Appendix C: Draft amendment rules

Updates and background for this project (Digest)

UNIFORM CIVIL PROCEDURE RULES (AMENDMENT NO *) 2005

Schedule 1 Amendments

(Rule 3)

[1] Part 31, Division 2, heading

Omit the heading. Insert instead:

Division 2 Experts engaged by parties individually

Insert before rule 3 1.18:

31.17A Expert evidence not to be adduced without leave

Despite any other provision of these rules, a party to proceedings may not tender an expert's report as evidence in the proceedings, or call an expert witness to give opinion evidence in the proceedings, except by leave of the court.

Insert after rule 31.18 (4):

 

(5) Without limiting subrule (3), the expert's report is not admissible unless:
 
(a) an affidavit as to the fees paid and payable to the expert, as at the date on which the report was received by the engaging party, was served on each party affected at the same time as the report was served on that party, and

(b) a further affidavit as to the fees paid and payable to the expert, as at the date occurring 7 days before the date of the hearing at which the report was tendered in evidence, was served on each party affected on or before the date of that hearing.

 
(6) An affidavit referred to in subrule (5) must include the following particulars:
 
(a) the amounts that are, or have been, payable to the expert in relation to:
 
(i) the expert's preparation of the report and

(ii) any examination, inspection, experiment or other thing done by the expert for the purpose of providing the expert's report, and

(iii) the expert's attendance at conferences with the engaging party in relation to the proceedings, and

(iv) the expert's attendance at court as a witness in the proceedings,

 
or the manner in which, and the rates at which, those amounts are to be calculated,

(b) the amounts that have been paid to the expert in relation to each of the matters referred to in paragraph (a),

(c) the amounts referred to in paragraph (a) as to which the expert has agreed to defer payment until after the conclusion of the proceedings.

Omit rule 3 1.19 (6)

Insert after Division 2:

 

Division 3 Experts engaged by parties jointly

31.27A Definitions

In this Division:

code of conduct means the expert witness code of conduct in Schedule 7.

expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence.

party affected means a party who may be affected by the court's decision with respect to a question that has been referred to an expert for inquiry and report.

31.27B Selection and engagement

(1) If a question for an expert arises in any proceedings, the court may, at any stage of the proceedings, order that an expert be engaged jointly by the parties affected.

(2) An expert engaged pursuant to such an order is to be selected by agreement between the parties affected or, failing agreement, by, or in accordance with the directions of, the court.

(3) A person may not be engaged as an expert under this rule unless he or she consents to the appointment.

(4) If any party affected has a person under consideration for selection as an expert, or knows that another party has a person under such consideration, the party affected must not, prior to the selection, communicate with the person for the purpose of eliciting the person's opinion as to the question or questions concerned.

(5) A person may not be engaged as an expert in relation to any proceedings unless each of the parties affected has notified each of the other parties affected:

 
(a) as to whether or not the notifying party has, in anticipation of the engagement, communicated with the person for the purpose of eliciting the person's opinion as to the question or questions concerned, and

(b) if so, the substance of those communications.

 
31.27C Instructions to expert

(1) The parties affected must endeavour to agree on written instructions to be provided to the expert concerning the questions arising for the expert's opinion and concerning the assumptions of fact to be made by the expert.

(2) If the parties affected cannot so agree, they may instead instruct the expert separately in writing and, in that event, must forthwith serve a copy of the instructions on each other party affected.

31.27D Expert may apply to court for directions

(1) The expert may apply to the court for directions to assist the expert in the performance of the expert's functions in any respect.

(2) Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.

(3) Not less than 7 days before sending such a request to the court, the expert must send a copy of the proposed request to the parties by whom he or she was engaged.

31.27E Code of conduct

(1) As soon as practicable after an expert is engaged, the parties affected, or one of them as they may agree, must provide the expert with a copy of the code of conduct.

(2) A report by an expert may not be admitted in evidence unless the report contains an acknowledgment by the expert that he or she has read the code of conduct and agrees to be bound by it.

(3) Oral evidence may not be received from an expert unless the court is satisfied that the expert has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.

31.27F Expert's report to be sent to parties

The expert must send a signed copy of his or her report to each of the parties affected.

31.27G Parties may seek clarification of report

(1) Within 28 days after receiving the expert's report and before the report is tendered in evidence, a party affected may, by notice in writing served on the expert seek clarification of any aspect of the report.

(2) Unless the court orders otherwise, a party affected may serve no more than one such notice.

(3) Unless the court orders otherwise, the notice must be in the form of a series of questions, no more than 10 in number.

(4) The party serving the notice must serve a copy of the notice on each of the other parties affected.

(5) Within 28 days after receiving the notice, the expert must send a signed copy of his or her response to the notice to each of the parties affected.

31.27H Tendering of reports, and of answers to questions, and examination of experts

(1) Subject to rule 31.27E(2) and unless the court orders otherwise, the expert's report may be tendered in evidence by any of the parties affected.

(2) Unless the court orders otherwise, any or all of the expert's answers in response to a request for clarification under rule 31.27G may be tendered in evidence by any of the parties affected.

(3) Unless the court orders otherwise, any party affected may examine the expert orally.

(4) Such an examination is to be by way of examination in chief, cross-examination or re-examination, as the court may direct.

(5) The expert must attend court for examination if so requested on reasonable notice by a party affected.

31.271 Prohibition of other expert evidence

Except by leave of the court, a party to proceedings may not adduce evidence of any expert on any question arising in proceedings if an expert has been engaged under this Division in relation to that question.

31.27J Remuneration of expert

(1) The remuneration of an expert is to be fixed by agreement between the parties affected and the expert or, failing agreement, by, or in accordance with the directions of, the court.

(2) Subject to subrule (3), the parties affected are jointly and severally liable to an expert for his or her remuneration.

(3) The court may direct when and by whom an expert is to be paid.

(4) Subrules (2) and (3) do not affect the powers of the court as to costs.

Omit the heading. Insert instead:

 

Division 4 Experts appointed by the court

Omit rule 31.29 (2). Insert instead:

 

(2) The expert may be a person selected by the court or a person selected in a manner directed by the court.

(3) A person may not be appointed as an expert under this rule unless he or she consents to the appointment.

Omit the rule. Insert instead:

 

31.32 Examination of expert (cf SCR Part 39. rule 4; DCR Part 28A. rule 4; LCR Part 38B, rule 4)

(1) Unless the court orders otherwise, any party affected may examine the expert orally.

(2) Such an examination is to be by way of examination in chief, cross-examination or re-examination, as the court may direct.

(3) The expert must attend court for examination if so requested on reasonable notice by the registrar or by a party affected.