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Section 20: Expert evidence
Proposal 38
Provisions aimed at countering the inappropriate and excessive use of expert witnesses
should be adopted, giving the court control of the scope and use of expert evidence to be
adduced.
Proposal 38 (for giving the court greater discretionary powers to exclude expert evidence)
should not be adopted.
Proposal 39
Measures aimed at countering lack of independence and impartiality among expert witnesses
should be adopted :-
(a)
Declaring the supremacy of the expert's duty to assist the court over his duty to
the client or the person paying his fees.
(b)
Emphasising the impartiality and independence of expert witnesses and the
inappropriateness of experts acting as advocates for a particular party.
(c)
Annexing a code of conduct for expert witnesses and requiring experts to
acknowledge their paramount duty to the court and a willingness to adhere to
the code of conduct as a condition for allowing expert reports or evidence to be
received.
(d)
Requiring expert reports prepared for use by the court to state the substance of
all material instructions conveyed in any form, on the basis of which the report
was prepared, abrogating to the extent necessary, any legal professional
privilege attaching to such instructions, but subject to reasonable restrictions
on further disclosure of communications between the party and such expert.
(e)
Permitting experts to approach the court in their own names and capacity for
directions without notice to the parties, at the expense of one or all of the
parties, as directed by the court.
A rule along the lines of CPR 35.3 declaring that expert witnesses owe a duty to the court
which overrides any obligation to those instructing or paying the expert should be adopted.
A rule along the lines of CPR 35.10(2) combined with Part 36 of the NSW rules should be
adopted, making it a requirement for the reception of an expert report or an expert's oral
testimony that (a) the expert declares in writing (i) that he has read the court-approved Code
of Conduct for Experts and agrees to be bound by it, (ii) that he understands his duty to the
court, and (iii) that he has complied and will continue to comply with that duty; and (b) that
his expert report be verified by a statement of truth.
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