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K16.2. Inappropriate or excessive use of experts
| 490. | Experts once tended to come only from certain professions, such as doctors, accountants, engineers or architects. The courts now encounter witnesses tendered as experts in almost every conceivable field of human endeavour. That is no bad thing in itself provided the discipline and expertise are real and provided the court is actually assisted by such evidence. However, in many cases, expert evidence is adduced where none is called for and on occasion, the existence of the allegedly expert discipline is doubtful. Frequently, too many experts are deployed addressing too many issues, when such evidence is really only needed or helpful on one or two key matters. |
| 491. | A problem of this nature suggests the need for case management. However, such a course was inhibited by doubts as to whether the court could, on procedural grounds, exclude expert evidence where the parties wished to use it. (Note 436) As previously discussed in connection with witness statements, this kind of difficulty has now been overcome in England and Wales. The express rule-making power conferred by the Civil Procedure Act 1997 Schedule 1, para 4, has led to the promulgation of various rules including CPR 32.1 and CPR 35.1 giving the court powers to control the scope of the evidence on particular issues and to exclude evidence that would otherwise be admissible. Also as previously noted, if similar judicial powers are to be provided for in Hong Kong, it would be desirable for a similar legislative amendment to be made. |
| 492. | To counter the problem of inappropriate or excessive use of experts, Lord Woolf proposed that the court should have "complete control over the use of evidence, including expert evidence." (Note 437) This is reflected in CPR 35.1 which states :- |
| "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings." | ||
| CPR 35.4 goes on to provide :- |
| "(1) | No party may call an expert or put in evidence an expert's report without the court's permission. | |
| (2) | When a party applies for permission under this rule he must identify - |
| (a) | the field in which he wishes to rely on expert evidence; and | ||
| (b) | where practicable the expert in that field on whose evidence he wishes to rely. |
| (3) | If permission is granted under this rule it shall be in relation only to the expert named or the field identified under paragraph (2)." |
| These are powers which enable the court, on application or of its own motion, to disallow objectionable, unnecessary or excessive expert evidence. Moreover, where the parties both want to put in expert evidence, the court has power under CPR 35.7(1) to direct that a single joint expert be appointed, (Note 438) a power discussed further later. | |
| 493. | Supporting rules aimed at encouraging useful and proportionate expert reports, at restricting costs and at promoting an equality of arms include the following :- |
| * | CPR 35.4(4) which allows the court to limit the amount of expert fees and expenses which one side may recover from the other. | |
| * | CPR 35.6 which allows a party one opportunity to put to the other side's expert (or a single joint expert, if one has been appointed) written questions about his report with a view to clarifying it. This appears to be a useful and economical power. | |
| * | CPR 35.9 which enables a party to seek the court's direction for access to information held by the other side but not reasonably available to himself. |
Notes
| 436 | WIR, p 185 §17. <back> |
| 437 | WFR, p 139 §13. <back> |
| 438 | CPR 35.7(1): "Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to given by one expert only." <back> |
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