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K16.3. Partisan experts
| 494. | Where experts are used as "hired guns" the consequences are counter-productive and unacceptable. Far from helping the court to resolve expert issues, competing partisan experts tend to make resolution of such issues more difficult and confusing. The court may sometimes be compelled to try to evaluate to some degree the credibility of each expert - an exercise that should have no place in the assessment of expert evidence. |
| 495. | Such difficulties have of course been recognized for a long time. Before the CPR came into effect in England and Wales, the duties of experts were summarised by Cresswell J in the The Ikarian Refeer [1993] 2 Lloyds Rep 68. His Lordship stressed the expert's need to be independent, to confine himself to his area of expertise and to cooperate openly with the opposing side's experts. |
| 496. | After the CPR came into operation, in the English Court of Appeal's decision in Stevens v Gullis [2000] 1 All ER 527, Lord Woolf pointed out that the duties in The Ikarian Refeer continue to be reflected in, and given emphasis by, the new rules. |
| 497. | Reforms adopted in various jurisdictions all begin with the same premise, namely, that the function of the expert is to help the court by providing independent and impartial advice - not to act as an advocate for his client. (Note 439) This is reflected in rules which emphasise that the expert's duty to the court overrides his duty to his client. |
| 498. | Thus, CPR 35.3 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." |
| 499. | The Australian Federal Court's Guidelines for expert witnesses similarly provide :- |
| * | an expert witness has an overriding duty to assist the Court on matters relevant to the expert's area of expertise | |
| * | an expert witness is not an advocate for a party and | |
| * | the expert witness's paramount duty is to the Court and not to the person retaining the expert. (Note 440) |
| 500. | The NSW rules are similar. They embody an "Expert Witness Code of Conduct", which states, among other things, as follows :- |
| "An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert's area of expertise. | ||
| An expert witness's paramount duty is to the Court and not to the person retaining the expert. | ||
| An expert witness is not an advocate for a party." (Note 441) | ||
| 501. | To reinforce this duty, the rules in these jurisdictions tend to require the expert to acknowledge the duty and to agree to adhere to a code of conduct which aims to promote independence and impartiality. |
| * | CPR 35.10(2) requires the expert report to state that the expert understands his duty to the court and that he has complied with that duty. | |
| * | Part 39 of the NSW rules 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 code and agrees to be bound by it. Similarly, oral expert evidence cannot be received without a similar acknowledgement in writing. |
| 502. | Moreover, to enhance the expert's independence and to help him comply with his undertaking to the court, the CPR permit an expert witness to approach the court for guidance in his own capacity without giving notice to the parties, the expense of such an application being made part of the costs of the proceedings. (Note 442) |
| 503. | In case parties may seek to inhibit the expert's impartiality by the nature of the instructions given, CPR 35.10(3) and (4) seek to reveal any such attempts, providing as follows :- |
| "(3) | The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written. | |
| (4) | The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions - |
| (a) | order disclosure of any specific document; or | ||
| (b) | permit any questioning in court, other than by the party who instructed the expert, |
| unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete." | |
| 504. | It is suggested in the White Book (Note 443) that the rule abrogating privilege should be construed as relating only to instructions given in relation to reports prepared for use of the court. It cannot have been intended to require disclosure of all instructions to experts including those relating to reports commissioned for private use. Such instructions in relation to reports commissioned in contemplation of litigation have traditionally been protected by legal professional privilege and general abrogation of such privilege cannot have been intended. |
| 505. | Reports tendered to the court are in a different category. As indicated above, the function of such reports is to assist the court, given on the footing that the expert's paramount duty is to the court and not to the client. There could accordingly be no objection to disclosure of the instructions upon which the report is based. Indeed, without knowledge of the substance of the instructions, the report could be misleading. (Note 444) |
| 506. | It is worth noting in passing that professional associations have been working to enhance the professionalism of experts as witnesses and providing infrastructural support for reforms. One such association is the Academy of Experts which is based in London but which regularly conducts training and education sessions in Hong Kong. Such associations have an important role to play in countering unsatisfactory practices, by offering continuing education and developing codes of practice for their members as well as making available advice on specific issues of professional ethics where needed. |
Notes
| 439 | WFR, p 139 §11, §25. <back> |
| 440 | See GTC, pp 143 <back> |
| 441 | NSW Supreme Court Rules, Schd K. <back> |
| 442 | CPR 35.14. <back> |
| 443 | White Book 35.10.5. <back> |
| 444 | It is most unlikely that a rule requiring such disclosure could be said to infringe the right to confidential legal advice conferred by article 35 of the Basic Law. <back> |
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