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Where am I now? Lawlink > Law Reform Commission > Publications > 5. Measures to limit the number of experts
Issues Paper 25 (2004) - Expert Witnesses
5. Measures to limit the number of experts
Updates and background for this project (Digest)
INTRODUCTION
5.1 Arguably, all the measures considered so far are consistent with what is referred to as the ‘adversary system’, in that the parties alone put the evidence before the Court. The measures affect the way the evidence is handled, but – with the possible exception of a panel of Court-accredited experts - do not involve the Court playing any part in the selection of evidence. By contrast, the measures to be considered in this section do involve the court playing a part in deciding what expert evidence is to come before it.
5.2 Some of these measures, such as referees and assessors, and the court’s power to call its own witnesses, have long been part of the law, although in many jurisdictions they have been little used. Others, however, notably rules that limit the parties’ ability to call as many experts as they wish, and rules that provide for a single expert, are more recent. They have been introduced as part of an effort to reduce costs and delay, and, to some extent, to reduce or eliminate what have been seen as unsatisfactory aspects of the existing practice. These measures have sometimes been controversial.
THE (NON-EXCLUSIVE) COURT EXPERT
5.3 We use the term ‘Court Expert’ to refer to an expert called by the Court, in circumstances where there is no restriction on the parties’ rights to call their own expert evidence on the topic.21
5.4 Although such a power has existed for many years, its use, while by no means unknown, has generally been sparing.22 There would seem to be a number of possible reasons for this.
5.5 First, once a hearing has begun, it will generally be difficult for the court to make arrangements for the appointment of its own expert without adjourning the case, with unwanted consequences of delays and increased costs, both for the parties and for the court. It would seem that for practical reasons, the appointment of a court expert will often be possible only if the court engages in fairly intensive case management, such that a judicial officer will be able to form the view that a court expert is needed, and take the necessary steps, well before the trial commences. Broadly speaking, intensive case management is a relatively modern phenomenon, and thus until recent times it may have usually been impracticable for courts to appoint their own expert.
5.6 Secondly, the court may often consider that calling a court expert would be likely to complicate the hearing, and increase costs and delay, without evident advantage in the particular case.
5.7 Thirdly, the court may consider it inappropriate in adversary proceedings to call its own expert. It may consider that the parties are the best judge of what evidence to lead, and that justice will most likely be done by the court adjudicating on the evidence the parties choose to put before it. Perhaps, too, the court may feel that the decision to call an expert, and to identify that expert, could be seen as indicating a degree of pre-judgment or bias on its part.
5.8 Justice Sperling has summarised the arguments for not appointing a Court Expert as follows:23
It has been said that the appointment by the court of its own expert witness is contrary to the fundamental premise of the adversarial system; that the parties have the right to present their own case and to call witnesses of their own choice to support that case; that a court appointed expert may be unable to deal satisfactorily with a situation where more than one acceptable expert view of the matter in question is held in the professional community; that the court might place undue reliance on the evidence of the court expert, with the result that it will be the expert rather than the judge who decides the case; that, if the parties are permitted to call their own experts in order to reduce that concern, the appointment of a court expert may cause delay and an increase in costs without any countervailing benefit; and that, even if parties are precluded from calling their own experts, they would still have to incur the cost of retaining experts to advise on the likely outcome of the proceedings and to assist in preparation for cross-examination of the court expert, so that the saving in costs might be less than anticipated.
5.9 There may, however, be reasons for appointing a court expert, and the Commission will be studying the occasions in which such appointments have been made. For example, it might be thought in a particular case that the appointment of a Court Expert would be likely to help the parties resolve the issue, or provide the Court with evidence that is more objective, or more satisfactory, than that provided by the parties. Again, the appointment of a Court Expert may perhaps offset an unequal situation between the parties.24
THE SINGLE EXPERT
5.10 The term ‘Single Expert’ is used in this Issues Paper to refer to the following:
- An expert (the Single Expert) is appointed by the Court; and
- Parties are not permitted to call their own expert evidence on the same subject-matter.
5.11 The literature also speaks of a ‘Joint Expert’. This term indicates that the Expert may be appointed jointly by the parties. Indeed, rules providing for a Single Expert normally provide that the appointment may be made on the basis of the parties’ agreement, although if the parties cannot agree the appointment can be made by the Court. For the purpose of this issues Paper, the term Single Expert is preferred, because it indicates the distinctive feature of this measure, namely that the Court appoints one person and permits no other person to give expert evidence on the particular subject matter.
5.12 The appointment of a Single Expert may be considered a stronger or more drastic step than the mere appointment of a Court Expert, because it limits the expert evidence that the parties can call. Not surprisingly, it seems to have been the most controversial of the measures discussed in this Issues Paper.
5.13 Some Australian jurisdictions, influenced by the Woolf reforms in England, have recently adopted this kind of approach.25 In Queensland, there is provision for the parties jointly to appoint an expert, or for the Court to do it of its own motion. The main expressed purposes of the provisions include:26
(b) [To] ensure that, if practicable and without compromising the interests of justice, expert evidence is [to be given by the single expert] ...; and
(c) avoid unnecessary costs associated with the parties retaining different experts; and
(d) allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding.
5.14 Unless the Court otherwise orders, the expert is to be the only expert to give evidence on the issue. 27 Somewhat similar rules have been formulated in the Family Court of Australia.28
5.15 In New South Wales, the Land and Environment Court has used its rules to appoint experts, and since March 2004 ‘has imposed a presumption that in relation to any issue requiring expert evidence, a court expert will be appointed’. Where there is a court expert, a party needs leave to call an expert retained by that party. The Chief Judge of the Court has written:29
Generally, provided the Court is satisfied that the additional expert will add useful information to the discussion, leave is granted. Experience has shown that the court expert’s opinion is not always accepted by the judge or commissioner but that in every case the integrity of the decision made has been significantly enhanced.
… it would appear that in cases where a court expert has been appointed, many have settled without the need for a hearing and others have taken significantly les time for the hearing to be completed…
The consistent comment from the judges, commissioners and legal practitioners is that the evidence from persons appointed as court experts reflects a more thorough and balanced consideration of the issues than was previously the case…
5.16 The appointment of a Single Expert has been seen as having a number of advantages. First, by preventing other expert evidence on the matter in question, the appointment of a Single Expert is seen as reducing the time of the hearing, and thus saving public and private costs. Some would say, however, that such savings are not as evident as might be thought. They would point to the costs, both public and private, of the pre-trial processes that are required for the appointment of the Single Expert. They would also argue that each party will often need to engage an expert to advise them on the assessment of the evidence to be given by the Single Expert, and to assist in the preparation of cross-examination of the Single Expert. In some cases at least, they would argue that it might be cheaper for the parties each to have one expert than to have to pay for the Single Expert and also for their own ‘shadow’ experts. They might add that if the Single Expert were to be discredited in cross-examination at the trial, there would then be no expert evidence and there would need to be an adjournment, causing increased delays and costs.
5.17 Secondly, the appointment of a Single Expert is supported as providing more objective evidence than would otherwise be available. The argument is that this will assist the parties in attempting to resolve the matter (because the outcome will be more predictable) and will also provide more reliable evidence for the Court if the matter goes to a hearing.
5.18 On the other hand, some would argue that such an appointment may (or on one view, does) undermine the essential function of the Court: that the appointment of a particular Single Expert may involve a pre-judgment (eg that a particular view among experts is the correct one), and that the Single Expert’s evidence, being unchallenged by other experts, would be so persuasive as to undermine the decision-making role of the Court.
5.19 The above paragraphs are not intended to be a comprehensive account of the issues raised by the Single Expert, but only to indicate some of the differences that have arisen. There are other issues, some of them detailed and technical, relating to the Single Expert.
ISSUE 5.2
The Commission invites submissions on the experience to date with rules providing for appointment of single experts, and the advantages and disadvantages of this measure. In particular, the Commission invites comments on the following:
(a) To what extent can it be said that existing problems relating to expert witnesses make it necessary or appropriate that the courts (or some courts) should have the power to appoint a Single Expert?
(b) Is it objectionable in principle (because it is contrary to the adversary system or to justice), that the Court should ever be able to appoint a Single Expert?
(c) Are rules providing for single experts authorised by a legislative rule-making power relating to ‘practice and procedure’, or is it necessary that there be a clearer statutory basis?
(d) If the Court is to have power to appoint a Single Expert, what guidelines should the rules provide as to the circumstances in which a Single Expert should be appointed? Should the rules merely provide that it is one of the options available to the court, or provide lists of factors to be taken into account, or go further and create a presumption favouring (or disfavouring) the appointment of a single expert?
(e) How should the appointment be made? Is it generally appropriate for the rules to provide for an appointment based on the parties’ consent, or, where there is no consent, on the Court’s own motion? How is the appointment best managed within case management rules?
(f) How is the single expert to be instructed? What version of the facts should be given? If the facts change between the report and the trial, what is to happen? What communications can there be between the parties and the expert leading up to the hearing? Can a party object to something in a report, or have the expert consider a possible error, before the hearing? Can the expert seek further information, or raise some issue about the nature of his or her brief?
FOOTNOTES
21. The existence of a power in the court to call its own expert does not of itself preclude the parties from calling their own experts. And sometimes their power to do so is made explicit. Thus the Federal Court rules expressly provide that where there is a court expert, any party may adduce evidence of one other expert on the same question, if the party has given notice to the other parties of intention to do so. See O34 rr 2, 6.
22. The Freckelton Report, above. In the United States, as early as 1952, the rules of the Supreme Courts of the Bronx and New York provided for the appointment of an impartial doctor from panels of willing eminent doctors supplied by the local medical societies. The doctor would examine the patient, file a report, and be available for cross-examination. The rules were said to have had some success in encouraging settlement and discouraging fraudulent or exaggerated claims. See P F Rothstein, Federal Rules of Evidence (updated to December 2003), Article VII, Opinions and Expert Testimony; Rule 706: Court Appointed Experts.
23. Sperling, above, citing Re Saxton [1962] 1 WLR 968 per Lord Denning MR at 972; Kian v Mirro Aluminium Co 88 FRD 351 at 356 (Mich 1980); Woolf, Access to Justice (Final report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, July 1996) at p.186, (Interim report to the Lord Chancellor, HMSO, London, June 1995) at p.142; Australian Law Reform Commission, Experts (Review of the Adversarial System, Background Paper 6, Jan 1999) at pp.47-49; R Chesterman, “Dealing with Expert Witnesses” (1998) 36 Law Society Journal 50; Editorial, “Expert Evidence” (1991) 59 Medico-Legal Journal 67; V Plueckhahn, “Legal Dilemmas in the Use of ‘Expert Medical Evidence’” (1982) Australian Journal of Forensic Sciences 158.
24. See Jonathon Pearlman, “Doctors wary of being caught in web of litigation” Sydney Morning Herald (6 September 2004) at 11, reporting that solicitors acting for injured parties in medical negligence cases complain about the difficulty in finding medical experts willing to testify against other doctors.
25. Queensland, Uniform Civil Procedure Rules, Part 5 – Expert Evidence.
26. Rule 423.
27. Rule 429N.
28. Family Law Rules 2004, Part 15.5. See generaly Family Court of Australia, The Changing Face of the Expert Witness (2002).
29. P McClennan, ‘Problems with Evidence’ (Speech for the Government Lawyers’ Annual Dinner, NSW Parliament House, 7 September 2004). |
