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

9.1 This chapter deals specifically with the law’s response to what the terms of reference call “inappropriate or unethical conduct” on the part of expert witnesses.

9.2 Although not expressly mentioned in the terms of reference, an important part of the law’s response is the formulation of codes of conduct for expert witnesses. In New South Wales, as seen in Chapter 3, a code of conduct forms part of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Since the code defines the obligations of expert witnesses, it forms the first topic considered in this chapter. Although the Commission agrees with the substance of the code, certain amendments are recommended.

9.3 Next, we consider a problem specifically mentioned in the terms of reference, namely the practice of expert witnesses offering their services on a “no win no fee” basis, for which we will use the term “contingency fee arrangements”. Although some submissions proposed that such arrangements be prohibited, the Commission’s recommendations embody a different approach, namely to ensure that the court is informed of such arrangements, and is able to consider, in light of all the circumstances, whether they should lead to the evidence being excluded, or given less weight.

9.4 Next, we consider mechanisms for the accreditation and accountability of expert witnesses for the purposes of court proceedings. While such schemes make a significant contribution towards the quality of expert evidence, the Commission does not recommend that there should be a rule giving preference to expert witnesses who are accredited, or that courts should maintain their own lists of accredited experts.

9.5 Next, we deal with the desirability of sanctions for inappropriate or unethical conduct by expert witnesses. The Commission considers that the existing sanctions are satisfactory, but recommends rules that would ensure that they are drawn to the attention of expert witnesses.

9.6 From early times, courts have on occasion expressed concerns about the quality and objectivity of expert witnesses, and the cases abound with judicial exhortations that experts should be unbiased, notwithstanding that they have been called by one party. For example, Lord Wilberforce said in 1981 that expert evidence presented to the court “should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation”.¹ More elaborate statements followed, in one case the court referring to:

9.8 A number of submissions made the point, with which the Commission agrees, that standards or codes of conduct alone will not eliminate adversarial bias.⁴ On the other hand, many submissions indicated that they had value, noting that codes of conduct were beneficial in providing a clear statement of the duties of an expert witness to the court.⁵ In addition, several submissions recognised that the statement of duties contained within the codes of conduct would assist expert witnesses in defending their impartiality against any pressure from clients or lawyers to arrive at a particular conclusion.⁶ Thus Dr Gary Edmond submitted:

9.10 The formulation of standards and codes of conduct should help experts understand and focus on their responsibilities to the court. Many experts seem uncertain about what is expected of them. A report by the Australian Council of Professions stated that it was not at all clear to most experts “to whom a duty was owed, and the claim on that duty by the party who pays the expert’s fee carries considerable weight”.¹⁰ Even if such uncertainties have diminished since that time, a clear and authoritative statement of the duties of expert witnesses is likely to assist the courts in the task of achieving the “just, quick and cheap” resolution of disputes.

9.11 In this section, the Commission comments on the specific provisions of the code of conduct set out in the UCPR, and suggests certain amendments. In the Commission’s view, the code is generally appropriate, although some amendments are suggested. Particular jurisdictions may wish to expand it in certain ways having regard to particular features of the jurisdiction.

9.12 The code of conduct appears as Schedule 7 to the UCPR. It is reproduced as Appendix F to this report. The UCPR provide that an expert witness, whether called by a party or appointed by the court, must be provided with a copy of the code.¹¹ The expert must then acknowledge in writing that he or she agrees to be bound by the code; otherwise the expert’s evidence is inadmissible, except by leave.

9.13 The purpose of the code of conduct is to bring home to expert witnesses what the court expects of them. The essential message, appropriately expressed in clause 2 (“General Duty to the Court”), is that the expert witness is expected to assist the court with impartial expert evidence rather than act as an advocate.

9.14 Clause 3 is entitled “The form of expert reports”. Most of its five sub-clauses deal with matters that can properly be regarded as specific applications of the general duty, and, in the Commission’s view are appropriately included in the code. Subclause (1) is the exception, as explained in the next paragraph. Subclause (2) requires that where some qualification is necessary to make the report complete or accurate, that qualification should be included. By subclause (3), where the opinion is not a concluded opinion because of such reasons as insufficient data, this must be stated. Subclause (4) requires the expert to provide a supplementary report where the expert has changed an opinion previously given. Clause 4 specifies that experts have certain duties in relation to experts’ conferences.

9.15 In the Commission’s view, the force of the code of conduct should not be diluted with provisions which are purely procedural in nature. With the exception of paragraph (d), clause 3(1) does not involve any ethical element. It follows that subclause (1), with the exception of paragraph (d), should be removed from the code.

9.16 The substance of subclause (1)(d) can readily be preserved in the code as the sole provision in subclause (1). However, there is no occasion to limit the operation of the provision to reports. The limitation should be removed. The provision would then apply equally to oral evidence by an expert.

9.17 The provisions removed from subclause (1), as recommended above, could be included in a rule or practice note relating to the form of expert reports and other procedural matters concerning expert witnesses. Litigants could be required to provide a copy of such rule or practice note to expert witnesses, together with the code of conduct.

9.18 The heading of clause 3, The form of expert reports, is apposite in relation to subclause (1) in its present form – most of which we recommend should be removed – but it is inapposite in relation to the balance of the clause. This heading should be, we suggest, Particular duties to the court.

9.19 The wording of subclause (5) of clause 3 could be improved. It is engagement simpliciter, rather than engagement by a party, which makes the code applicable by operation of clause 1. And the subclause is probably unnecessary anyway because an expert appointed by the court will have been “engaged”. However, for more abundant caution, the code should refer specifically to joint expert witnesses (as to which, see Chapter 7) and to experts appointed by the court, lest it be thought that the omission is deliberate. We recommend removal of subclause (5) and, in lieu thereof, inclusion of a new subclause in clause 1, worded as follows:

9.20 The phrase “no win no fee arrangements”, used in the terms of reference, refers to arrangements under which a party engages a person to act as an expert witness on the basis that the person will be paid a fee only if the party is successful in the proceedings. Such arrangements can be regarded as at one end of a spectrum of arrangements in which the payment to the expert is directly linked to the outcome of the proceedings. Arrangements at other points on the spectrum would involve some financial advantage for a successful outcome, as where the expert is paid a bonus if the party is successful, or is successful to a specified extent. We will use the term “contingency fee” to refer to all such arrangements, in which the amount payable to the expert is directly affected by the outcome of the proceedings.

9.21 Such arrangements, in which there is a direct link between payment and the outcome of the litigation, do not constitute the only situation in which experts may be financially advantaged by successful outcomes. Even where there is no direct connection between the payment an expert will receive and the outcome in a particular case, it may be obvious that, if an expert is seen by the client and the legal representatives to have been effective, it is more likely that the lawyers will approach the expert again in similar cases. As it was put in one submission:

9.23 A number of submissions took the view that contingency fee arrangements amplified adversarial bias and should be prohibited or discouraged.¹³ Professor Boettcher wrote:

9.25 However, some argued that preventing such arrangements would effectively exclude some people from having their matters heard, and thus potentially cause the failure of meritorious claims.¹⁸ Absence of funds may also be “a practical impediment to obtaining a single expert witness report”.¹⁹ This argument appears to apply primarily to plaintiffs, especially in personal injury cases: they may have insufficient personal resources to prepare their cases, and arguably only a “no win no fee” arrangement would allow them to proceed with their claim.²⁰ In response to this concern, several submissions indicated that contingency based fee arrangements should not be prohibited, but suggested there should be a requirement that the fee arrangement be disclosed to the court.²¹

9.26 The level of concern among the submissions over the use of contingency fee arrangements was high, despite the fact that the majority believed such arrangements between parties and experts are rare.²² The few submissions that indicated that contingency fee arrangements were widespread were commenting almost exclusively in relation to personal injury cases.²³ In contrast, the submissions that viewed the practice as rare were either commenting more generally across a range of cases, or were referring to more particular types of litigation, such as cases involving psychiatric injury, construction and commercial litigation. The submissions therefore suggest that, although contingency fee arrangements are not common across the board, they may be used more often in personal injury cases.

9.27 Many submissions included assertions in general terms about the current use of contingent fee arrangements, but there appears to be no systematic or reliable evidence about their prevalence. Obtaining such evidence would involve a major research exercise. However, in addition to studying the submissions received, the Commission interviewed two senior partners in firms of solicitors that have substantial plaintiffs’ personal injury practices, the managing director of a company which funds litigation in exchange for a fee which is proportionate to any verdict recovered, and the directors of a company that acts as an agency for expert witnesses.

9.28 Assertions that contingency fee arrangements occur are entirely credible. There is a high incidence of solicitors acting on a contingency basis, particularly for plaintiffs in personal injury cases. Market forces would operate in relation to experts who earn the whole or a large part of their income as expert witnesses similar to the market forces which result in solicitors acting on a contingency basis. Similar arrangements might then be expected. On the other hand, there is a lack of hard evidence of the existence and extent of such practices, and there have been assertions that they do not exist. The two solicitors interviewed told us that, for some years now, the practice has been, in personal injury work at least, that the solicitors fund disbursements, including expert witness fees, and stand the loss if the claim fails. We were also told that, in personal injury work at least, medical experts now generally insist on payment before a report is supplied and require payment within 30 days for subsequent services, such as conferences and attending court to give oral evidence.

9.29 There were some qualifications. One solicitor told us that, if there was a poor outcome (which we take to mean a loss or an unexpectedly low verdict), he might negotiate with the expert witnesses in relation to their fees. The other solicitor told us that he had an arrangement with one of the agencies through which expert evidence was obtained for immediate payment of one half of the expert’s fee, with the balance payable at the conclusion of the case.

9.30 There may be a subtle difference between what is expressly agreed and what may actually occur. Where a fee or part of a fee is deferred or is subject to negotiation after the event, there is room for development of a practice whereby experts, looking to preserve a line of work, may forgo their fee or part of their fee when the case is unsuccessful. A tacit arrangement may thus develop without any explicit agreement covering the practice. Although we have seen no evidence of such arrangements, it is entirely possible that they would have developed.

9.31 The argument in some of the submissions that proscribing contingency fee arrangements would mean that many meritorious claims would not reach the courts implies that contingency fee arrangements occur with some frequency. This runs counter to what we were told actually occurs, in the personal injury field at least.

9.32 From what we have been told, the incidence of explicit contingency fees for experts may be low to non-existent. On the other hand, there may be an incidence of such a practice, particularly by tacit understanding rather than by overt agreement. That may particularly be so where the payment of fees is deferred in whole or in part pending the outcome of the case.

9.33 We mention in this connection that there is at least one private funding company operating in New South Wales which will, selectively, enter into funding agreements for a share of any verdict recovered. The proportion of the prospective verdict is struck having regard to the prospects in the litigation as assessed. However, that company does not fund personal injury litigation. There are institutional schemes in Victoria and South Australia which do so, particularly in relation to disbursements. If there appeared to be a need for such a scheme in this state, we would recommend that it be investigated, but we have not seen evidence demonstrating such a need.

9.34 The Commission has not received evidence of any arrangements being made with expert witnesses for the payment of proportionate fees (eg, a percentage of damages awarded), although this does not exclude the possibility that such arrangements may occur.

9.35 A contingency fee arrangement, whether express or tacit, raises the spectre of adversarial bias. The witness stands to gain financially by giving favourable evidence. That would also be the case where an expert enjoys the financial benefit of a line of work from a particular firm of solicitors or from a particular institution (such as an insurance company), or has a reputation for providing expert evidence with a particular leaning. The contingency fee arrangement is not the only possible source of adversarial bias arising from the financial implications of giving favourable evidence, but it is one such possible source and warrants consideration as such.

9.36 Prohibiting contingency fee arrangements is an obvious response to the problem, but faces two difficulties. First, any attempt to prevent contingency funding of experts faces severe problems of enforcement. There may be no difficulty if evidence can be found of an explicit arrangement between the party, or the party’s lawyers, and the expert. However, it would be easy enough to establish informal contingency arrangements: tacit understandings between expert and lawyer that, if the case is unsuccessful, the expert would not send a bill, or, perhaps, would not insist on payment if a bill were not paid. Those seeking to enforce any prohibition might find it difficult to establish that such an arrangement existed, unless perhaps a pattern could be shown across a number of cases that the expert did not press for payment, or for full payment, in unsuccessful cases.

9.37 An even more substantial problem was that of evaluating the suggestion, in some submissions, that there are situations where, in the absence of a contingency fee arrangement, a litigant would find it difficult or impossible to obtain any satisfactory expert evidence. If prohibiting contingency fee arrangements had the effect of preventing some litigants obtaining expert evidence at all, and thus meritorious claims being abandoned, assessing the merits of such a prohibition would mean balancing the harm caused by the abandonment of some meritorious claims against the harm caused by increased adversarial bias. Given the limited amount of information, it is impossible to assess these competing considerations in a satisfactory way. The Commission notes that some professional organisations prohibit contingency arrangements on the part of their members. This is of course a matter for the organisations, and we make no criticism of it.

9.38 Rather than prohibition, a more constructive approach for the law to take would be to ensure, as far as possible, that the terms on which experts are engaged are made known to the other parties and to the court. This would make it possible for a party to cross-examine the expert (and perhaps other witnesses) in order to bring out the funding arrangements and their potential implications. Submissions could then be made as to the effect of the funding arrangements on the objectivity of the expert. It would be open to a party to submit that, in all the circumstances, the funding arrangements should lead the court to attach little weight to the expert’s evidence, or even, perhaps, disregard it entirely.

9.39 The Commission favours rules requiring full disclosure of the financial arrangements between the expert and the engaging party. It considers this preferable to creating a prohibition on “no win no fee” or contingency arrangements, and to introducing a rule or presumption against the court accepting evidence from an expert witness engaged on such a basis.

9.40 It seems that, in general, contingency arrangements are more likely to involve experts engaged on behalf of plaintiffs than those engaged on behalf of defendants. In personal injury matters especially, in practice, defendants are likely to be insurance companies, government agencies or corporations. When considering the desirability of requiring financial disclosure relating to contingency arrangements – which in practice will relate largely to plaintiffs – the Commission considered whether it might be desirable also to require litigants to disclose, in relation to any expert witness, whether they had previously engaged that person as an expert in other, similar cases. The rationale for such a requirement would be that experts used repeatedly by a particular defendant might have as much of a financial interest in a favourable outcome for the party that engaged them as would experts appearing for plaintiffs on a contingency basis. On balance, however, the Commission did not consider that such a requirement was practicable or necessary. First, formulating such a requirement poses serious difficulties. Secondly, it is open under the present law for plaintiffs, if they wish, to ascertain in cross-examination whether the evidence of an expert engaged by a defendant is influenced by reason of the expert’s previous involvement with the defendant.

9.41 The Commission proposes that the rules should require that the funding arrangements relating to each expert witness be known to all parties and to the court. There should be disclosure of all fee arrangements, including any arrangement for deferral of payment, in whole or in part, and of the payments which have actually been made to the expert under whatever arrangement is on foot. Disclosure in those respects would reveal any arrangement for deferral.

9.42 The terms of reference require the Commission to inquire into and report on the operation and effectiveness of the rules and procedures governing expert witnesses in New South Wales, and, in doing so, to have regard to “current mechanisms for the accreditation and accountability of expert witnesses for the purposes of court proceedings”.

9.43 Current accreditation schemes are discussed in the following paragraphs. In relation to “accountability”, many professions require their members to be accountable by requiring them, as a condition of their membership or their entitlement to a designation such as “accredited”, to adhere to standards of conduct developed by the profession. There are normally procedures within the profession or a disciplinary body to deal with allegations of misconduct. In addition, where the practice of the profession is licensed, legal proceedings may be instituted to remove a member’s licence, and thereby prevent the person from continuing to practise the profession. Finally, expert witnesses are “accountable”, in the sense that certain types of misconduct, such as giving deliberately false evidence, can, if detected, lead to legal sanctions, a matter separately considered in this chapter.

9.44 In practice, of course, accreditation will normally be favourably regarded by parties in selecting expert witnesses, and by courts in considering what weight to attach to the evidence of an expert witness who is accredited in the relevant discipline or sub-discipline. However, the law of evidence does not require expert witnesses to be accredited. Expert evidence may be received by anyone qualified to give it, whether accredited or not. Nor do the existing rules relating to expert witnesses refer in any way to schemes of accreditation. At the present time, no New South Wales court itself accredits expert witnesses, and the Commission is not aware of any tribunal that does so.

9.45 Having regard to the present position and the terms of reference, the general issue is whether it would be desirable for the rules and procedures governing expert witnesses to deal expressly with accreditation schemes. The Issues Paper invited comment on whether experts should be accredited by the courts as expert witnesses, and on accreditation of experts more generally. Having regard to the submissions received, and the Commission’s further research and inquiries, the following questions need consideration:

9.46 Many professional associations conduct accreditation schemes. They vary in numerous ways, including in what is attributed to those who are accredited. A scheme may constitute a simple list of individuals who have satisfied certain identifiable requirements, such as having certain qualifications, having been in practice for a certain period, and having attended prescribed continuing education courses. Alternatively, the relevant profession may have an active disciplinary scheme under which accreditation may be withheld from individuals whose performance is found to have fallen short of the relevant standard: in such cases, accreditation might reasonably be thought to justify a measure of confidence in the skill and integrity of accredited persons. In practice, however, monitoring the performance of those who are accredited can be extremely difficult and time-consuming.

9.47 For the purpose of this discussion, it will be useful to distinguish between accreditation relating to the particular discipline (“discipline accreditation”) and those schemes that specifically focus on the role of expert witness (“forensic accreditation”). It is accepted that, within schemes of discipline accreditation, there may be particular seminars or other activities directed to aspects of the role of expert witness.

9.48 To take one example, there is a system of accreditation for chartered accountants, administered by the Institute of Chartered Accountants in Australia (ICAA), with requirements relating to education, practical experience and training, and professional standards and ethics.²⁴ Chartered accountants are bound by the professional standards and disciplinary standards set by the ICAA, and are obliged to undertake at least 120 hours of continuing professional education every three years. Chartered accountants who conduct public practice must hold a current Certificate of Public Practice from the ICAA, and this includes requirements such as professional indemnity insurance.

9.49 Many chartered accountants are also involved in sub-specialty accreditation schemes such as apply to auditors, tax agents, liquidators and financial advisors. These have their own additional systems of regulation: for example, auditors must be registered under a statutory scheme administered by the Australian Securities and Investments Commission. There is also a recently created Business Valuation Special Interest Group, which may develop into an accreditation scheme for chartered accountants who specialise in business valuations.

9.50 In 1999, the ICAA created a Forensic Accounting Special Interest Group (FASIG), now represented nationally and in most states. FASIG is devoted to the application of accounting knowledge and skills to issues arising in civil and criminal litigation, and investigations, covering a wide range of areas such as valuation, damages, personal injury, fraud investigation and professional negligence. Its broad aims are to “assist chartered accountants to maintain high professional standards when acting as forensic accountants, and to promote a better understanding of the value of forensic accounting services to those groups, such as lawyers and the judiciary, who use or rely upon the work of expert accountants”. In collaboration with CPA Australia, it has formulated a Statement of Forensic Accounting Standards. These are binding on members, and breach may lead to disciplinary proceedings. A document setting out (non-mandatory) practical guidelines has also been produced. FASIG also conducts education in forensic accounting, and has sponsored a Forum on Expert Evidence, attended by judges and lawyers as well as expert groups. The ICAA has also formally endorsed a Monash University course, the Graduate Certificate in Forensic Studies (Accounting), and the FASIG submission indicates that other universities have begun to offer similar courses.

9.51 Many of the submissions were opposed to a recommendation requiring that all experts be accredited before being able to provide expert testimony to the court. It was argued in several submissions that a mandatory requirement for accreditation would limit the pool of available experts, as only those experts who have the most time available or for whom providing evidence was a significant part of their professional activities would be likely to apply for accreditation.²⁵ This may lead to fewer practising expert witnesses and increase, rather than decrease, the potential for bias to occur. In addition, there was concern that in cases that require the expertise of an expert from interstate or overseas, or in cases where the subject matter is unusual and therefore may require very specific expertise, it would be unlikely that such experts would be accredited. Consequently, important and relevant information may be withheld from the court because the person who can provide it is not accredited.²⁶

9.52 Several submissions recognised that accreditation is only effective in ensuring that an expert has appropriate qualifications. It would not guarantee that the expert was acting in an objective or impartial manner, and would therefore have no impact upon the issue of bias and partisanship.²⁷

9.53 There was some suggestion that, if an accreditation process were adopted, the courts are not the appropriate body to accredit experts.²⁸ In this regard, Freehills submitted:

9.55 Other submissions suggested that accreditation by professional bodies, independent of the court, may be more appropriate.³¹ However, some of these submissions recognised that one potential limitation to this form of accreditation is that many professional accreditation schemes are widely focused to cover all professionals within a particular field. They therefore accredit all those who have attained relevant qualifications in a particular field. Although some have particular branches of professionals who work in forensic settings, few actually require knowledge of the requirements and duties of acting as an expert for registration, and therefore provide little assistance in ensuring that expert witnesses are aware of and act in accordance with their duty to the court.³²

9.56 Consequently, two submissions recommended that an alternative to a requirement for accreditation of expert witnesses may be that, before being able to provide testimony, each expert should be required to participate in expert witness training workshops such as those currently run by the Institute of Arbitrators and Mediators.³³

9.57 Another submission³⁴ suggested that bias and partisanship may be reduced if there were a much stricter determination as to who is regarded as an expert in relation to each question to be determined by the court. This submission further suggested that bias and partisanship will be reduced if it were required of the expert to state all limitations that they have in answering each relevant question so that it can be given appropriate weighting. The first suggestion relates to the substantive law of evidence – which determines what expert evidence is admissible – and thus falls outside the terms of reference. The second suggestion certainly identifies what might well be a useful line of cross-examination, but the Commission is not persuaded that it could be translated into useful rules of court or other legislation.

9.58 Although some submissions supported court-administered lists of “impartial and satisfactory experts”,³⁵ others set out detailed reservations about this approach. For example, the ICAA made the following points:

9.59 The Commission has no doubt that properly run schemes of accreditation, especially those involving forensic accreditation, have considerable potential to assist the system of justice by educating potential expert witnesses in their responsibilities, and helping them understand and work effectively within the justice system. Such schemes are likely to enhance the skills and understanding of those who participate in them, both as to the discipline and as to the role of the expert witness. Schemes of accreditation that advance an understanding of the role of the expert witness might have the effect of excluding or discouraging individuals who are, as stated in one submission, “malleable in their views and who do fall within the rubric of ‘guns for hire’”.³⁷

9.60 The question, however, is whether it is desirable for the law to limit expert witnesses to those who are accredited in some specified way, or to give some legal preference or priority to accredited experts. Such a legal preference might be implemented in various ways. The rules might, for example, provide that expert evidence may not be given by non-accredited experts without the court’s permission, and could perhaps provide guidelines on the matter. A guideline might be, for example, that in order to lead evidence by a non-accredited expert, a party would need to demonstrate that no suitable accredited expert was reasonably available.

9.61 Although such a course might have superficial attraction, the Commission agrees with the view of many of the submissions that it would be undesirable. In brief, the lists may be both over-inclusive and under-inclusive: it cannot be assumed that all or even most accredited experts would be suitable as expert witnesses, or that all or most non-accredited experts would be unsuitable.

9.62 As to the first problem (over-inclusion), in practice, while accreditation may reliably indicate that at the time of becoming accredited, the person met prescribed educational and character reference requirements, and perhaps that, the person has continued to attend required continuing education programs, the list of accredited professionals may include people who are not entirely suitable as expert witnesses. One submission pointed to the difficulty that accreditation schemes have in excluding otherwise qualified people on the basis that their opinions could be bought or sold.³⁸

9.63 As to the second problem (under-inclusion), in many areas, there are always likely to be highly qualified persons, including some who might be excellent expert witnesses in particular cases, who, for one reason or another, are not currently accredited in the relevant disciple or sub-discipline. Thus there is a danger that giving legal priority to accredited experts could, paradoxically, exclude some people who would be high quality expert witnesses.

9.64 Finally, the Commission notes that no Australian court has implemented rules of the kind under consideration.

9.65 If the previous argument is accepted, there would be no merit in courts keeping lists of accredited experts, because, since the rules would give no priority to such experts, the list would have no purpose. Even if it were thought that there was merit in giving legal preference to accredited experts, however, there are formidable objections to having courts maintain their own accreditation schemes, or their own lists of accredited experts.

9.66 First, the public costs of establishing and maintaining the system would be considerable, and, in the Commission’s view, would be a significant burden for the courts involved, disproportionate to any advantage that might be obtained.

9.67 Secondly, such a practice could give rise to a reasonable suspicion of bias on the part of the court, in that a litigant might reasonably feel that the decisions that court-accreditation of certain individuals indicated a bias in favour of those individuals, or the bodies of opinion in the discipline represented by those individuals. Edmond and Mercer illustrate this problem:³⁹

9.69 For the above reasons, although the Commission believes that schemes of discipline accreditation and forensic accreditation established within various professions and disciplines have an important role in enhancing the quality of expert evidence, it does not recommend that the law be changed to give some priority to expert witnesses who are accredited, or that the courts should maintain their own accreditation schemes, or their own lists of accredited experts.

9.70 A range of opinions was expressed on sanctions. Some thought that existing provisions were sufficient.⁴¹ Some suggested dangers in some forms of sanctions, notably the risk of discouraging good people from giving expert evidence.⁴² Others stressed the harm done by poor expert witnesses, arguing (or implying) that some additional sanctions appear necessary.⁴³

9.71 There is considerable anecdotal evidence to the effect that there is a problem of unprofessional behaviour by expert witnesses in New South Wales. It is, however, impossible to quantify the extent of the problem. There is no reliable evidence on its incidence; no doubt because collecting such evidence would be an enormous undertaking, with formidable difficulties in identifying such behaviour. Submissions to the Commission contain wildly different estimates, some suggesting that it is a pervasive problem, others that it is a relatively rare occurrence. The differences are likely to reflect different experiences and perceptions of those making submissions, and, perhaps, variations from one area of expertise to another.

9.72 It is no doubt possible in clear or extreme cases to identify inappropriate or unethical conduct: where, for example, it can be shown that a report has been altered for no reason other than the urgings of a client or a solicitor, or where the evidence is manifestly incompetent or biased, by reason, for example, of clearly inappropriate methodology or concealment of relevant facts. However, a major difficulty in tackling the problem by way of sanctions is that, in practice, it is often difficult to establish that an expert witness is doing other than expressing his or her genuine opinion. It cannot be inferred from the mere fact that an expert witness’s evidence strongly favours one side that the witness has been unprofessional or dishonest. A witness might be chosen because a party knows that the witness’s genuinely held views support the party’s case (“selection bias”); and a witness, while attempting to give unbiased evidence, may not realise that his or her evidence has been influenced by loyalty to the party calling him or her: but such things, however regrettable, do not ordinarily amount to the sort of misconduct that can properly be punished.

9.73 It is obvious that dishonest or unprofessional behaviour by expert witnesses is likely to reduce the likelihood of the court reaching a just decision, and may have other adverse consequences, such as lengthening proceedings and adding to costs. The real issue is to find ways of reducing or eliminating such behaviour.

9.74 A number of other measures, such as codes of conduct and the use of joint expert witnesses, have considerable potential to reduce adversarial bias and unprofessional behaviour. The issues are discussed elsewhere.⁴⁴ The present question is the place of sanctions in addressing the problem.

9.75 At present, giving unprofessional evidence may have a series of possible adverse consequences for the expert, which could be seen as “sanctions”:

Table of contents

3. The expert witness code of conduct is reproduced in Appendix F of this report and discussed in Chapter 3.

4. Confidential Submission 4 at 2; Australian Lawyers Alliance, Submission at 9; Royal Australasian College of Surgeons, Submission at 1; Associate Professor Eric Magnusson, Submission at 4; Association of Consulting Surveyors, Submission at 2; Professions Australia, Submission at 4.

5. Royal Australian Institute of Architects, Submission at 3; Institute of Chartered Accounts, Submission at 4; Expert Experts, Submission at para 29.6; Maurice Blackburn Cashman Lawyers, Submission at 5.

8. Expert Experts, Submission at para 29.8; United Medical Protection, Submission at 3; Professions Australia, Submission at 4.

10. Australian Council of Professions, Dealing with risk: Managing Expectations (Deakin ACT, 1996) at 24.

13. Adrian Howie, Submission at 4; Forensic Data, Submission at 2; Dial an Angel, Submission at 1; Medical Consumers Association, Submission at 7; David Hibbert, Submission at 2; Royal Australian Institute of Architects, Submission at 4; Human Factors & Ergonomics Society, Submission at 4; Australian Institute of Quantity Surveyors, Submission at 3; Jamieson Foley Traffic and Transport, Submission at 3; Michael Talbot-Wilson, Submission at 5; Professions Australia, Submission at 5; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 2; United Medical Protection, Submission at 5; Association of Consulting Engineers Australia, Submission at 5; Engineers Australia, Submission at 2; Public Interest Law Clearing House, Submission at 2; National Institute of Forensic Science, Submission at 5; Stephen Allnutt, Peter Klug and Bruce Westmore, Submission at 4; Freehills, Submission at para 13; Roy Beran, Submission at 4; Institute of Arbitrators and Mediators, Submission at 3; Australian College of Private Consulting Psychologists, Submission at 11; A R Abadee, Submission at 11; PricewaterhouseCoopers, Submission at para 2.1.11; Australian and New Zealand College of Obstetricians and Gynaecologists, Submission at 1; Rodney Meeve, Submission at 1; Dr Padraic Grattan-Smith, Submission at 2; Neil Adams, Submission at 2; Confidential Submission 4 at 4; Geoffrey Markham, Submission at 3; New South Wales Police Forensic Services Group, Submission at 2.

16. Expert Experts, Submission at para 27.22; Jamieson Foley Traffic and Transport, Submission, at 3.

17. Australian Institute of Quantity Surveyors, Submission at para 2.3; Institute of Chartered Accountants, Submission at para 71-75.

18. David Watt (Evidex), Submission at 4; Carroll and O’Dea Lawyers, Submission, at para 2; Australian Lawyers Alliance, Submission at 12; George Cooper, Submission at 5; Medical Consumers Association, Submission at 8; David Hibbert, Submission at 2; Maurice Blackburn Cashman Lawyers, Submission at para 27; For Legally Abused Citizens, Submission at 4; Public Interest Law Clearing House, Submission at 2; Institute of Arbitrators and Mediators, Submission at 3; PricewaterhouseCoopers, Submission at para 2.1.11; Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Submission at 1; Joan Dwyer, Submission at 1

21. Australian Lawyers Alliance, Submission at 12; Mike Talbot-Wilson, Submission at 6; Association of Consulting Engineers Australia, Submission at 5; Professions Australia, Submission at 5; Dr Padraic Grattan-Smith, Submission at 2

22. Stephen Allnutt, Peter Klug and Bruce Westmore, Submission at 3; Freehills, Submission at para 11; New South Wales Bar Association, Submission at 5; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 2; National Institute of Forensic Science, Submission at 5; Confidential Submission 4 at 4; Geoffrey Markham, Submission at para 14.

24. This section draws on the submission by the Institute of Chartered Accountants in Australia.

25. Expert Experts, Submission at para12.12; United Medical Protection, Submission at 5; Confidential Submission 4 at 3; Nigel McDonald, Submission at 10; Mike Talbot-Wilson, Submission at 5; Institute of Chartered Accountants, Submission at para 61; New South Wales Bar Association, Submission at para 14; A R Abadee, Submission at 10.

26. David Watt, Submission at para C4; Professions Australia, Submission at 5; Freehills, Submission at para 9.1; New South Wales Bar Association, Submission at para 15.

27. Expert Experts, Submission at para 12.3; Maurice Blackburn Cashman Lawyers, Submission at para 20; Australian Lawyers Alliance, Submission at 9; Nigel McDonald, Submission at 10; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 2.

28. A R Abadee, Submission at 10; Institute of Chartered Accountants, Submission at para 66.

31. David Hibbert, Submission at 2; Human Factors and Ergonomics Society, Submission at 4; Association of Consulting Engineers Australia, Submission at 3; Freehills, Submission at para 8; National Institute of Forensic Science, Submission at 3; New South Wales Police - Forensic Services Group, Submission at 2.

32. Royal Australian Institute of Architects, Submission at 3; Association of Consulting Surveyors, Submission at 2; Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Submission at 2; Engineers Australia, Submission at 2.

33. Institute of Arbitrators and Mediators, Submission at 3; Professions Australia, Submission at 5.

39. G Edmond and D Mercer, “Litigation Life: Law-science knowledge construction in (Bendectin) mass toxic tort litigation” (2000) 30 Social Studies of Science 265.

41. Joy Consulting Group, Submission at 2; Australian Lawyers Alliance, Submission at 13; New South Wales Bar Association, Submission at 5.

42. Carroll and O’Dea Lawyers, Submission at 2 (sanctions for experts should be very narrow so as not to be used as a tool to intimidate the witness. The witness must be free to give his or her opinion without fear of sanction).

43. Ross Vining, Submission at 1; College of Clinical Psychologists, Submission at 2 (unethical conduct is common and is influenced by the ongoing financial incentives offered by those who pay for expert witnesses).