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20.4
Proposal 39(a) to (c)
There was overwhelming support for the first three measures proposed.
The
principles which underlie them are well-known and established in law.
It was,
however, generally accepted that it would be beneficial for these principles to be given
more prominence and to be brought home individually to each expert every time an
expert report is issued or expert testimony given. The AE described the declaration
envisaged in Proposal 39(c) as "an immensely important provision" which "is part of
the reason for the change in mind-set" regarding expert witnesses amongst the legal
profession and experts alike. In the light of the consultation response, the Working
Party recommends that Proposals 39(a) to (c) should be implemented.
overriding duty to
the court" and states :-
"(1)
It is the duty of an expert to help the court on the matters within his expertise.
(2)
This duty overrides any obligation to the person from whom he has received
instructions or by whom he is paid."
CPR 35.10(2) reflects Proposal 39(b) and provides :-
"At the end of an expert's report there must be a statement that—
(a)
the expert understands his duty to the court; and
(b)
he has complied with that duty."
Moreover, as pointed out in the practice direction at 35PD2.3, an expert report must be
verified by a statement of truth.
Proposal 39(c) finds a precedent in Part 39 of the NSW rules which provides that an
expert report shall not be admitted into evidence unless it contains an acknowledgment
by the expert that he or she has read the relevant code of conduct and agrees to be
bound by it. Similarly, the rule provides that oral expert evidence cannot be received
without such an acknowledgement in writing.
Notes
Supporters included the Bar Association, the BSCPI, the Law Society, the AE, the LAD, the DOJ,
the APAA, the HKMLA, the HKIA, the HKIS, three firms of solicitors, one set of barristers'
chambers, an academic from the Hong Kong Polytechnic University and two individual respondents.
The BCC was however opposed to this Proposal.
Summarised in The Ikarian Reefer [1993] 2 Lloyds Rep 68 and still applicable after introduction of
the CPR: Stevens v Gullis [2000] 1 All ER 527.
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