UCPR Chp 11 (r 390 - 448) Flashcards
What chapter and part of the UCPR deals with expert witnesses?
Chapter 11 part 5
UCPR: What is the duty of an expert?
r 429F any expert has a duty to assist the court, and an expert is not an advocate for a party to the proceeding, must not accept instructions to adopt or reject a particular opinion, and must comply with a code of conduct.
UCPR: How is expert evidence given?
R 429G (1) an expert may only give evidence in chief by report
(2) the report may be tendered as evidence on the proceeding only if is disclosed under this part or with leave
(3) can only rely on report if party produces expert for cross examination if required
(4) can only rely on report if expert confirms he has read, and agrees to be bound by the code of conduct
(5)-(6) expert can only give oral evidence in chief with leave and after agreeing to be bound by the code
UCPR: What is the duty of the parties when calling an expert witness?
r 429E (1) as soon as expert is appointed a copy of the expert code of conduct must be given to the expert… and
(2) a party must not give instructions or allow instructions to be given to the expert to adopt of reject a particular opinion
UCPR: What rule deals with the requirements of an expert report ?
r 429H (1) report must be addressed to the court and signed (2) makita v sprowles requirements (3) must explain why opinion is not a concluded opinion if applicable and (4) must confirm certain matters in report i.e. agree to be bound to code
UCPR: When must an expert report be disclosed?
r 429I where a party intends on relying upon an expert report must disclose the report as soon as practicable or in any case
(a) if the party is the plaintiff - 90 days after close of pleadings
(b) if the party is the respondent - 120 days after close of pleadings
(c) if the party is neither the P or R - 90 days after the close of pleadings
UCPR: What is the procedure following change of opinion?
r 429K where an expert changes opinion, in an material way, on an opinion included in a report… the expert must as soon as practicable after the change of opinion give written notice and the reasons for the change (1) to the registrar - if court appointed or (2) to the part who appointed the expert…and where this notice is given the registry or party must apply for directions
UCPR: How are experts appointed?
r 429G An expert may be appointed by agreement
r 429L An expert may be jointly appointed by the parties
r 429R An expert may be appointed by the court on own initiative or by application of a party
UCPR: Question - Civil proceeding - breach of contract - the main issue is whether there was a failure to use suitable materials for the product which caused it to fail - both parties are intending to call experts on the same issue - Should the parties apply for directions? and if so, explain the process…
r 427(2)(f) given the parties intend on calling an expert in relation to the same issue should seek a direction that they confer before report is prepared
r 428 the court can also direct the parties hold an expert conference to attempt to resolve any disagreements and the court may order a joint expert report about the conference…the court can also provide specific directions about what the experts are to discuss at the conference
r 429A provides that the conference msut be in absence of the parties and must prepare report without reference to instructions…report must be disclosed when directed by the court or as soon as practicable after conference
UCPR - Are things done or said during joint expert conference under r 429A admissible at the hearing?
r 429C yes but only if all of the parties to the proceeding agree
UCPR - where two parties agree to jointly appoint an expert what must the parties do?
r 429L parties may appoint an expert to write a report
r 429M a joint appointment may only occur where (1) appointing parties agree in writing about ss(a) matters and ss(b) expert agrees to be bound by code and (2) a copy of the parties agreement must be signed and served on any other party to the proceeding
r 429N appointing parties must give an agreed statement of facts on which the expert is to base report…and if the appointing parties do not agree on statement of facts the court may make directions about this or each of the appointing parties must give the expert a statement of facts
UCPR - When is a joint expert report taken to be disclosed?
r 429O - When a copy has been given to each of the parties and within 14 days after the last appointing party has been disclosed a copy…a copy must be given to the non appointing party
UCPR - When parties have appointed a joint expert…can the either of the parties engage another expert to give expert evidence on that issue?
r 429P no
UCPR - Where parties have agreed to appoint a joint expert…do the parties have a right to cross that expert?
r 429Q - yes
UCPR - When can a party apply to the court for a direction about the use of expert evidence?
r 426(2) a party may apply at anytime to the court for directions about the use of expert evidence
UCPR - What is the rule number regarding directions the court may give for experts
r 427
UCPR - Question - You have been briefed to draft pleadings (defence, and NOITD) and the other side on a phone call has said they are going to get an expert…can you apply for a directions about the expert evidence now or do you need to wait until they have actually appointed an expert?
r 426(1)(b) you do not need to wait you can apply for r 427 direction when you become aware that another party intends on calling an expert in the proceeding
UCPR - Question - The parties to a civil proceeding have appointed a joint expert under r 429L. The expert needs to conduct an inspection of the property which is subject to the proceedings, however the parties can’t agree about when and how this should occur. The expert has had a ‘gut full’ and needs to conduct an inspection so he can finalise his report. Does the expert have any recourse under the UCPR?
Would your answer change if the expert was court appointed?
yes the expert can apply under r 429V for a direction to facilitate the preparation of the report he will need to serve the application on parties…and the application can relate to a direction about inspect, examination, or experiment required for the report.
no as per r 429V(1) allows court appointed experts to apply as well
