A Developing New Process Using Expert Evidence in Civil Litigation
The use of expert ‘conclaves’ or joint reports of experts by Australian courts is becoming more and more prevalent in matters other than building and construction.
The NSW District Court and Supreme Court in NSW now both provide for any expert witnesses with the same expertise to confer prior to a hearing in order to provide a jointexpert report.
Simply put, in civil legal proceedings in NSW, the claimant’s expert and the defendant’s expert have to attend a conference together to discuss and identify the issues, the agreements and disagreements between the experts, and to then produce a joint report on these matters.
The purpose of joint reports is to assist the just, quick and cost effective disposal of proceedings. The idea is that by experts identifying and narrowing the issues between them, it thereby narrows the issues the court is required to decide.
While a joint report is not necessarily required or appropriate in all civil legal proceedings, where a joint report is appropriate it will have to be obtained early in the proceedings, (always prior to a hearing), and may even occur before court ordered mediation.
The benefits of a joint report format in adducing expert evidence include:
- Clarifying the evidence – the experts each deal with the same questions and issues. They are then required to outline their agreement or disagreement with the opinion of the other expert, providing clarity to the parties and the court on the issues.
- Provides the opportunity for an early assessment of whether to proceed to a hearing or a settlement – this applies for both claimants and defendants.
Throwing experts together poses significant challenges for both parties, but particularly the claimant in the matter as there are significant costs involved in obtaining a joint report.
While this process sounds as though it is straightforward and simple, and unlikely to incur significant costs, the reality is can be expensive. The experts will have to review a substantial amount of material and answer a number of questions, all with another expert with an opposing opinion sitting next to them and disagreeing with what they are saying. Not surprisingly experts in any field tend to butt heads and this joint report process, while potentially beneficial to the court and the parties, can rub experts the wrong way and result in a report which is not beneficial to one or both parties.
Costs involved in joint reports:
- The legal work which the legal representatives for both parties have to put in in order to agree on, and prepare the questions for the experts to answer. The legal representatives should also agree on rules of engagement for the conference and the written report, to ensure that the process runs as smoothly as possible.
- A neutral location is required for the conference, with facilities to enable the experts to have meaningful discussions and decide on the report content. The conference can be a lengthy one and so consideration has to be given to what will enable the experts to provide their report. This includes the possible provision of computers, a projector, bathroom facilities, food and drinks. Another essential requirement is the appointment of a co-ordinator/facilitator in order to have an independent person directing the discussions and ensuring that a joint report is actually produced out the conference.
- The expert’s time in attending the conference and any additional work undertaken to complete the joint report. This is in addition to the expert’s fees for giving evidence at the hearing.
Unfortunately there has been limited guidance from the courts as to how these ‘conclaves’ should be conducted. As a result, this process has not always been successful or beneficial to the parties or the court.
Both parties need to take special care with this process because once a joint report is finalised the report is binding and there is no further recourse for either party.
Sherilyn Dunkley
Senior Associate