We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
26/01/2026
By James Bentley and Alice Reeves
What is the difference between factual evidence and opinion evidence? When is a witness of fact entitled to give an opinion in evidence? How do the rules of evidence operate when the Defendant serves statements from clinicians in support, giving their own opinions, despite not being Part 35 reports?
This article seeks to explain the difference between factual and opinion evidence, what is and is not allowed, and what steps can be taken if the line is crossed.
There is an important distinction between evidence of fact and opinion evidence, albeit sometimes it is difficult to distinguish between the two. An example might assist. Imagine a case involving an alleged failure to diagnose sepsis. In that case there may be a statement from the clinician who is being criticised, and that statement may say something like:
‘When I saw the patient, whilst she had a temperature, there was no reason suspect sepsis.’
The phrase ‘she had a temperature’ is more fact that an opinion, but the phrase ‘there was no reason to suspect sepsis’ is certainly more opinion than fact. Indeed, it is probably the key issue in your case. There will be breach of duty experts on both sides and yet on the Claimant side you will now be faced with another clinician giving evidence as to what was or was not reasonable. And yet, that clinician is entitled to give his or her opinion, but why?
The admissibility of opinion evidence is governed by the Civil Evidence Act 1972 (hereon ‘the 1972 Act’).
Section 3 of the Act states that:
(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3) In this section “relevant matter” includes an issue in the proceedings in question.
Going back to the above example and looking at it through the lens of Section 3, saying that ‘there was no reason to suspect sepsis’ can be seen as an attempt to convey a relevant matter (i.e., were there reasons to suspect sepsis – the key issue in proceedings) that was personally perceived by the said clinician. It is therefore admissible opinion evidence. Furthermore, one has to be realistic and not artificial about such things. Whilst it might cause difficulty for those representing Claimants in proving negligence, in the words of Mr. Justice Holman in ES v Chesterfield, North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284:
‘It is, in my view, not only inevitable but appropriate, for no professional person can explain or justify his or her actions and decisions save by reference to his or her training and experience.’
Things are of course rarely as straightforward as the above example. It is often the case that one is faced not just with the single statement from the clinician being criticised, but perhaps another (or several) more statements from clinicians who whilst they did not deal with the Claimant directly, would have treated him or her but for the negligence, and/or (more broadly) were employed by the trust at the time. If they were to say ‘there was no reason to suspect sepsis’ would that be admissible?
Clinicians who would have treated the Claimant ‘but for’ the negligence:
Having proved some breach of duty, the Claimant will then have to prove what would have happened but for the accident. This is sometimes referred to as ‘the Bolitho question’, and is quite straightforward (at least in principle):
a) What would have happened in fact, and why?
b) Would what have happened be considered negligent?
If the further statements are from the pool of doctors that would have treated the Claimant, then their evidence on what they would have done, what would have happened generally, and why (which will necessarily involve opinion evidence) is perfectly admissible.
It is true that the question of what would have happened is, given its hypothetical nature, to some degree an opinion. However, that opinion is only being expressed as a way of conveying the question of fact (i.e., causation) and because those clinicians were there at the time (i.e., they have ‘personal perception’) they are entitled to give that evidence. Furthermore, as Mr. Justice Holman observed, in those circumstances it is artificial to pretend that evidence of fact and opinion either could or should be separated from one another.
Clinicians who would not have treated the Claimant, but were employed by the relevant institution:
Again, it is not unheard of to receive evidence from those who neither treated the Claimant nor would have treated the Claimant but for the negligence. They can still give some evidence, but that will be limited to the systems and policies that were in place at the time.
So, going back to the example, you might have somebody speaking to the system that the unit had in place in time for dealing with sepsis in your particular circumstances. They may say something like ‘the system at the time would be that we would look for x/y/z, and if the patient had two of those three criteria then this is what our policy says we should have done.’ If the evidence were limited to that, and to explanations of how the system would work in practice, then that evidence is likely admissible.
However, it is important to pay particular attention to the wording used. If the above went onto say that, ‘and under our system at the time it is unlikely that the Claimant would have been considered at risk of sepsis’, then that is inadmissible. The ‘systems’ witness was not dealing with the Claimant, nor would have been one of the pool of doctors treating him or her.
Another important point to note is whether or not the witness was employed on the unit at the time. That can often be the case where the clinicians involved were working as locums. Indeed, whilst there is no agreed estimate, there is broad agreement that the number of locums working in the NHS is high and is on the rise, and so that is a situation that many representing Claimants are increasingly facing.
In the case of the above, the systems evidence is admissible because it comes from that witnesses’ direct knowledge. They have that direct knowledge because they were employed by the relevant institution. This is where the Practice Direction to CPR 32 comes to the fore and is worth remembering. CPR 32.8 makes it clear:
‘A witness statement must comply with the requirements set out in Practice Direction 32.’
Paragraph 18.2 of the Practice Direction requires that:
A witness statement must indicate:
(1) Which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief; and
(2) The source for any matters of information or belief.
It follows that if the witness was working on the unit at the time, in whatever capacity, much of the evidence will come from his or her own knowledge. However, if not working on the unit, then it follows that any statements about the systems will be either from information and belief. That might be from policies that were current at the time, conversations with colleagues etc. However, as per the Practice Direction, the source of that information must be stated, and if it is not, then the consequences may be severe.
The (extempore) Judgment of Master Sullivan in Man v St. George’s University Hospital NHS Foundation Trust [2024] EWHC 1304 (KB) is a neat example of all the above principles being applied in practice, as well as an important reminder of how important the pleadings are when it comes to considering the above issues.
In that case, the Claimant had alleged that she presented to the nurse practitioner in ‘extreme pain’. That was not made explicit within the medical records but nevertheless was her case. Furthermore, one of the allegations was that the Nurse had failed to give consideration to a soft tissue infection being a cause of that pain.
The Defendant responded that:
That all seems straightforward. However, the Defendant then served a statement from Nurse Jabeen saying that:
‘I can see that the Claimant states…that she told me she was in extreme pain. I cannot recall this phrase being used and if she was in pain, I would have administered pain relief….Additionally, if she had been visibly distressed from pain, then I would have recorded this within the notes. But in fact, my record says she was not distressed.’
The Claimant’s position was that there was no denial of extreme pain within the pleadings, and insofar as there was a denial, then the Defendant was obliged to set out a different version of events (CPR 16.5 (1) and (3)), which they had not done. Furthermore, this was not a case, it was said, where there was a good reason for not admitting nor denying, since they could have spoken to the Nurse, and there was no suggestion that they were unable to do so. If the Defendant wished to put the issue of pain in dispute then it would require an amended defence, and without an amended defence the Nurse’s evidence was inadmissible because it did not go to a matter that was in issue.
The Master agreed. The complaint that the aversion of extreme pain fell outside of the Defendant’s knowledge was not a proper pleading. Had the Defendant spoken to the nurse then they would have been able to answer the question and put it in issue. The language of non‑admissions is only for where a Defendant can truly not admit nor deny, and is not an excuse to provide, ‘a stonewalling defence with indiscriminate non‑admissions.’ (see Henderson LJ in API v Swiss Post International (UK) Ltd [2019] EWCA Civ 7).
a) In order for any witness to give opinion evidence, it must be an issue that is in dispute. If there is a non-admission, then the Defendant is not entitled to lead evidence on that point. It is important to check the pleadings. One may want to think about the value of putting in a Part 18 request, or whether tactically it makes more sense to not do so.
b) Those who are being criticised are entitled to give opinion evidence on why they did what they did, as well as the systems and policies in place at the time, and how those systems and policies worked in practice.
c) Those who would have been one of the pool of clinicians who would have seen and/or treated the Claimant but for the negligence can give evidence on what they would have done and why. Again, they too can give evidence on systems and policies as per above.
d) Those who are neither of the above can give evidence on systems and policies in place at the time. However, they must state whether that is from their own knowledge, information or belief. If they were not employed on that unit at the time, one cannot assume that they have direct knowledge of the systems etc., and so it is imperative that they cite where their information or belief comes from.
e) If the evidence that has been served does not conform to the broadly stated principles above, then there may be some merit in applying to strike out parts of that evidence. If that is going to be done, then it is important to make clear by way of redacted statements which sections you are applying to strike out, and which you are not.
f) If successful in that application, then it might be worth thinking about how that impacts the expert evidence (if at all).
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