Appendix E: Joint expert witnesses and court-appointed expert witnesses
Updates and background for this project (Digest)
COURT-APPOINTED EXPERTS: EXISTING RULES
Objectives
To provide the court with such expert evidence as the court believes it needs and which would otherwise not be provided.
Whose witness?
The expert is appointed by the court and is the court’s witness. Existing rule 31.29(1).
Time of appointment
The appointment may be made at any stage of the proceedings. Existing rule 31.29(1). [In practice, any appointment is likely to be made well into the proceedings, even during the hearing.]
Who selects the expert?
The court may appoint an expert selected by the parties affected or selected by or in a manner directed by the court. Existing rule 31.29(2).
Consent of the nominee
No provision.
Party seeking out the expert’s opinion before the report
No such provision in the rules. [Such a provision is not required. The primary method of selection is by the court itself. If the court calls on the parties to assist in the selection, it can give whatever directions it deems necessary in that regard.]
Who instructs the expert?
The court instructs the expert as to facts to be assumed and as to the questions arising for expert opinion. Existing rule 31.29(1)(d).
Expert may apply for directions
No provision in the rules. [The court will manage the process as it thinks fit.]
Code of conduct
The expert is to be provided with the code of conduct by the registrar or as the court may direct. Existing rule 31.30(1). [Conformably with the court’s control over the process.]
The admissibility of the expert’s report and oral evidence is dependent on the expert’s agreement to be bound by the code. Existing rules 31.30(2) and (3). [As in the case of experts called by the parties individually.]
To whom is the report sent?
To the registrar of the court, who sends copies to the parties affected. Existing rules 31.31(1) and (2). [Conformably with the court’s control over the process.]
Written questions addressed to the expert by the parties
No provision. [Such a provision would not be appropriate; the expert is the court’s witness.]
What happens to the report and the response to questions?
Unless the court orders otherwise, the report is taken to be in evidence. Existing rule 31.31(3). [Because the court wants the evidence.]
Oral examination
Any party affected may cross-examine the expert, and the expert must attend court for examination or cross-examination if so requested by the registrar or by a party affected. Existing rule 31.32.
Prohibition of other expert evidence
A prohibition against calling other expert evidence on the question submitted to the expert, except by leave of the court. Existing rule 31.33.
Remuneration
The remuneration of the expert is to be fixed by the court. Existing rule 31.34(1)
The parties specified by the court are jointly and severally liable to an expert to pay the amount fixed by the court for his or her remuneration. Existing rule 31.34(2).
COURT-APPOINTED EXPERTS: PROPOSED AMENDMENTS
Who selects the expert?
In lieu thereof: The court may appoint an expert selected by the court or in a manner directed by the court. [This conforms with the court having control over the process.]
Consent of the nominee
Adding a provision for consent by the nominee. Subrule 31.29(3) added.
Oral examination
Unless the court orders otherwise, any party affected may examine the expert orally by way of examination in chief, cross-examination or re-examination as the court may direct. [The proposed amendment provides for the mode of examination allowed.]
Prohibition of other expert evidence
In lieu thereof: A provision that the court may order that a party may not adduce other expert evidence on the question submitted to the expert. [There should be no automatic prohibition.]
Remuneration
A minor cosmetic amendment to rule 31.34(2)
JOINT EXPERT WITNESSES: PROPOSED ADDITIONAL RULES
Objectives
To improve the quality of the expert evidence which would otherwise be adduced by the parties affected, by removing adversarial bias.
To reduce the costs that would otherwise be incurred by the parties adducing evidence from more than one and sometimes multiple expert witnesses.
To reduce the time for disposal of the proceedings.
Whose witness?
The joint expert witness is engaged jointly by the parties affected. Draft rules 31.27B(1).
Time of appointment
The order may be made at any stage of the proceedings. Draft rule 31.27B(1). [In practice, any order would be made as early as possible, before the parties had incurred the cost of preparing to adduce their own expert evidence.]
Who selects the expert?
The witness is selected by the parties affected or, failing agreement, by or in a manner directed by the court. Draft rule 31.27B(2). [This conforms with the parties affected having control over the process, once an order for a joint expert witness is made.]
Consent of the nominee
Provision for consent by the nominee. Draft rule 31.27B(3).
Party seeking out the expert’s opinion before the report
The parties are prohibited from eliciting a prospective joint expert witness’s opinion, and are to notify each other of any infringement. Draft rules 31.27B(4) and (5).
Who instructs the expert?
The parties affected jointly instruct the witness as to the facts to be assumed and as to the questions for expert opinion; or separately, if they cannot agree on the instructions. Draft rule 31.27C.
Expert may apply for directions
Application may be made for directions by the joint expert witness after notice of intention to do so is given to the parties. Draft rule 31.27D.
Code of conduct
The witness is to be provided with the code of conduct by the parties affected. Draft rule 31.27E(1). [Conformably with the parties’ control over the process, once an order for a joint expert witness is made.]
The admissibility of the witness’s report and oral evidence is dependent on the expert’s agreement to be bound by the code. Draft rule 31.27E(2) and (3). [As in the case of experts called by the parties individually and experts appointed by the court.]
To whom is the report sent?
Directly to the parties affected. Draft rule 31.27F. [Conformably with the parties’ control over the process, once an order for a joint expert witness is made.]
Written questions addressed to the expert by the parties
A party may, after the witness’s report has been provided, put questions in writing to the witness seeking clarification. Draft rule 31.27G.
What happens to the report and the response to questions?
The witness’s report may be tendered by any of the parties affected. Draft rule 31.27H(1. [The report might be tendered by one of them, or by more than one of them, or it might not be tendered at all.]
Similarly as to questions. Draft rule 31.27H(2).
Oral examination
Any party affected may cross-examine the witness orally by way of examination in chief, cross-examination or re-examination as the court may direct in such manner as the court may direct. Draft rules 31.27H(3) and (4). [As proposed for experts appointed by the court.]
The expert must attend court for examination or cross-examination if so requested by a party affected. Draft rule 31.27H(5). [Omitting any requirement for attendance by the court, the expert being the parties’ witness.]
Prohibition of other expert evidence
A prohibition against calling other expert evidence on a question submitted to a joint expert witness except by leave of the court. Draft rule 31.27I. [An automatic prohibition, subject to leave, is integral to the concept.]
Remuneration
The remuneration of the expert is to be fixed by agreement between the parties affected and the witness or, failing agreement, by or as directed by the court. Draft rule 31.27(1)J. [Fixing the witness’s remuneration will figure in the process of selection of the witness by the parties.]
Provisions for payment are substantially the same as for experts appointed by the court. Draft rule 31.27J(2).
