Appendix D: UCPR provisions on court-appointed experts with proposed amendments

Updates and background for this project (Digest)

31.28 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 the court has referred to an expert for inquiry and report.

(1) If a question for an expert arises in any proceedings the court may, at any stage of the proceedings:

(a) appoint an expert to inquire into and report on the question, and

(b) authorise the expert to inquire into and report on any facts relevant to the inquiry and report on the question, and

(c) direct the expert to make a further or supplemental report or inquiry and report, and

(d) give such instructions (including instructions concerning any examination, inspection, experiment or test) as the court thinks fit relating to any inquiry or report of the expert.

(2) The court may appoint as an expert a person selected by the parties affected, a person selected by the court or a person selected in a manner directed by the court. (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.

(1) A copy of the code of conduct must be provided to the expert by the registrar or as the court may direct.

(2) A report by an expert may not be admitted into 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 he or she 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.

(1) The expert must send his or her report to the registrar.

(2) The registrar must send a copy of the report to each party affected.

(3) Subject to rule 31.30 and unless the court orders otherwise, the report is taken to have been admitted in evidence in the proceedings when it is received by the court.

31.32 Cross-examination of expert (cf SCR Part 39, rule 4; DCR Part 28A, rule 4; LCR Part 38B, rule 4) Any party affected may cross-examine an expert, and the expert must attend court for examination or cross-examination if so requested on reasonable notice by the registrar or by a party affected. 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 a party affected.

31.34 Remuneration of expert (cf SCR Part 39, rule 5; DCR Part 28A, rule 5; LCR Part 38B, rule 5)

(1) The remuneration of an expert is to be fixed by the court.

(2) Subject to subrule (3), the parties specified by the court are jointly and severally liable to an expert to pay the amount fixed by the court the 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.

(1) In any proceedings, the court may obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings and may act on the adviser’s opinion.

(2) Rule 31.34 applies to and in respect of a person referred to in subrule (1) in the same way as it applies to and in respect of an expert appointed under this Division.