 |  |
|
 |
 |
 |
 |
|  | |  | |
20.5
Proposal 39(d)
Proposal 39(d), for requiring experts to disclose the substance of the instructions upon
which their report is based, received a mixed reaction. Those in support
tended to
accept that the content of an expert report could well be influenced or "steered" by the
instructions given so that a rule requiring disclosure was needed to enable reports to be
properly assessed. The AE pointed out that it has for many years been best practice to
summarise the instructions received in the expert's report :-
"Over ten years ago the Academy's Judicial Committee, then under the Chairmanship of The
Rt Hon The Lord Slynn of Hadley PC produced the Model Form of Expert's Report which
has been in use ever since and has effectively been adopted by CPR. At that time their
lordships decided that in order to properly evaluate an Expert's Report it was necessary to
know what they were instructed to do. Indeed most experts would acknowledge that the
opinion expressed in a report may appear dramatically different with different instructions.
Accordingly it has been the practice for there to be a section in a good expert report in which
the instructions were summarised."
The AE is therefore in principle in favour of disclosure but it acknowledges that
important practical problems remain unresolved. In particular, parties may have
obtained privileged expert advice before the proceedings. If, however, the expert were
to be used as an expert witness in the litigation, the loss of privilege in relation to the
report prepared as such witness may undermine the confidentiality of the earlier
advice, placing pressures on the necessarily confidential relationship between a party,
his lawyers and the expert. To avoid this, parties may feel driven to incur the
additional expense of instructing a different set of experts to act as witnesses while
retaining as advisers, their original experts whose instructions would remain protected
from disclosure. Uncertainties also remain as to the extent to which opposing parties
may be allowed to probe instructions where expert reports are said to be suspect,
leading to a significant number of applications for cross-examination, disclosure and
so forth.
Notes
Including the Bar Association (subject to further consultation), the LAD, the DOJ, the APAA (if a
code was established), the HKIA, one set of barristers' chambers, a solicitors' firm and an individual
respondent.
|
 |
|