Report 109 (2005) - Expert Witnesses - Law Reform Commission : Lawlink NSW

8.1 This chapter presents and explains the detail of the proposed amendments to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) designed to implement the recommendations in Chapter 7 relating to joint expert witnesses and court-appointed experts. A draft of the proposed amendments has been settled by the parliamentary counsel.

8.2 The present format of the UCPR relating to expert evidence is as follows. Part 31 includes the following divisions:

Appendix B contains the relevant existing provisions of the UCPR (Part 31, Evidence, Division 2, Experts called by parties, and Division 3, Experts appointed by the court).

Appendix C contains the Commission’s proposed amendments to the UCPR (including the renamed Division 2, Experts engaged by the parties individually) as settled by the parliamentary counsel.

Appendix D contains the proposed amendments to the existing Division 3, renumbered as Division 4, Experts appointed by the court, as settled by Parliamentary Counsel. It shows the proposed amendments superimposed on the division in its present form.

Appendix E is a table arranged by topic. It compares and contrasts the existing provisions relating to court-appointed experts, the proposed amendments to those provisions, and the new provisions relating to joint expert witnesses.

8.5 Under this proposed provision, in contrast with the rules relating to court-appointed experts, the parties have, as is appropriate, the control and management of the process once an order is made for a joint expert witness. They have primary responsibility for selection of the expert. They engage the expert, supply the expert with a copy of the code of conduct, instruct the expert, clarify the expert’s report if necessary by written questions, and decide whether the expert’s report should be tendered in evidence. The court becomes involved in the process only if there is a need to do so. As is appropriate, other expert evidence on the question or questions submitted to the joint expert witness is proscribed except by leave.

8.6 Under this proposed rule, an order for a joint expert witness can be made at any stage in the proceedings. It is envisaged, however, that such an order would be made as early as possible. If one or both parties have instructed their own experts before such an order is made, the value of such an order is reduced. The Civil Procedure Act 2005 (NSW) and the UCPR contain provisions which recognise the importance of case management as a tool for increasing the efficiency of the court system and reducing the cost of litigation.³ There is an obvious advantage in tailoring case management procedures to enable orders for joint expert witnesses to be made at the earliest possible time.

8.7 The parties will usually agree on the selection of a joint expert witness once an order for a joint expert witness is made. Experience in England indicates that failure to agree on the selection will be rare. If the parties do fail to agree, the selection is by, or as directed by, the court. The court could then, for example, direct that the witness be a person nominated by the relevant professional body, with final approval by the court.

8.9 So far as is practicable, no party should have an advantage over another, by knowing in advance what a prospective joint expert witness will say. Under the proposed rule, the parties are prohibited from asking an expert under consideration for selection as a joint expert witness for the expert’s opinion on the matter in question, and are to notify each other as to whether there has been any infringement of that prohibition before the engagement is finalised. The professional obligations of the parties’ legal representatives would be a strong safeguard. In the unlikely event of a breach of the rule being discovered after the expert was engaged, the aggrieved party could apply to the court for replacement of the selected expert.

8.10 An undesirable advantage could arise in ways not covered by the proposed rule. The expert’s views about the matter in question might be in the public domain and yet be known to only one side, or the expert’s position might be known privately to only one side from previous contact. It is not possible to eradicate the potential for unfair advantage arising in such ways. The proposed rule goes as far as we think is practicable in minimising potential unfairness of this kind.

8.11 The proposed rule requires parties to agree on the instructions to be given to the joint expert witness, including the question or questions for consideration and the assumptions of fact to be made by the expert. If they fail to agree, they are to give separate instructions to the expert, and each must serve a copy of their instructions on the other or others.

8.12 The rule envisages that, if the parties are at odds about the questions which arise for opinion or as to the true facts of the case, the expert will provide a report which responds to the respective alternatives. This is no different in principle from the way an expert is examined in court in the ordinary course: the questions for opinion which each party regards as the correct questions are explored in examination or cross-examination and, for that purpose, the facts which each party contends for respectively are put as assumptions. A practical difference under the proposed rules is that the witness has the opportunity of considering such alternatives on notice and of giving a considered response to them.

8.13 Under the proposed rule, a joint expert witness may ask the court to make directions to assist the expert witness in carrying out his or her functions. This might arise where there are conflicting instructions from opposing parties, or where the instructions are inadequate, or where the expert believes the brief is outside his or her area of expertise. The proposed rule could also assist a joint expert witness to resolve any perceived conflict between the expert’s duty to the court or professional obligations and what the expert is asked to do.

8.14 It is envisaged that the rule would be construed broadly, allowing the expert to seek the court’s assistance in relation to any problem that might arise.

8.15 To minimise unnecessary applications, the proposed rule provides for advance notice to the parties of an intention by the expert to apply for directions. That is to ensure that the parties’ legal advisers have a reasonable opportunity to resolve the expert’s difficulty, if they can, without the expert having to go to the court for assistance.

8.16 The NSW Supreme Court has stated that the court should not “without exceptional cause” exercise its discretion to allow the admission of expert evidence absent the required acknowledgement. The code of conduct was promulgated with the intent that only reports by experts who have proceeded in accordance with the norms of conduct found in the code should be relied upon and may be admitted into evidence.⁴ These observations apply with equal force in relation to the joint expert witness.

8.17 Accordingly, the proposed rule provides that the parties (or one of them, as may be agreed) are to supply the joint expert witness with a copy of the code of conduct. Written or oral evidence from the witness is then made conditional upon the witness’s written undertaking to be bound by the code, as in the case of an expert witness engaged by the parties individually.⁵

8.18 The joint expert witness is to send his or her report to the parties. This is appropriate. It is then for the parties, in their respective interests, to decide what use is to be made of the report. By contrast, in the case of a court-appointed expert, the report appropriately goes to the registrar (who sends copies to the parties), and the report goes into evidence unless the court orders otherwise.⁶

8.19 Where an order for a joint expert witness is made, the parties do not have the opportunity of conferring with the expert. The proposed rule gives the parties a mechanism for clarifying the expert’s report before trial by putting questions to the expert in writing. This may avoid the witness having to be called to testify at the trial. It may avoid a party having to apply for leave to adduce evidence from another expert witness.

8.20 The rule relates to clarification. It is not intended that it should be used to cross-examine the witness, or to require the witness to carry out new investigations or tests, or to expand significantly on the witness’s report. If the joint expert witness finds that the questions are onerous or require more than clarification of the report, the witness can apply to the court for a ruling in exercise of a joint expert witness’s entitlement to apply for directions.⁷

Proposed rule 31.27H: tendering reports and answers to questions; examination in court

8.21 The concept is that the joint expert witness, unlike the court-appointed expert, is the parties’ witness. Accordingly, the parties should be free to make whatever use they wish of the witness’s evidence. Under the proposed rule, any party affected may tender the joint expert witness’s report. Similarly, any party affected may tender any one or more of the witness’s answers to questions, irrespective of which party has asked the questions. It is envisaged that one party might tender the report and that another party might tender an answer to written questions.

8.22 It is intended that the rules of evidence and other procedural law should continue to apply, including acceptance by the witness of the code of conduct.⁸ Accordingly, tendering the report and answers to questions is made subject to any contrary order of the court.

8.23 We have not made the proposed new division inapplicable to trials with a jury. (The existing rules relating to court-appointed experts are not so limited either.) It is likely that, at a jury trial, neither a joint expert witness’s report nor the witness’s answers to questions would be admitted into evidence before the jury in written form. The evidence would be led orally. The tendering of the report and of answers to written questions being subject to other order of the court, the proposed rule would accommodate that situation.

8.24 Under the proposed rule, any party affected is entitled to examine the witness in the form of examination in chief, cross-examination or re-examination as the court may direct. In that regard, we have in mind that it may be inappropriate to allow a party with a favourable opinion from the witness to cross-examine, and re-examination should be allowed as may be appropriate.

8.25 The proposed rule provides that no party is allowed to adduce expert evidence individually on any question submitted to a joint expert witness for opinion except by leave.

8.26 The proposed rule provides that the parties are jointly and severally liable for the joint expert witness’s fees, but the court may direct when and by whom the fees are to be paid. The rule is also subject to the court’s overarching powers in relation to costs. Discretionary orders can be made.

8.27 These are the proposed amendments to the division, Experts appointed by the court. This is Division 3 of Part 31 in the existing UCPR. It would become Division 4 if our recommendation is accepted for the introduction of a new Division 3 providing for joint expert witnesses.

8.28 The proposed amendments do not make any radical change to the division. They are designed to maintain consistency with the purposes for which an expert may be appointed by the court.

8.29 The existing rule provides for selection of the court-appointed expert by the parties affected, by the court or in a manner directed by the court.

8.30 It is not appropriate that selection by the parties should be put forward as the first option in this way. The expected method of selection of an expert appointed by the court would be for the court itself to make the selection. It would only be if the court wished to have assistance in the selection process that the expert would be selected by the parties or as the court otherwise directed. The proposed amendment reflects these considerations. If the court wished the parties to assist in making the selection, it could so direct.

8.31 As in the case of our proposed provision for joint expert witnesses, an order of the court should not result in an expert being engaged without the expert’s consent. We have, accordingly, proposed the same limitation in relation to court-appointed experts.

8.32 The existing rule carries the above heading. The rule provides that the court-appointed expert may be cross-examined by any party and that the expert must attend for cross-examination if so requested by the registrar or by a party.

8.33 As in the case of our proposed joint expert witness, cross-examination may not always be the appropriate form of examination. We have accordingly proposed an amendment which would provide for examination in such form as the court may direct, as we have done in relation to joint expert witnesses.

8.34 A change in the wording of the existing heading presently carried by the rule is similarly proposed, the heading to read “Examination of expert”.

8.35 The existing rule provides that other expert evidence may not be adduced except by leave. That is not appropriate in this connection. The appointment of an expert by the court would not ordinarily be inconsistent with the parties calling expert evidence of their own.

8.36 By contrast, an automatic prohibition against calling other expert evidence (subject to leave) is appropriate in the case of a joint expert witness, and we have so provided. That is because the objectives there include avoidance of a multiplicity of expert witnesses and the substitution of an independent expert for the experts who would otherwise be called by the parties.

8.37 The amendment we propose in relation to court-appointed experts removes the automatic prohibition against adducing other expert evidence (subject to leave), but allows for an order to be made prohibiting other expert evidence if there is some special reason for doing so.

Table of contents

3. See generally Civil Procedure Act 2005 (NSW) Pt 6, particularly s 56-60, which are reproduced in Appendix A of this report.

4. Commonwealth Development Bank v Cassegrain [2002] NSWSC 980. But compare Barack Pty Ltd v WTH Pty Ltd [2002] NSWSC 649; Langbourne v State Rail Authority [2003] NSWSC 537; Jermen v Shell Co of Australia Ltd [2003] NSWSC 1106.