• Background to the reference
• Scope of the reference
• The Commission’s proposed action plan

BACKGROUND TO THE REFERENCE

1.1 This reference appears to have been stimulated by expressed concerns about the widespread use of expert witnesses, the costs involved, possible bias and other associated problems. These concerns are shared by some members of the judiciary as well as the Legal Services Commissioner who has received complaints about the use of expert witnesses.

1.2 The reference also co-incides with world-wide reassessment and change relating to the management of court business generally and expert witnesses in particular.

Recent developments overseas

1.3 In England, the Woolf Report in 1996 identified problems with the existing system and recommended major changes. In relation to the system generally, Lord Woolf wrote: ¹

The defects I identified in our present system were that it is too expensive and that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under-resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court.

He said that a large litigation support industry, generating a multi- million pound fee income, had grown up among professions such as accountants, architects and others, and new professions had developed such as accident reconstruction and care experts. This went against all principles of proportionality and access to justice. In his interim report, he had recommended that the calling of expert evidence should be under the complete control of the court. Within that framework, he had argued for a wider use of “single” or “neutral” experts. He recorded that most respondents to his interim report had favoured retaining the full scale adversarial use of expert evidence and had resisted proposals for wider use of single experts. As to the full “red blooded” adversarial approach, this was only appropriate if questions of cost and time were put aside. The existing system worked well for lawyers and judges, but ordinary people were being kept out of litigation. The basic premise of his new approach was that the expert’s function was to assist the court. There should be no expert evidence at all unless it will help the court, and no more than one expert in any one speciality unless this is necessary for some real purpose.

Australian experience

1.6 In Australia, there has also been a trend towards active case management, and some Australian courts have introduced new rules influenced by the English developments.

1.7 The Commission will be considering the English experience and, especially, the recent experience in Australian jurisdictions relating to expert witnesses, both in those jurisdictions that have introduced new measures, and in those that have not.

SCOPE OF THE REFERENCE

1.8 The Reference requires the Commission to assess the rules governing expert witnesses in courts and tribunals in New South Wales. Especially in the light of the deadline of 31 March 2005, it is obviously impossible to conduct a comprehensive review of each jurisdiction, or in the final Report to recommend what particular rules should apply in each jurisdiction.

1.9 The Commission intends, however, to review the various measures and issues set out in the Terms of Reference. The final Report will review the relative merits of the various measures, and make recommendations intended to assist each jurisdiction in formulating suitable rules for its particular circumstances.

Rules and procedures

1.10 The Commission understands the phrase ‘rules and procedures’ in the Terms of Reference to refer to rules of court and matters of practice and procedure, rather than to the law of evidence as such.

1.11 Rules and guidelines about these matters are generally made by the judges of each court, rather than by the legislature. Typically, the governing Act will have a provision to the effect that the judges of the court may make rules of court on matters of practice and procedure. Rules of court made in this way regulate the proceedings of the court. They are usually quite detailed, and are usually amended relatively frequently.

1.12 In addition to rules of court, guidelines are sometimes contained in Practice Directions, generally made by the most senior judge of the jurisdiction (no doubt after consultation within the Court). In this Issues Paper, the word ‘rules’ will generally be used to refer both to rules of court and to practice directions.

1.13 In a court that has different divisions, such as the Supreme Court of New South Wales, the rules may provide that some rules are specific to some of its divisions, or particular lists,⁶ as well as rules that apply to all proceedings in the Court.

1.14 It is always possible for the court to depart from the rules in a particular case, where their application would be unjust or inappropriate. Thus the rules constitute a framework for the ordinary processes of the court, guiding litigants, but they do not generally prevent the court from making procedural rulings that are tailored for the particular case.

1.15 Sometimes, the rules contain principles and objectives, indicating what they are intended to achieve.

Jurisdictions covered by the reference

1.16 The Commission’s Terms of Reference are not limited to any particular jurisdiction, or even to courts as distinct from tribunals.

1.17 Although the Terms of Reference are not expressly limited to civil law, the Commission considers that it was unlikely that the reference was intended to include criminal law. The developments referred to in paragraph 2 of the Terms of Reference all relate to developments in the area of civil law. The Commission is not aware of any similar rules in criminal law, and on the face of it they would be inappropriate in criminal law. Nor is the Commission aware of any precedents for such measures in criminal law, or of any views that they should be introduced to criminal law. For these reasons the Commission does not anticipate that the Report will deal with criminal law matters.

THE COMMISSION'S PROPOSED ACTION PLAN

1.18 Since receiving this reference in September 2004, the Commission has commenced the process of writing to the many individuals and organisations known to have an interest in the issues, seeking their comments and assistance.

1.19 The publication and distribution of this Issues Paper is intended to indicate some of the major issues, and to encourage people to make submissions on any aspect of the Reference, including any issues that they think important but may not have been addressed in this Issues Paper.

The structure of this Issues Paper

1.20 Broadly speaking, measures relating to expert witnesses are intended to enable expert evidence to be made available in a way that minimises bias and avoids unnecessary delays, and private and public costs. In this Issues Paper, the discussion is organised by reference to the more specific purposes of the various measures to be considered. Each of these matters will be considered in turn, describing the existing situation and inviting comments and submissions on the numbered issues for consideration.

1.21 Chapter 2, entitled “Measures to enhance the objectivity and accountability of experts”, considers measures that are designed to ensure so far as possible that experts adopt an unbiased approach, even if they are called on behalf of one party. These measures tend to stress that experts’ task is to assist the Court. One prominent measure of this kind is the Code of Conduct. This chapter also considers mechanisms for the accreditation and accountability of expert witnesses for the purposes of court proceedings, and the problem of expert witnesses offering their services on a ‘no win, no fee’ basis. Finally, in this chapter, we consider the desirability of sanctions for inappropriate or unethical conduct by expert witnesses.

1.22 Chapter 3, “Measures to increase transparency”, deals with measures such as requirements that experts spell out the basis on which they are acting, requiring the disclosure of expert reports prior to the hearing, and restricting private communications between parties and the experts.

1.23 Chapter 4, “Measures for the efficient use of experts”, focuses on measures designed to avoid duplication and time wasting, and to ensure that the Court’s time is used to deal with issues really in dispute. These measures include requirements that experts consult in advance and identify the matters on which they agree and those on which they disagree, and also techniques involving experts giving evidence in court at the same time.

1.24 Chapter 5, “Measures to limit the number of experts”, deals with measures designed to reduce the number of experts and to eliminate or reduce the use of experts called by each party. The most important of these are provisions for a Court Expert, or a Single Expert (in which case the parties are not allowed to call other expert evidence on the topic in question).

1.25 Chapter 6, “Alternatives to experts”, considers measures designed to provide technical assistance to the Court other than through the use of experts. These include the use of assessors and referees.

1. The Right Hon. The Lord Woolf Final Report to the Lrd Chancellor of the Civil Justice System in England and Wales (July 1996)

2. ATK...May, “The English High Court and Expert Evidence (2004) 6 The Judicial Review 353, 363.

3. CPR (UK) r 31.1.

4. CPR (UK) r 35.4(1).

5. CPR (UK) r 35.7.

6. An example is Pt 14C Professional Negligence List, of the SCR, and Practice Note 104, Professional Negligence List, which includes a code of conduct for experts appearing in that list.