A party challenging the assumptions underlying an expert's opinion is not required by the rule in Browne v Dunn to put contradictory material to the expert in cross-examination before tendering that material in its own case. The party may instead tender independent evidence to undermine the factual foundation on which the expert's assumptions rested. A discretionary refusal to admit evidence under s 135 of the Evidence Act 1995 is fundamentally flawed if the trial judge does not assess the probative value of the evidence and undertake the required balancing exercise.
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