Part 32 – Experts and Assessor

Scope of this Part

32.1

1. This Part deals with the provision of expert evidence to assist the court.
2. In this Part –
   • “expert witness” means an expert who has been instructed to prepare or give evidence for the purpose of court proceedings. 

General duty of court and of parties

32.2

1. Expert evidence must be restricted to that which is reasonably required to resolve the proceedings justly.

Expert’s overriding duty to court  

32.3

1. It is the duty of an expert witness to help the court impartially on the matters relevant to his or her expertise.
2. This duty overrides any obligation to the person by whom he or she is instructed or paid.

 Way in which expert’s duty to court is to be carried out

32.4

1. Expert evidence presented to the court must be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the demands of the litigation.
2. An expert witness must provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within the witness’ expertise.
3. An expert witness must state the facts or assumptions upon which his or her opinion is based, and must consider and include any material fact which could detract from his or her conclusion.
4. An expert witness must state if a particular matter or issue falls outside his or her expertise.
5. If the opinion of an expert witness is not properly researched then this must be stated with an indication that the opinion is no more than a provisional one.
6. If an expert witness cannot assert that his or her report contains the truth, the whole truth and nothing but the truth without some qualifi­cation, that qualification must be stated in the report.
7. If after service of a report, an expert witness changes his or her opinion on a material matter, that change of opinion must be communicated to all parties.

Expert’s right to apply to court for directions

32.5

1. An expert witness may apply in writing to the court for directions to assist him or her in carrying out his or her functions and duty to the court as an expert witness.
2. An expert witness who applies for directions under paragraph (1) need not give notice of the application to any party.
3. The court may direct that –
   1. notice of an application under paragraph (1) be given to any party; or
   2. a copy of the application and any directions given be sent to any party.

Court’s power to restrict expert evidence

32.6

1. A party may not call an expert witness or put in the report of an expert witness without the court’s permission.
2. The general rule is that the court’s permission is to be given at a case management conference.
3. When a party applies for permission under this rule –
   1. that party must name the expert witness and identify the nature of his or her expertise; and
   2. any permission granted shall be in relation to that expert witness only.
4. The oral or written expert witness’ evidence may not be called or put in unless the party wishing to call or put in that evidence has served a report of the evidence which the expert witness intends to give.
5. The court must direct by what date the report must be served.
6. The court may direct that part only of an expert witness’ report be disclosed.

General requirement for expert evidence to be given in written report

32.7

1. Expert evidence is to be given in a written report unless the court directs otherwise.
2. This rule is subject to any enactment restricting the use of “hearsay evidence”.

Written questions to experts

32.8

1. A party may put written questions to an expert witness instructed by another party or jointly about his or her report.
2. Written questions under paragraph (1) –
   1. may be put once only;
   2. must be put within 28 days of service of that expert witness’ report; and
   3. must only be in order to clarify the report; unless –
      1. the court permits; or
      2. the other party agrees.
3. An expert witness’ answers to questions under this rule must be treated as part of that expert witness’ report.
4. If a party has put a written question to an expert witness instructed by another party in accordance with this rule and the expert witness does not answer the question, the court may make one or more of the following orders in relation to the party who instructed the expert, namely that –
   1. that party may not recover the fees and expenses of the expert witness from any other party;
   2. that party may not rely on the evidence of the expert witness;
   3. the party asking the questions may seek to obtain answers from another expert.
5. This rule also applies where evidence from a single expert witness is to be used under rule 32.9.

Court’s power to direct evidence by single expert

32.9

1. If two or more parties wish to submit expert evidence on a particular issue, the court may direct that expert evidence be given by one expert witness.
2. The parties referred to in paragraph (1) are known as “the instructing parties”.
3. If the instructing parties cannot agree who should be the expert witness, the court may –
   1. select the expert witness from a list prepared or identified by the instructing parties; or
   2. direct that the expert witness be selected in such other manner as the court may direct.
4. The court may vary a direction given under this rule.
5. The court may appoint a single expert witness instead of the parties instructing their own expert witnesses or may replace expert witnesses instructed by the parties.

Cross-examination of court appointed expert

32.10

1. If an expert appointed by the court under rule 32.9 (5) gives oral evidence, the expert may be cross-examined by any party.

Instructions to single expert

32.11

1. If the court gives directions under rule 32.9 for a single expert witness to be used, each instructing party may give instructions to the expert witness.
2. When an instructing party gives instructions to the expert witness that party must, at the same time, send a copy of the instructions to the other instructing parties.
3. The court may give directions about the arrangements for –
   1. any inspection, examination or experiment which the expert witness wishes to carry out; and
   2. the payment of the expert witness’ fees and expenses.
4. The court may, before an expert witness is instructed –
   1. limit the amount that can be paid by way of fees and expenses to the expert witness; and
   2. direct that the instructing parties pay that amount into court in such proportions as may be directed.
5. Unless the court directs otherwise, the instructing parties are jointly and severally liable for the payment of the expert witness’ fees and expenses.

Power of court to direct party to provide expert report

32.12

1. If a party has access to information which is not reasonably available to the other party, the court may order that party –
   1. to arrange for an expert witness to prepare a report on any matter;
   2. if appropriate, to arrange for an examination to be carried out in relation to that matter; and
   3. to file the report and serve a copy on any other party.
2. The court’s powers under this rule may be exercised only on the application of a party.

Expert’s reports to be addressed to court

32.13

1. An expert witness must address his or her report to the court and not to any person from whom the expert witness has received instructions.

Contents of report

32.14

1. An expert witness’ report must –
   1. give details of the expert witness’ qualifications;
   2. give details of any literature or other material which the expert witness has used in making the report;
   3. say who carried out any test or experiment which the expert witness has used for the report;
   4. give details of the qualifications of the person who carried out any such test or experiment;
   5. If there is a range of opinion on the matters dealt with in the report –
      1. summarise the range of opinion; and
      2. give reasons for his or her opinion; and
   6. contain a summary of the conclusions reached.
2. At the end of an expert witness’ report there must be a statement that the expert witness –
   1. understands his or her duty to the court as set out in rules 32.3 and 32.4;
   2. has complied with that duty;
   3. has included in the report all matters within the expert witness’ knowledge and area of expertise relevant to the issue on which the expert evidence is given; and
   4. has given details in the report of any matter which to his or her knowledge might affect the validity of the report.
3. There must also be attached to an expert witness’ report copies of –
   1. all written instructions given to the expert witness;
   2. any supplemental instructions given to the expert witness since the original instructions were given; and
   3. a note of any oral instruction given to the expert witness; and the expert must certify that no other instruction than those disclosed have been received by him or her from the party instructing the expert, the party’s legal practitioner or any other person acting on behalf of the party.
4. If a report refers to photographs, plans, calculations, survey reports or other similar documents, these must be provided to the opposite party at the same time as the service of the report.
5. If it is not practicable to provide a copy of the documents referred to in paragraph (4), those documents must be made available for inspec­tion by the other party or any expert witness instructed by that party within 7 days of a request to do so.

Meeting of experts

32.15

1. The court may direct a meeting of expert witnesses of like speciality.
2. The court may specify the issues which the expert witnesses must discuss.
3. The contents of the discussion between the expert witnesses must not be referred to at the trial unless the parties agree.
4. The meeting may take place personally, over the telephone or by any other suitable means.
5. After the meeting, the expert witnesses must prepare for the court a statement of any issue within their expertise on which they –
   1. agree; and
   2. disagree, with their reasons for disagreeing.
6. Instead of, or in addition to such statement the court may direct that the expert witnesses prepare an agreed statement of the basic ‘science’ which applies to the matters relevant to their expertise.
7. The statement referred to in paragraph (6) must be as short as practicable.

Consequence of failure to disclose expert’s report

32.16

1. A party who fails to comply with a direction to disclose an expert witness’ report may not use the report at the trial or call the expert witness unless the court gives permission.
2. The court may not give permission at the trial unless the party asking for permission can show that it was not reasonably practicable to have applied for relief at an earlier stage.
   • Rule 26.8 deals with relief from sanctions.

Appointment of assessor       

32.17

1. The court may appoint an assessor to –
   1. advise the judge at the trial with regard to evidence of expert witnesses called by the parties;
   2. assist the court in understanding technical evidence; or
   3. provide a written report.
2. On making an order under paragraph (1), the court must decide
   1. what fee is to be paid to the assessor; and
   2. by whom.
3. Notwithstanding paragraph (2), the court may ultimately order any party to pay the fee of the assessor.
4. All communications apart from written instructions between the court and an assessor must be in open court.
5. Before requesting a written report or opinion from an assessor the court must allow the parties to make submissions in respect of the form and content of the questions to be asked.
6. Before giving judgment the court must provide the parties with the questions asked of, and any opinion given by the assessor and give them an opportunity to make submissions.