross-examiners to test the evidence of such witnesses by reference to such materials, but that does not alter the fact that the primary evidence is that of the expert witnesses. …”
In the event, both sets of evidence were uncontroversial and were admitted by consent. The case serves as a reminder, however, that parties should not seek to avoid the usual rules relating to expert evidence by dressing material up as evidence of fact, or by using Civil Evidence Act notices. The point may be of relevance in, for example, credit hire cases where parties seek to rely on rates evidence which strays into expert territory.