here - Gordon & Jackson

Introduction
In considering expert evidence it is useful to remember what the rules of evidence are and
why they exist. They are basically procedural rules which provide a framework within which
people can settle their disputes and the law can be enforced. Disputes can be settled in a
variety of ways, including battles, drawing straws, mediation, arbitration and court
determination. I recently listened to a very entertaining after-dinner speech by an American
judge who suggested that given the current state of the US Court system (where patent
litigation is tried before juries) we should revert to a Mad Max beyond Thunderdome system
of arbitrary and rule-free determination of disputes - "bust a deal and face the wheel", "two
men enter one man leaves".
Thankfully the rules of evidence work in a slightly different forum. They are part of a system
whose ultimate aim is to place before an impartial tribunal only the facts that are relevant to
the dispute. The so-called best evidence rule is a reminder of the ideal - the tribunal, as far
as possible, should hear direct evidence of all relevant matters and nothing else, and then
make its decision. So what are the rules and how do they apply in practice?
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