Civil Procedure - Expert Evidence Flashcards
Which rules relate to expert evidence?
UCPR 423-429V
What is an expert?
s425 Definition -
In relation to an issue arising in a proceeding, means a person who would, if called as a witness in the proceeding, be qualified to give opinion evidence as an expert witness in relation to the issue.
When can a party make an application to the court for directions about the use of expert evidence in the proceeding?
Rule 426(2)
At any time.
Rule 426(3)
a) can be application for that purpose; OR
b) on application for other relief
What are the directions that a court can make in relation to expert evidence?
Rule 427
(1) Any directions it considers appropriate.
(2) may also make one of the following (not limited)
a. direct report to be served within a particular period.
b. direct that expert evidence on a particular issue may NOT be adduced OR only adduced with the leave of the court.
c. direct expert evidence be adduced on particular issues only
d. limit the number of experts (for particular issue or area of expertise)
e. direction providing for the appointment and instruction of an expert
f. direction requiring experts in relation to the same issue confer before preparing their reports in relation to the issue (see also Rule 428)
g. if expert has prepared more than one report, direct that expert to prepare only one report that reflects their evidence in chief.
h. direct how and when expert evidence is to be used in a proceeding.
i. any other direction that may assist an expert in the exercise of their functions.
(3) No limit to any other power to make orders or give directions.
What rule relates to experts being directed by the court to hold conference and submit joint reports?
Why would a court make such an order?
Rule 428
Depends on the utility in doing so.
Considerations that would be relevant would include:
- whether such a conference might reduce the issues in dispute
- the likelihood of the meeting of minds as to the answer to some of those issues
- the reasons why the experts might be disagreeing
- the costs involved.
In holding a joint conference and preparing a joint report, what must the experts do?
Rule 429A(1)
a) MUST exercise independent judgment
b) MUST endeavour to reach agreement on any matter on which they disagree
c) MUST NOT act on any instruction or request to withhold or avoid reaching an agreement.
Can parties attend the expert conference?
Rule 429A (2)
No.
Conference must be held in absence of parties and report must be prepared without reference to, or instructions from the parties.
When should the experts give the reports to the parties?
Subject to 429B
Rule 429A(3)
Either when the court has directed or as soon as practicable after the conference has concluded.
Which rule outlines what communications the experts can have with the parties?
Rule 429B
Can a party engage an expert to provide a particular opinion?
Rule 429F
No An expert is not an advocate for a party and must not accept instructions from any person to adopt or reject a particular opinion.
Can an expert give evidence in chief orally?
Rule 429G
(1) Expert can only give evidence by report
UNLESS
(5) has leave of the court to give evidence orally
Does an expert need to be available for cross-examination?
429G
(3) if a party wants to tender their report, the expert needs to be available for cross-examination.
Which rule deals with the requirements for an expert report?
429H
(1) must be addressed to court and signed.
(2) must include the following information:
a) experts qualifications
b) all material facts on which report is based
c) reasons for each opinion in the report
d) reference to any literature/material relied on to prepare the report
e) description of any inspection, examination or experiment conducted. By whom (including qualifications of others), a description of what was done and the result.
f) If there is range of opinions in report, a summary of those and an explanation why expert adopted a particular opinion.
g) if expert believed report will be incomplete or inaccurate without qualification - the qualification.
h) summary of the conclusions reached by the expert
i) a statement about whether any access to readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.
When must a party disclose the report?
429I
a) if plaintiff - within 90 days after close of pleadings.
b) if defences - within 120 days after close of pleadings.
c) if neither P/D - within 90 days after the close of proceedings for the party.
Immunity
429J
