Part 33

Experts and Assessors

 

Contents of this Part

Expert's overriding duty to the court Rule 33.1

Experts - way in which duty to court is to be carried out Rule 33.2

Expert's right to apply to the court for directions Rule 33.3

General duty of the court Rule 33.4

Court's power to restrict evidence Rule 33.5

Court's power to appoint a single expert Rule 33.6

Joint instructions to experts Rule 33.7

Expert's reports to be addressed to the court Rule 33.8

Contents of report Rule 33.9

Use by one party of expert's report disclosed by another Rule 33.10

Meting of experts Rule 33.11

Consequence of failure to disclose expert's report Rule 33.12

Appointment of assessor Rule 33.13

Fees for experts or assessors Rule 33.14

Cross Examination of Court Expert Rule 33.15

 

Expert's overriding duty to the court

33.1 (1) It is the duty of an expert witness to help the court

impartially on the matters relevant to his expertise.
    1. This duty overrides any obligations to the person from whom he has received instructions.

 

Experts - way in which duty to court is to be carried out

33.2 (1) Expert Evidence presented to the court must be, and

should be seen to be, the independent product of the

expert uninfluenced as to form or content by the

exigencies of the litigation.
    1. An expert witness must provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.
    2. An expert witness must state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded view.

(4) An expert witness must make it clear if a particular matter or

issue falls outside his expertise.

(5) If an expert's opinion is not properly researched then this

must be stated with an indication that the opinion is no more

than a provisional one.

(6) If the expert cannot assert that the report contains the truth,

the whole truth and nothing but the truth without some

qualification, that qualification must be stated in the report.

(7) If after exchange of reports an expert changes his view on a

material matter such change of view must be communicated

to the other party.

 

Expert's right to apply to court for directions

33.3 (1) An expert may apply to the court for directions to

assist him in carrying out his functions as an expert

and his duty to the court.
    1. Where an expert applies for directions under this rule, he must give notice of the application to the party instructing him.
    2. The court may direct that notice be given to any other parties.

 

General duty of the court and of the parties

33.4 Expert evidence must be restricted to that which is reasonably required

to resolve the proceedings justly.

 

Court's power to restrict expert evidence

33.5 (1) No party may call an expert witness or put in an expert's

report without the court's permission.

    1. The general rule is that the court's permission should be given at a case management conference.

(3) The court may give permission on or without an application.
    1. No oral or written expert's evidence may be called or put in unless the party wishing to call or put in that evidence has served a report of the evidence which the expert intends to give.
    2. The court shall direct by what date such report shall be served.
    3. The court may direct that that evidence shall be given by one or more experts -
    1. chosen by agreement between the parties; or
    2. appointed by the court; or
    3. appointed in such way as the court may direct.
    1. The expert evidence shall be given in written form and accordingly an expert giving that evidence shall not attend court unless the court otherwise orders.
    2. The court may direct that part only of an expert's report be disclosed.

 

Written questions to expert not called to give evidence orally

33.6 (1) Where an expert report is to be used in evidence and the expert

will not be called to give evidence orally a party may put written

questions to an expert instructed by another party or appointed

by the Court.

(2) No more than one set of questions may be put to the witness

without the court's permission.

(3) The expert's answers shall be treated as part of his report.

 

Court's power to appoint a single expert

33.7 (1) Where the court gives permission to call an expert

witness or put in evidence an expert's report, it

may direct that evidence is to be given by a single

expert appointed -
    1. jointly by the parties; or
    2. by the court; or
    3. by the court from a list prepared by the parties; or
    4. in such manner as the court may direct.
    1. If the court gives such a direction, it must specify in it the issues on which the expert is to report.
    2. A single expert may be appointed -
    1. instead of the parties instructing their own experts; or
    2. to replace experts instructed by the parties; or
    3. in addition to experts instructed by them; or
    4. to assess the evidence to be given by experts instructed by them

 

Joint instructions to experts

33.8 (1) The general rule is that

    1. parties must give instructions to a single expert; and
    2. experts instructed by the parties must seek to carry out any examination jointly.
    1. A party instructing an expert must give every other party notice of -
    1. the name and address of the expert, or
    2. the names and addresses of a number of experts one of whom the party intends to instruct; and
    3. the nature of the instructions to be given to him.
    1. Notice under paragraph (2) must be such as will give the other party enough time and information -
    1. to instruct the same expert; or
    2. to instruct another expert to carry out an examination with the expert named in the notice; or
    3. to instruct another expert to prepare a report jointly with that expert.

(Rule 61.6 deals with the possible effect on an order for costs if this rule is not followed before or after the issue of a claim)

 

Power of Court to direct party to obtain and share expert evidence

33.9 (1) The Court may order a party -

(a) to arrange for an expert to prepare a report on any

matter and, if appropriate, to arrange for an

examination to be carried out in relation to that matter; and

(b) to file the report and serve a copy on any other party.

(2) On giving such a direction, the court may -

(a) identify the person who is to prepare the report; and

(b) specify which party is to be responsible for the cost of

preparing it.

(3) The court's powers under this rule may be exercised only on the

application of a party.

 

Expert's reports to be addressed to the court

33.10 An expert must address his report to the court and not to any

person from whom he has received instructions.

 

Contents of report

33.11 (1) An expert's report must

    1. give details of the expert's qualifications; and
    2. give details of any literature or other material which the expert has used in making his report; and
    3. say who carried out any test or experiment which the expert has used for the report; and
    4. give details of the qualifications of the person who carried out any such test or experiment; and
    5. where there is a range of opinion on the matters dealt within in the report -
    1. summarise the range of opinion; and
    2. give reasons for his opinion.
    1. At the end of an expert's report there must be a statement that -
    1. the expert understands his duty to the court; and
    2. he has complied with that duty; and
    3. his report includes all matters within his knowledge and area of expertise relevant to the issue on which his expert evidence is given; and
    4. he has given details in his report of any matters which might affect the validity of his report

(Rules 33.1 and 2 set out the expert's duty to the court)
    1. There must be also attached to an expert's report copies of -
    1. all written instructions given by the expert; and
    2. any supplemental instructions given to the expert since the original instructions were given; and
    3. a note of any oral instructions given to the expert

and the expert shall certify that no other instruction than those disclosed have been received by him from the party instructing him, his attorney or any other person acting on behalf of the party.
    1. Where expert evidence refers to photographs, plans, calculations, survey reports or other similar. documents, these must be provided to the opposite party at the same time as the exchange of reports.

 

Use by one party of expert's report disclosed by another

33.12 Where a party has disclosed an expert's report in accordance

with the court's directions or otherwise, any other party may

use that expert's report as evidence at the trial.

 

Meeting of experts

33.13 (1) The court may direct a meeting of experts of like

speciality.
    1. The court may specify the issues which the experts must address when they meet.
    2. Any such meeting is to be regarded as "without prejudice".
    3. After the meeting the experts must prepare for the court a statement -
    1. of any issues within their expertise on which they agree; and
    2. of any such issues on which they disagree and their reasons for disagreeing.
    1. Instead of, or in addition to, such statement the court may direct that the experts prepare an agreed statement of the basic 'science' which applies to the matters relevant to their expertise.
    2. Such a statement shall be short.

 

Consequence of failure to disclose expert's report

33.14 (1) A party who fails to comply with a directions to disclose an

expert's report may not use the report at the trial or call the

expert unless the court gives permission.

(2) Thc court may not give permission at the trial unless the party

asking for permission can show that it was not reasonably

practicable to have applied for relief at an earlier stage.

(Rule 26.4 deals with applications for relief.)

 

Appointment of assessors

33.15 (1) The court may appoint one or more persons to assist it as

assessors.

(2) Before doing so, it must state the questions on which it wants assistance.

 

Fees for experts or assessors

33.16 (1) The court shall decide -

    1. what fee is to be paid to an expert or assessor; and

(b) by whom.

(2) This does not affect any decision as to the party who is

ultimately to bear the cost of the expert or assessor.

 

Cross-Examination of Court Expert

33.17 Where an expert appointed by the court gives oral evidence he may

be cross-examined by any party.