The Clause provides that statements of opinion made out of court shall be admissible in evidence in the same way as out-of-court statements of fact were made admissible by the Civil Evidence Act, 1968.

I speak as one who has grave reservations about the merits of the Bill and, indeed suspicions about its motives. By way of parenthesis, perhaps I may ask my hon Friend whether he intends that in future "hearsay" should be spelled "heresay". The word has a different spelling in the" Explanatory Memorandum from that in the Bill.

For that error I apologise.

I am gratified to know that we are not to alter the spelling of that ancient and honourable—or, perhaps sometimes dishonourable—word.

I take this opportunity to reassure my hon. Friend the Member for Orpington (Mr. Stanbrook) that some of his alarm is without a great deal of justification.

I echo what the Solicitor-General said by way of congratulation and thanks both to his hon. Friend the Member for Bristol, North-West (Mr. McLaren) and to the distinguished members of the Law Reform Committee, whose last report is the basis of this Bill.

I endorse what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) has said, that it would normally be for the court at the beginning to review the qualifications of the person putting himself forward to give expert evidence, and it would be for the court to consider whether, by his experience of and study in a specialised subject matter, such a person was to be trusted in giving to the court specialised evidence of that sort. I am grateful to the hon. and learned Gentleman for raising that point. Those concerned with the Bill in another place may well think fit to add a helpful definition.

The danger about hearsay evidence is not that of misleading the tribunal, whether it be a judge or a jury. It is that hearsay evidence may be fabricated evidence, just as misleading possibly in either case. That is the danger we must seek to guard against.

I should have thought that judges would be well able to look after that and keep a sharp eye on the value of the evidence before them. Nor is it seriously to be supposed that if a lay witness gives his evidence from opinion in an accident case by saying that he thinks it was all the fault of one side the judge will necessarily allow himself to be swayed by that evidence. It will merely be a case of the witness trying to convey to the judge what he saw and thought.

Paragraph 19 of the report is indeed the reference, as mentioned by the hon. and learned Member for Dulwich (Mr. S. C. Silkin). As I understand it, the first sentence sets out the state of the common law now:

"It is also for the judge to determine whether the expert whose testimony is sought to be adduced possesses the knowledge or experience needed to make his evidence of assistance in enabling the judge to form a correct opinion on the matter in issue."

"a person who is suitably qualified to do so on account of his knowledge or experience"

This Clause gives power to make rules of court with respect to expert reports and expert oral evidence. The rules may govern the procedure for putting in evidence experts' reports and may provide for the compulsory disclosure of such reports, and may go on to prohibit the calling of expert oral evidence where there has been a failure to disclose a report.

The Clause is the most substantial, perhaps the most important, and, from my point of view, the most objectionable part of the Bill. It provides for the compulsory simultaneous disclosure of expert evidence. Significantly, the minority Report of the Law Reform Committee deals with this problem. It is, perhaps, immensely significant, notwithstanding what my hon. and learned Friend the Solicitor-General said about the composition of that Committee—I do not wish to sound irreverent about its members—that those who signed the minority Report—that is, those members of the Committee who did not agree with this substantial change in our practice—included two of the most distinguished barristers practising in the courts today.

"…the change is far from being merely procedural. At present a report obtained by a party is privileged from production. The proposal is that a party should be compelled to waive his privilege if he wants to call evidence. This goes a long way to the abolition, in so far as it relates to expert evidence, of a privilege which is fundamental to the adversary system and has stood unchallenged and substantially uncriticised for a very long time.

Furthermore, the special position of the defendant must be considered. At present he is entitled to do his best to destroy the case against him, deciding only at the close of the plaintiff's case whether he will call any, and if so, what, evidence. Under the majority proposals"—

"a defendant's position will be radically changed if an order is made In order to preserve his right to call evidence on a matter of expertise he will have to disclose his expert's report. The plaintiff's expert will then be forewarned to meet the cross-examination. Some may consider that this is desirable. Whether it is desirable or not, it is a fundamental change and should be recognised as such. To speak of holding the balance equally does not advance matters. Plaintiff and defendant are in different positions. At present the defendant has the right mentioned."

"Is it expected to be based on agreed facts?

Is it expected to be based on facts ascertainable by the expert himself with reasonable certainty by the exercise of his own powers of observation?

Is it expected to be based on facts which are common knowledge by reason of having been published in professional books or journals?

Is it expected to be based on facts observed in the past by the expert in the course of his professional studies or practice?

Is it expected to be based on a version of facts in dispute supplied by the instructing part?"

"We are at a loss to understand how a master, or a registrar, can possibly reach a conclusion upon such matters. He will not have the report before him nor will he know by whom it is going to be made. For a master to say 'I expect that the report when made, and by whomsoever it is made, will or will not be based on agreed facts, or facts ascertainable with reasonable certainty by the expert himself by the exercise of his own powers of observation, or on facts which have been published in professional books or journals, or on facts observed in the past by the expert', can be no more than uninformed crystal gazing."

"It is in our opinion an impossible task."

Will my hon. Friend accept that, although it may be highly desirable, it is much more honoured in principle than in observance? Surely all that a prosecution has to do is to provide enough evidence to make a prima facie case on which to achieve the committal of the defendant and get the defendant in front of a higher court. In long cases notices of additional evidence flow throughout the entire course of a prosecution case.

I am grateful to my hon. Friend for that intervention. That is just the point, that the evidence admitted at a preliminary hearing of a criminal case for the purpose of committing the defendant to trial is necessary only in order to establish a prima facie case against the defendant.

As this is a civil evidence Bill, should we not confine ourselves to civil proceedings and leave on one side criminal proceedings?

I will do my best. I just want to reply to this point because we are dealing with the publication of evidence before a trial. That applies equally to both criminal and civil cases. While the theory of the production of evidence for committal for trial is that sufficient should be produced for the purpose of establishing a prima facie case, in practice because of our devotion to this principle of fairness to the defendant—and I cannot very well argue against that—the prosecution tends to produce all its evidence for that purpose. I accept that in very long trials and big cases sometimes a considerable amount of work is done by way of notices of additional evidence, but great attention is given to the problem of assisting the other party to the dispute by presenting all the case and the evidence against him as early as possible. I question whether this has in practice been in the public interest. Therefore, by introducing a similar principle into civil evidence we are perhaps promoting something which will have highly undesirable consequences.

Is there not a clear distinction between the point which the hon. Gentleman makes—I am not in any sense saying that I agree with what he has just said—and the effect of these provisions, inasmuch as under these provisions relating to technical evidence both parties will have to disclose their technical case at the same time? That is quite the reverse of the situation which the hon. Gentleman has described.

It is not entirely the reverse because, save in the case of an alibi warning, the defence in a criminal trial is under no obligation nowadays to reveal its hand. Under what is intended here—that is, a reciprocal exchange of expert evidence—the principle remains the same. Indeed, if one thinks not so much of advantage given to one side alone but of the undesirability of stating established positions before trial, injustice will be done to both sides in future in that they will be prevented from handling their evidence in the way which the progress of the case would perhaps justify.

I apologise to the Committee for having missed the opening of the debate. I was glad to be here, however, to listen to the closely reasoned speech of my hon. Friend the Member for Orpington (Mr. Stanbrook), although I disagreed with the views which he advanced.

That practice will not be obviated by the Clause. Proofs will still be exchanged, evidence will be disclosed, but the list of supplementary questions and the answers thereto will remain with the professional advisers, with the result that it may well be necessary for evidence to come out in court in just the same way, with just the same fishing questions being asked. All we are doing is adding to the paper, without reducing the actual amount of court work.

I take that point, but, with respect, that is exactly what High Court masters are there for. One of the advantages of the procedure envisaged in the Bill is that it will put into the hands of High Court masters the responsibility of seeing that just that kind of evidence is agreed, so that large amounts of exploratory cross-examination will become unnecessary.

Is it not even worse? I appreciate that the hon. Member's point comprehended the situation but is it not even worse where the evidence comes from the defending side after the plaintiff has called his case, having no idea that this kind of technical question will be raised?

I accept what the hon. and learned Gentleman has said. In particular, the difficulty that arises here is that our forms of pleading tend to be overtly simplistic, though in fact highly sophisticated, as opposed to the normal form of pleading which exists in most Continental jurisdictions. After what the House has suffered within the last few weeks I do not want to go into the minuitiae of the differences between our law and that of some of our nearest Continental neighbours. But one great advantage that many Continental countries seem to have is that the pleading is a straightforward narrative setting out just what the plaintiff's case is, just what the dependant's case in and just what the facts are that support each.

It is right to acknowledge that Clause 2 contains the one recommendation about which there was a division of opinion in the Law Reform Committee, and it is, therefore, right that there should be some discussion about the two opposing views.

I chose my words carefull. The word I used was "simplistic" and not "simple". I intended to convey that the use of a few words, overtly simplistic as such, could in fact cover many of the matters that were complained of by the hon. and learned Member not of disclosing the basis of what the real case was but of using the time-honoured ritual used in the courts for many years.

I take the point and I am merely underlining my hon. Friend's approach, that we do not work in a practically simple, simplified or simplistic world in the courts and that, as this Measure will help to make it simpler, all hon. Members of this Committee will welcome it.

This is the most controversial Clause in the Bill, and it is only right that I should say a word or two in view of the forceful minority report.

"In our opinion, if it is necessary to do anything to ensure that the issues are properly limited and defined before trial, the proper way to do this is to encourage the giving of full particulars of pleadings."

Would the hon. and learned Gentleman agree that one area in particular with regard to medical evidence where this aspect will be of great importance is in itself a sometimes rather obscure area—where judges have to determine whether a plaintiff who is suffering from an undoubted medical condition for which no immediate medical reasons can be found is a malingerer or is suffering from something which has become so real in his own mind that it is a genuine cause for damage?

I agree that that kind of situation is familiar to practitioners and judges—since so many cases these days are personal injury cases—and that it is among the most difficult of all. It seems to me to be of every advantage that the cards should be on the table for all to see when the trial starts and not be revealed in the course of it.

I apologise for having arrived at such a late stage. I hope that I shall be acquitted of any apparent discourtesy, but the delay is because I have been applying the rules of evidence and the like elsewhere. My late arrival is a great disadvantage, which I recognise at once, in that I do not know what has been said thus far, so if I am making a point or points which have already been made frequently, I apologise to the Committee for the inconvenience.

The Clause is declaratory of the existing common law as to the admissibility of opinion evidence. It also extends the admissibility of such evidence in the case of non-expert evidence.

My hon. Friend said that the Clause was declaratory of the common law relating to the evidence of expert witnesses. That is almost entirely the case, and it certainly is the case that the most important change made by the Clause is that in subsection (2), dealing with the admissibility of en passant expert opinions by witnesses giving their account of relevant facts.

I am extremely glad that the Solicitor-General has clarified that, because it is a matter of great importance. The only thing that concerned me about the Clause was that the principle contained in the clarification note by the Solicitor-General has not been extended to evidence generally. The 17th Report of the Law Reform Committee points out that what is described as the ordinary man when giving evidence is frustrated if he is confined within the narrow bounds of our rules of evidence and finds it extremely difficult to give a spontaneous account of events which he has seen or heard without in the course of it expressing some opinion such as that the child ran out and the defendant did not have a chance to avoid hitting her.

I agree that the Clause is relatively innocuous, but I should like to ask a question about it. Does it mean that in future it will be admissible for any witness in a civil case, for example, involving an accident, to say that someone present at the scene was drunk? Heretofore I think that such a statement of opinion by a lay person would not have been admissible; he would have been required only to say whether the person concerned was staggering about, whether his eyes were glazed, whether his speech was thick and so on. In other words, evidence would be produced in a factual way which, to anyone listening, would be 99 per cent. conclusive of the drunkenness of the person concerned. I understand that that is the present position.

The courts apply some common sense in these matters. When the court hears a witness say "He was drunk", the court and everyone else knows that the witness means he saw that the man appeared to be unsteady on his feet and gave all the appearances of being drunk. As in the case I described of the road accident, the witness who says he could not have avoided the accident means that he did not have sufficient time as the vehicles were too close. As I see it, we have been discussing these examples on the same footing, and the short answer to my hon. Friend is "Yes, that would be allowed".

Some interesting questions have been raised by my hon. Friend. I shall not oppose this Clause either. However, life is not quite so simple as my hon. Friend suggests on this or any other point. We may find that a number of entirely new and interesting questions arise. At present, if a question which is asked is the very question that the judge has to decide, or one of those questions, it is inadmissible for that reason. In future, it will not be inadmissible for that reason. It will be admissible provided that it is a question that the expert is qualified to answer. So we shall have the interesting question: what is the witness's qualification, and does his qualification cover an expertise which is relevant in answering that question?

The Clause will interest anyone who has studied the fascinating subject of private international law. It is designed to facilitate the proof of foreign law in English courts. Foreign law has always been treated as a matter of fact which has to be proved like any other question of fact. The Clause provides that a finding of foreign law, if reliably recorded in citable form should be admissible in subsequent civil proceedings as prima facie evidence that the foreign law is in accordance with that finding. At present it cannot be inferred from previous decision with the result that it has to be proved over and over again in each separate case. This is expensive and time-consuming. The previous finding is not to be regarded as conclusive, because one may always suppose that it may have been wrong or, alternatively, that the foreign law may since have been changed.

Can my hon. Friend tell us what is meant by lines 2 and 3 on page 4 of the Bill which refer to a person

"who is suitably qualified…on account of his knowledge or experience…competent to give expert evidence"?

"is suitably qualified to do so on account of his knowledge or experience".

The court would begin by interrogating the witness as to his qualifications and would discover whether the expert was a member of the bar of the foreign country or whether he had academic qualifications as a professor in a university. The latter point provides the key. The old rule was that a person had to be qualified to practise. The new rule will apply also to a person who is not a practitioner but who has expert academic knowledge of the law concerned. I hope that that is a sufficient answer to my hon. and learned Friend the Member for Southport (Mr. Percival).

I support the Clause entirely. It will make an extremely useful contribution to simplifying our proceedings and to the saving of cost. I want to raise two points on it.

It is curious that the Law Reform Committee accepted the idea that evidence of foreign law need not be given by someone who was a professionally qualified lawyer in the country concerned. The door is thereby opened to all sorts of abuses, subject only to the judge who has to satisfy himself that the individual concerned

"is suitably qualified…on account of his knowledge or experience"

When my hon. Friend the Member for Orpington (Mr. Stanbrook) began his observations, I confess that I was beginning to lose a degree of faith in his reputation as a zealously reforming character. When he was saying that he found the Clause "somewhat curious," I was beginning to find his anxieties about the activities of fraudulent characters in almost every context of the civil law somewhat curious.

As the hon. and learned Gentleman is aware, it is open to either side to dispute such a matter under the Clause. It seems odd that one can cite American reports, for example, and show what the law of this country is or should be, but that one cannot cite them to show what American law is.

That is precisely the point, and I think the hon. and learned Gentleman has led himself astray because the state of foreign law is, except where otherwise provided, a matter of fact; one can cite American reports to see the kind of arguments that commend themselves to American courts, which we may or may not like to "buy" in our courts. There is no reason why one should not look at this matter with a view to seeing whether this process can be improved from the point of view of the provisions contained in this Measure.

"who is suitably qualified to do so on account of his knowledge or experience".

The Clause merely defines "civil proceedings" and "court". The test of civil proceedings is whether they are proceedings in which the strict rules of evidence apply. Thus, arbitrations and references would be included, but not any form of criminal proceedings.