The Rules of Court (Amendment) Rules 2000 attempt to condense the procedures for adducing evidence from expert witnesses of the parties. How far does it succeed? Are there loopholes in the new Rules? Jeeva Joethy takes us through the rules, concisely summarising the important points whilst using case law to aid in his interpretation of the rules.
Parties involved in complex commercial, construction and negligence litigation have often sought the assistance of experts to augment their armoury in court battles. The substantial expenses incurred in instructing a multitude of experts to overcome opponents is a major generator of unnecessary costs in civil litigation.
The Rules of Court (Amendment) Rules 2000, which came into operation on 1 January 2001, have, inter alia, streamlined the procedure of adducing evidence from experts of parties. In this connection, a whole new order, Order 40A, has been introduced. Appropriate amendments to Order 25 and consequential amendments to paragraph 25 of Form 46 (Summons for Directions) have also been made. The court may also, of its own motion, appoint independent experts to inquire and report upon any question of fact or opinion.
Who is an Expert?
For the purposes of Order 40A, rule 1(2), an expert is defined as 'an expert who has been instructed to give or prepare evidence for the purpose of court proceedings.' On the face of it, the definition appears somewhat tautologous and one must resort to common law to determine who an expert is. (Also note section 47 of the Evidence Act (Cap 97).)
Only a person who has obtained sufficient skill, experience or knowledge in his trade, profession or calling may be considered an expert. Russell J in R v Silverlock [1894] 2 QB 766 at 771 asked, 'The question is, is he peritus? Is he skilled? Has he adequate knowledge?' One could become an expert in a specialisation without any formal or rigorous training. In Commercial Union Assurance Co plc v Lee Siew Khuan [1990] SLR 1140, Chan Sek Keong J (as he then was) held that knowledge on any particular matter need not be acquired professionally. In this case, the court held that it was entitled to rely on the evidence of an advocate and solicitor, as he was shown to know enough about diamonds to assess their value.
Weight to be Attached to Expert Evidence
Under the amendment to Order 40, rule 1, the court may, on its own motion, appoint an independent expert or experts to inquire and report upon any question of fact or opinion. There had been a tendency, deprecated by Lord Woolf, of parties to introduce a plethora of experts to buttress their case on scientific or technical matters. Some of these experts were expected to be 'hired guns', advancing their cause within the framework of an adversarial litigation system. This tendency will be curtailed by the recent amendments.
Expert evidence is admissible since it may be of assistance to the court. The judge, having considered it, may attach what weight he deems fit to the opinion in his finding. The expert cannot usurp the function of the judge.
Analysis of Order 40A
Order 40A, rule 1 prescribes that the court may, before the trial, limit the number of experts. The court will try to ensure that expert evidence is 'truly necessary and proportionate'.
Experts' Overriding Duty to the Court
A most succinct statement of principles is embedded in Order 40A, rule 2. In practice, when a dispute requiring the services of an expert or experts manifests itself, a party will nominate and engage such experts. It is entirely possible that an expert instructed and paid by a particular party may indeed formulate a report inimical to that party's interests. He may wish to discharge himself. This act of discharging himself may signal to the other side that his party's case is weak. How does he conduct himself in this conflicting situation? An 'expert' in Order 40A refers to one instructed to prepare evidence for the court proceedings, and not for any collateral purpose.
The duty of an expert appears not so much as to advance the cause of those instructing him, but to assist the court as objectively as possible within his expertise. Clients used to the excessively adversarial nature of civil litigation would have to be told that 'their' expert must be impartial.
Order 40A, rule 2(2) makes the position abundantly clear. This duty (to assist the court) 'overrides any obligation to the person from whom ("the expert") has received instructions or by whom he is paid'. A whole host of questions loom large. Does the expert assume the mantle of an 'officer of the court' with its attendant responsibilities? Can he remain silent, and 'condemn with faint praise'? Should he hide his light under a bushel and explicitly limit his preparation for consideration for pre-action purposes and not for court proceedings?
The duties and responsibilities of experts have been outlined by Cresswell J in National Justice Compania Nowiena SA v Prudential Assurance Co Ltd ('The Ikarian Reefer') [1993] 2 Lloyds' Rep at 81-2. They include the following:
Requirements of Experts' Evidence (Order 40A, rule 3)
The requirements are of two types - formal and substantial. They are governed by specific rules.
The evidence must be contained in a report and signed and exhibited in an affidavit. The report should begin with the expert's qualifications and cite authorities or material relied on for the report. The issues which he was requested to consider must also be highlighted. Futhermore, details of any experiment carried out and which has been used for the report together with the name and qualifications of the person carrying out the experiment must be furnished.
Where there is a range of opinion on matters dealt with in the report, the expert must summarise the range and, most importantly, give reasons for his opinion. He must also provide a summary of his conclusions.
The report must also include a statement of belief of correctness of his opinion. He must also reaffirm his understanding that he owes an overriding duty to the court. If an expert does not comply with the requirements of this rule, he may be debarred from appearing as an expert in the case. (Stevens v Gullis [2000] 1 All ER 527 (CA).)
Expert report writing is a fine art. Experts are discouraged from embarking on discursive frolics. These rules require them to be focused on the issues in dispute in the court proceedings.
Written Questions to Expert (Order 40A, rule 4)
A comprehensive 'water-tight' expert's report may not be adequate. The opposing party, within 14 days of receipt of the expert's affidavit - or such longer period as may be allowed, may apply to the court to put written questions to the expert. His answers will be treated as part of his report.
This is a welcome position for the expert, counsel and court. The expert will have ample time to research, review the relevant material and give cogent written answers, rather than answer questions in cross-examination from the witness box. If the expert does not adequately answer the questions put to him, the party instructing him may not rely on his evidence or recover costs of the expert from any other party; the expert may also be ordered to give a 'further and better' answer (Order 40A, rule 4(5)).
Discussions Between Experts (Order 40A, rule 5)
This rule should be read in juxtaposition with the latest amendments to Form 46. The new paragraph 25 of Form 46 regulates discussions between experts for the purpose of identifying issues and reaching an agreement if possible. The experts will also furnish a joint written statement of the agreed issues, issues on which they disagree and reasons for the disagreement.
Order 40A, rule 5 goes much further and provides that the court may, at any stage, direct a discussion between the experts to identify the issues and, if possible, agree on them. The court may also require a statement from the experts on issues which they agree and issues which they disagree, and to furnish reasons for the disagreement. The contents of these court-directed discussions remain 'without prejudice' unless otherwise agreed. To preserve the independence of the experts, a party will not be bound by the agreement of its expert at these discussions.
Conclusion
The new provisions governing expert witnesses are a worthy response to Lord Woolf's criticism. The overriding duty of the expert is not to his client but to the court. An impartial expert's opinion will also carry more weight with the court than a 'partial' expert. As the litigation process becomes more refined, it may be necessary for Practice Directions on various aspects of experts' evidence to be issued. Clarifications may be made by way of written questions and answers. All these factors will no doubt lead to speedier and more open and affordable justice for litigants.
Jeeva Joethy
Choo & Joethy