Independence of opinion the most important aspect of an expert’s independence?

On By Geoff GreenIn Expert Witness, Experts in SingaporeLeave a comment

[this is an expanded version of a earlier blog, as recently published in the July 2023 edition of the APIEx newsletter]

Background

An international manufacturer of insulation products was suspicious about an Australian rival’s claimed fire rating for a feature product.  In particular, it was concerned that the fire rating from a ceiling only test was presented to potential purchasers as the result from a walls and ceiling test. In practical terms, this meant it overstated its fire-resistance qualities.

It commissioned its own scientific analysis, which seemed to confirm its suspicions. 

From a business point of view the international manufacturer was impacted by what it saw as unfair competition, but in the aftermath of the 2017 Grenfell Tower fire in London – in which a fire spread rapidly via combustible aluminium composite cladding, resulting in 72 deaths – there was also a significant fire safety issue potentially in play.

The international manufacturer arranged for its lawyers to write to the Australian manufacturer outlining their concerns and providing copies of their own test results, and asked it to correct what were said to be misleading and deceptive representations.  The Australian manufacturer declined, and told the international manufacturer that it should raise any concerns it had with the relevant authorities.

The international manufacturer then implemented a “counter-marketing” campaign – dramatically named “Project Shield and Sword” – including the distribution of a narrated video to key customers and decision makers.  The video showed footage of the international manufacturer’s own test of its rival’s feature product, with an outcome that contradicted the claimed rating.

When the Australian manufacturer learned about the counter-marketing campaign, it commenced legal action seeking injunctions to stop any further distribution, and damages for the loss that it said had been caused by the campaign.

A central question for the trial was whether the original testing, and the dramatic re-test, were conducted in accordance with the fire safety testing standards, and so technical expert evidence was critical.  There were also important legal questions around the interpretation of standards – drafted for engineering purposes, rather than to facilitate legal analysis – notably, whether transitional provisions allowed the Australian manufacturer to rely upon a ceiling only test that had been conducted prior to a change in the standard that appeared to now preclude their use.

The international manufacturer engaged the fire safety engineer who undertook the original Project Shield and Sword analysis as one of its independent technical experts.  At trial, his independence was challenged twice.  First, the Australian manufacturer said that it was wrong for his original analysis to be described as “independent” as part of the counter-marketing campaign.  Secondly, it argued that his role in the original analysis, and other earlier work for the international manufacturer demonstrated that he was a “hired gun,” and not truly independent.  The Australian manufacturer said that his evidence should not be admitted in the proceedings because it was the product of a lack of independence.

The expert’s independence

The expert was subject to specific cross-examination about his understanding of the Practice Note and Expert Witness Code of Conduct, and it was clear that the court was satisfied that he had complied with those requirements, not just in relation to his evidence to the court, but critically, also in relation to the original analysis.

There was also forensic analysis of the communication between the international manufacturer’s lawyers and the expert, which, the Australian manufacturer argued, “improperly pre-empted the opinion or statements sought [from the expert].”

On this point the court found that the communication “neither occasioned nor established any want of independence on [the expert’s part]” noting the guidance in Boland v Yates Property Corporation Pty Ltd [1999] 74 ALJR 209:

“For…legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is…not an honest opinion that he or she holds or is prepared to adopt…counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance…so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions.”

Clearly the expert’s response in cross-examination impressed the court, which noted that “the opinions that he expressed…were his own and were arrived at independently of any held within [the international manufacturer].”

It appears that the independence of approach actually demonstrated by the expert outweighed any concerns about a theoretical risk to his independence.

Weaponisation!

The international manufacturer claimed that it was merely passing on the work of the experts, without making the alleged representations.  The court did not accept that argument, finding instead that the international manufacturer had “weaponised” the analysis, distributing it “effectively and with enthusiasm,” – but, notably, ruled that:

“[The international manufacturer] cannot be criticised for wanting to make as much as it could of the views that [the expert] expressed; and the fact that it did so is not evidence of some want of independence on [the expert’s] part. The alignment of [the expert’s] opinion with [the international manufacturer’s] interests arose as a result of the correct construction of the Transitional Provision.”

Conclusions

In Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340,[1] the Federal Court of Australia held that:

  • The Evidence Act did not “require untrammelled independence or impartiality (however preferable those qualities plainly are).”
  • The international manufacturer’s original engagement of the expert did not compromise his independence, and his views were arrived at independently – even if they were later weaponised as part of Project Shield and Sword.
  • The international manufacturer’s concerns were genuinely held, and it sought to verify those concerns through a series of tests including those by independent testing bodies, and it repeatedly sought to engage with the Australian manufacturer about the results of that testing over an extended period, prior to commencing Project Shield and Sword.
  • The international manufacturer did make the alleged representations that the product was non-compliant and could not safely be used, and it did represent that the original Project Shield and Sword analysis was independent.
  • The transitional rules did not allow the Australian manufacturer to rely on the outdated ceiling only test, and so the representations made by the international manufacturer were factually correct.  Not only was the Australian manufacturer unsuccessful in its attempts to prevent the further distribution of the Project Shield and Sword materials, the court also held that it should be prevented from making claims about fire rating based on the ceiling only test.

[1] The subject of an appeal, per Pirmax Pty Ltd v Kingspan Insulation Pty Ltd (No 2) [2022] FCA 1526 at [3].

Crystal ball not required

On By Geoff GreenIn Banking, Expert WitnessLeave a comment

Background

The owner of a large development site in the Western suburbs of Sydney (the Owner) entered into negotiations to set up a joint venture to develop the land.  From his point of view, it was essential that a $20m loan and mortgage on the land be transferred to the new joint venture, because he did not have any other way to repay the loan.

It turned out that the joint venture agreement signed after extensive negotiations didn’t transfer the debt as he wanted – in fact, it included a clause which, critically, required him to pay out the loan and arrange clear title once planning approval was obtained.

In due course planning approval was obtained.  The Owner was unable to pay out the loan and clear the mortgage – just as he had anticipated.  The JV partner relied upon that non-compliance with the JV agreement to call a default, and force the early sale of the undeveloped property.

In Lindsay-Owen v HWL Ebsworth Lawyers [2023] NSWSC 68 the Owner took legal action claiming damages from the legal firm that assisted with the JV negotiations and the drafting of the JV agreement (the Lawyer).  He said that if he had understood that the JV agreement did not include the debt transfer, he would have negotiated to have it added, and if that was not possible, that he would have arranged for the bank loan to be extended so that he could negotiate a similar arrangement with other interested parties.

His bank had earlier issued a default notice of its own, and so the likely response of the bank to a hypothetical extension request was a key, contested, question before the Court.

The Banking Expert Witness

The Owner arranged a report from a Banking Expert Witness to provide an opinion about how the bank would have responded if it had been asked for an extension.

The Lawyer objected to the banking expert’s report.  It said that a prediction about a response to a hypothetical question was outside the scope of matters that an expert was able to express an opinion upon.

The Court agreed.  It said that the evidence of the banking expert witness was:

…inadmissible on the question of what [the Bank] would have done in 2010. His report does not satisfy the requirements of s 79 of the Evidence Act 1995. [The Expert] purports to express opinions about what [the Bank] might have done, about what [the Bank’s] state of mind was, and even about what an alternative joint venture partner might have done. These opinions are not evidence of banking practice or any other fields of expertise based on specialised knowledge.

Outcome

The rejection of the banking expert’s report wasn’t fatal to the Owner’s case.  Having determined that the question of the bank’s response was a question for the Court, not an expert, the Court concluded that the bank would have granted an extension if it had been asked i.e., in fact agreeing with the inadmissible view of the banking expert.

The Court held that the Owner was entitled to damages, to be assessed separately.

Comment – In my experience it would be more usual to be asked about the response of a “reasonable lender” in the circumstances, rather than to be asked to predict what a nominated party might do – but depending on the circumstances and the question, even a question framed that way might be regarded as too speculative. 

The opinion of a banking expert might still assist the parties, however, without speculating.  A banking expert could be asked to identify the matters that reasonable lenders take into account when making such discretionary decisions, and to identify whether or not those matters were in evidence in the particular case – while still leaving the ultimate question to the Court.

Expert evidence on pouring water from a kettle?

On By Geoff GreenIn Expert WitnessLeave a comment

Background

Contact between two cars in stationary traffic ‘so inconsequential that it caused no damage’ led to legal action by two sisters who were in one of the cars, which involved ten professional or expert witnesses: two engineers, a motor assessor, four GPs, an orthopaedic surgeon, and two consultant psychiatrists.

The traffic incident itself was simple and easily resolved – it is the wide ranging obiter that will be of more interest, in a judgement of the High Court of Ireland (Cahill v Forristal; O’Riordan v Forristal [2022] IEHC 705) which extended to a comprehensive criticism of the waste of police, medical, and Court resources resulting from the claim; and broader criticism and detailed commentary about the inappropriate use of experts.

Inappropriate use of experts

There were three referrals to medical specialists, critically, made by a Plaintiff’s lawyer, rather than by her doctor – which the Court highlighted as contrary to an earlier decision of the High Court of Ireland.

The Court explained that not only were referrals by solicitors less credible because they were ‘prima facie evidence that there is in fact no medical basis for [the] referral,’ the reports resulting from those referrals risked a finding of inadmissibility, because it was arguable that a medical report procured by a solicitor without any medical grounds was not ‘reasonably required to determine the proceedings’ – as the Court Rules require.

The Court found that engineering evidence in the case ‘was of little or no value’ – but it was careful to note that such a conclusion was ‘not a reflection of the engineer’s undoubted expertise’ and that he ‘was asked to give this expert evidence and he would not be expected to refuse the offer of well-paid work.’

The Court also directed criticism toward the unnecessary use of experts on matters ‘of common knowledge.’ That criticism was not prompted by the case to hand –  it was noted as a response to an application in another, completely unrelated, personal injuries case in which a party sought an adjournment to accommodate the limited availability of an engineering expert who was to present engineering evidence on ‘how to pour water from a kettle.’

Outcome

The Court identified several false claims made by the two plaintiffs: that the other driver – in fact, a non-drinker– smelled of alcohol, that airbags had discharged when they had not, that the other driver had left the scene of an accident when he had actually stopped to confirm with the sisters that that there was no damage to their car; and concluded that they had failed to prove that the incident occurred as they claimed, or that it caused the alleged injuries.

The plaintiffs were as unsuccessful as the unrelated adjournment application!

Overturned!

On By Geoff GreenIn Concurrent evidence, Expert Witness1 Comment

Background

In a previous blog I wrote about the decision in Robinson v Liverpool University Hospital NHS Foundation Trust v Mercier – which resulted in a £50,543 third party costs order against a dental expert witness who was subject to severe criticism, including the observation that his evidence was “simply absurd.”

The expert had expressed the opinion that a dental surgeon’s examination was deficient because it did not identify that the referral and x-rays (which recorded a tooth that in fact had already been removed) were both out of date.

Under cross-examination, the expert had agreed that since the patient was under general anaesthetic when the error was discovered – and hence could not be consulted – that the conservative course was to leave the tooth in place.  It seems likely that it was that concession which resulted in the patient claim being withdrawn – but that is speculation on my part, the Court did not make a specific finding.

The Appeal

In Robinson and Liverpool University Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB) the High Court held that:

  • It was true that the expert was not a maxillofacial surgeon – but the procedure was one that would have been carried out by a general dental practitioner but for the patient’s “morbid fear of dental procedures,” and there was no suggestion that it was not within the competence and scope of the clinical practice of a general practitioner dentist.
  • There was nothing illogical or partisan about the expert’s conclusions, supported at least in part by the other expert and by the dental surgeon’s own acknowledgement of his error.
  • The judge at first instance was wrong to conclude that the expert “had stepped outside the boundary of his expertise in giving his opinion about breach of duty and causation” and it was “not an exceptional case and did not involve a flagrant or reckless disregard of an expert’s duty to the court.”

The expert was successful in having the Third Party Costs Order set aside.

Independence of opinion the most important aspect of independence?

On By Geoff GreenIn Expert WitnessLeave a comment

Background

An International Manufacturer of insulation products was dubious about a local rival’s claimed compliance with fire hazard requirements.  It commissioned its own scientific analysis, which seemed to confirm its suspicions.

The International Manufacturer arranged for its lawyers to write to the Local Manufacturer outlining their concerns and providing copies of their own test results, asking it to correct what were described as misleading and deceptive representations.  The Local Manufacturer declined, and told the International Manufacturer that it should raise any concerns it had with the relevant authorities.

The International Manufacturer then implemented a “counter-marketing” campaign – dramatically named “Project Shield and Sword” – by which it distributed the results of its analysis, including a narrated video, to market participants.

In due course the Local Manufacturer learned about Project Shield and Sword, and commenced legal action seeking injunctions to stop future distribution, and claiming compensation for damage that it said had been caused by the actual distribution.

The International Manufacturer engaged the fire safety engineer who undertook the original analysis as one of its independent technical experts.  At trial, his independence was challenged twice.  First, the Local Manufacturer said that it was wrong for his original analysis to be described as “independent” as part of the counter-marketing campaign.  Secondly, it argued that his role in the original analysis demonstrated that he was a “hired gun,” and that his evidence should not be admitted in the proceedings because it was the product of a lack of independence.

The Expert’s independence

The Expert was subject to specific cross-examination about his understanding of the Practice Note and Expert Witness Code of Conduct, and it was clear that the Court was satisfied that he had complied with those requirements, not just in relation to his evidence to Court, but critically, also in relation to the original analysis.

There was also forensic analysis of the communication between the International’s lawyers and the Expert, guided by Boland v Yates Property Corporation Pty Ltd:

“For…legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is…not an honest opinion that he or she holds or is prepared to adopt…counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance…so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions.”

Clearly the Expert’s response in cross-examination impressed the Court, which noted that “the opinions that he expressed…were his own and were arrived at independently of any held within [the International Manufacturer].

Conclusions

In Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340 the Federal Court held that:

  • The Evidence Act did not “require untrammelled independence or impartiality (however preferable those qualities plainly are).”
  • The International Manufacturer’s original engagement of the Expert did not compromise his independence, and his views were arrived at independently – even if they were later “weaponised” as part of Project Shield and Sword.
  • The International Manufacturer did make the alleged representations that the product was non-compliant and could not safely be used; and it did represent that the original analysis was independent – but those representations were factually correct, and so the Local Manufacturer was unsuccessful.

Your own expert costs the best guide to the other side’s costs

On By Geoff GreenIn Expert Witness, Experts in SingaporeLeave a comment

Background

A shareholder was successful in its claim of minority oppression, obtaining a buyout order which valued its 37.57% shareholding at US$481.6m. 

The question of costs was made more complicated because the proceedings began in the High Court of Singapore, but were later transferred to the Singapore Commercial Court: should post-transfer costs be assessed by reference to the normal civil standard which applied in the High Court (per order 59), or was there a different regime to be applied in the Singapore International Commercial Court (per order 110, rule 46)?

The assessment of the valuation expert’s fees

In addition to the question of principle, there were specific questions in relation to a S$3.3m fee account from the minority shareholder’s valuation expert, described by the Court (in the context of its assessment) as “clearly deficient and inadequate,” with no detail of hourly rates, time spent, or the nature of the work done.

Once further detail was provided, the majority shareholder took the position that the fees had “not been reasonably incurred.”  The Court was concerned that this position was adopted without any detail about the fees of its own experts, and it invited the majority shareholder to provide that information. 

On determining that the majority shareholder’s own expert had charged S$2.82m – which exceeded the Court’s 69.59% allowance of the S$3.3m account – the Appeal Court declined to interfere with the original exercise of discretion.

Outcome

In Senda International Capital Ltd v Kiri Industries Ltd [2022] SGCA(I) 10 the Singapore Court of Appeal provided the following guidance in relation to “reasonable costs” for proceedings in the SICC:

  • The Singapore International Commercial Court regime was “intended to restore or compensate the other party for the expense it had incurred in the legal proceedings as long as this been incurred…sensibly,” not to mirror the normal civil regime.
  • An assessment of whether costs were reasonable was “an open-ended inquiry to be undertaken with due regard to the specific facts of the case at hand.”
  • The party claiming costs must provide sufficient information to allow assessment, which would typically include detail about hours charged and by whom, and their seniority and hourly rates; and an explanation as to the nature of the work.
  • Once that information was provided, the evidential burden shifted to the unsuccessful party.  Although the “best evidence” would “often be evidence of its own incurred costs” the unsuccessful party could provide other evidence, and also “point to flaws evident on the face of the costs claim.”

“Deeply unattractive and dishonest” – but no conspiracy

On By Geoff GreenIn Banking, Concurrent evidence, Expert Witness, Loan workoutsLeave a comment

Background

Following borrower default a Russian Bank took possession of real estate in the Port of St Petersburg, which was eventually sold via a Court-supervised public auction.

The borrower and its CEO and shareholders (the Borrower) took action against the Bank and its chairman (the Bank) in the High Court of England and Wales, claiming relief under Russian law for “unlawful harm.”  The Borrower said that it was the victim of a so-called ‘raid,’ designed to misappropriate the real estate for the benefit of the Bank, and carried out with the assistance of corrupt public officials.

The Borrower was unsuccessful at first instance, but secured orders for a re-trial on appeal.  However, in granting those orders the Court of Appeal was careful to recognise that very few of the original findings of fact had been challenged, and so, to avoid “another massive trial” it restricted the tender of fresh evidence, ultimately limited to evidence about the valuation of assets.

Expert witness evidence

Each side brought a new expert, rather than rely on those whose work had been severely criticised at first instance.

The Borrower’s expert had limited experience with Russian assets – a single assignment conducted “sometime in the last 20 years,” and under cross-examination he created “the clear impression that he knew that his personal experience of valuing Russian assets was extremely limited, a lack of experience…that he was distinctly unwilling to admit until pressed.”

The Court found that his evidence demonstrated “a marked lack of familiarity with the detail of the [first instance] report even though…his report was based on it,” as well as “a marked failure to recognise that his role was to assist the court by an independent and dispassionate statement of his views without descending into the arena to argue the [Borrower’s] case.”

Rather than value the assets as income producing real estate in their existing form he valued them as development projects, producing a valuation figure that the Court concluded was “wholly unrealistic.”

The Bank’s expert had professional qualifications, and significant experience valuing port assets and infrastructure in the St. Petersburg region, and the Court preferred her evidence justifying a much lower figure consistent with the actual auction outcome, which it described as “well thought-out, carefully expressed and justified firmly without descent into advocacy.”

Outcome

In Bank St Petersburg OJSC & Anor v Arkhangelsky & Anor [2022] EWHC 2499 the High Court of England and Wales held that:

  • The CEO had an “ego-centric view of the world,” regarding criticism as “either lamentably misinformed or inferentially dishonest” and he was “deluded” about the value of the assets and the viability of his development plans.
  • It was possible that the Bank might have thought that it could benefit from a raid, but such a suggestion was “trespassing into the realms of speculative fiction” and was completely inconsistent with the Bank’s actions in taking a significant write off before it had finished its enforcement.  The calling of a default was a simple case of the Bank protecting its own commercial interests in, and it occurred after a “readily understandable” loss of trust in the CEO.
  • Much of what followed the loss of trust was driven by the Bank’s desire to defend itself against the conduct of an untrustworthy borrower who seemed prepared to take whatever steps were open to him to challenge the Bank’s security.
  • Previous litigation demonstrated that “both parties lost all sense of commercial reasonableness in the battles they fought” with conduct on both sides that “was both deeply unattractive and dishonest.”
  • The “missing piece” in the Borrower’s argument was the absence of any evidence that there were any other parties interested in bidding, let alone bidding at a higher price.
  • The Borrower had failed to prove its conspiracy case, and it had failed to prove that it had suffered any harm had there been a conspiracy.

Third party costs order against expert

On By Geoff GreenIn Expert Witness1 Comment

[edit on 28 January 2023 to note that this decision was overturned on appeal, see my blog here]

Background

A dental surgeon removed two teeth but left a third tooth in place in the belief that it was restorable.  It was the decision to leave the third tooth alone that was ultimately the subject of a claim for negligence by the patient, which critically, was supported by expert evidence provided by a dentist.

The “expert” evidence

In the course of his videolink evidence the dentist conceded that he had no experience of surgical removal of teeth in the last twenty years, had no experience at all with the relevant consent process; and agreed that his counterpart expert “was better placed” to provide an expert opinion.  Immediately after his evidence concluded, the patient’s solicitor withdrew her claim, and following that surrender, the defendant’s solicitor flagged that it would consider an application for a costs order against the expert, at which point it was discovered that the expert had turned his camera off and left the proceedings (to collect his son from school, it transpired).

Outcome

The defendant did decide to seek a third party costs order, arguing that the expert should not have given evidence at all, and that he had “patently failed” his ongoing duty to ensure that he was the appropriate expert to assist the Court.

In Robinson v Liverpool University Hospital NHS Foundation Trust v Mercier the County Court held that:

  • The expert’s evidence was “simply absurd.” His report presented “wholly unsustainable conclusions” and his opinion had “fluctuate[d] to whatever he [felt would] win the case.”
  • The expert
    • had demonstrated “a gross lack of understanding of the seriousness of his role…[and] a flagrant reckless disregard of his duty to the court.”
    • Made no “efforts to assist the court…instead wilfully sticking to his case theory irrespective of the questions asked or the evidence given.”
    • Had “shown a flagrant reckless disregard for his duties to the Court” from the outset in preparing a report on subject matter in which he had “no expertise.”
  • The claim would not have proceeded without the expert’s report and so it was appropriate that he pay £50,543.85 in respect of the defendant’s costs.

Golden advice from Lord Hamblen SCJ

On By Geoff GreenIn Banking, Expert Witness, Experts in Singapore, SME lendingLeave a comment

A keynote paper presented to the Expert Witness Institute Online Conference in May 2022 by Lord Hamblen of the Supreme Court of the United Kingdom is now available online, here.

For those of us who do expert work, “The modern expert: personal insights and current issues” is well worth reading in its entirety, but in my opinion the best advice is:

[17] …do what you can to make it easy for the judge to understand your expertise and your expert views. This involves explanation. Do not assume prior knowledge and understanding. In simple and clear language try and make it easy for a judge to assimilate and to understand.

Make clear what your underlying assumptions are and set out all the building blocks which lead to the conclusions that you reach.

That may involve covering what seems like basic ground for you, and possibly for the judge, but it is far better to err on the side of cautious simplicity than diving straight in to the key disputed issues.

[18] …Make a conscious effort to simplify and to clarify.

[20]…All the opinions you express and the conclusions you draw must be supported by reasoning. Those reasons must be clearly set out and explained.

Make sure, however, that the supporting reasons are cumulative rather than individually critical. You want to avoid the risk of your expert opinion being undermined if one building block is taken down.

Try and build as effective defences as you can for any opinion you express. This means careful and convincing reasoning.

[21] …do what you can to try and gain the judge’s trust and confidence. This means demonstrating objectivity and an awareness of your duty to the court, not just your client.

Be prepared to make concessions even if that appears to be against your client’s interest in winning the case. Acknowledge errors or omissions, if made.

[28]…the clearer your oral evidence is, the better it will be understood and the greater its likely impact. Clarity in the giving of oral evidence involves keeping to the point and making your points in shortly expressed but plain language. Avoid speeches.

[29]…Show that you have been even handed and are concerned to arrive at the right answer rather than simply the answer that may suit your client. As it is put in one of the cases to which I shall be referring [my note: this one], give the impression that your evidence would have been exactly the same if you had been instructed by the other side.

[33] There is nothing more fatal to the acceptability of an expert’s evidence than concerns about their independence and impartiality.

[34] …avoid being an advocate. It is counsel’s job to argue the case. That is not the role of the expert. If you give your evidence in an argumentative manner that will inevitably undermine that evidence and risk allegations of partiality. Counsel may try to provoke you and to get a rise from you, but you must retain your clear-headed objectivity.

Make points, explain points, but do not argue them. Never get into an argument with counsel, however provoked you may be. If you are not being treated fairly in cross examination then your counsel or the judge will usually intervene. Do not, however, take matters into your own hands.

[35] …know the limits of your expertise…do not stray into areas of non-expertise. You are being asked to give expert opinion evidence. That opinion evidence is only admissible because it is expert evidence. But keep to your expert opinions.

Do not stray into judgments as to the facts. Ensure that the evidence you give is and remains the expression of your expertise and nothing else.”

New County Court rules for expert evidence

On By Geoff GreenIn Concurrent evidence, Expert WitnessLeave a comment

[Important update: From 1 September 2025 the Victorian County Court Commercial Division operates under updated case management rules, set out in the revised Omnibus Practice Note PNCO 1-2025 (the Practice Note).  The use of a single joint expert is no longer the mandated default position]

From 1 August 2022 the Victorian County Court Commercial Division operates under new case management rules, set out in the Omnibus Practice Note PNCO 2-2022 (the Practice Note).

As discussed below, there are significant changes to the role of expert evidence and the work of the expert witnesses.  Most notable are the default use of jointly instructed sole experts (broadly similar to the regime introduced in Singapore in April, discussed here, briefly), and the facilitation of conclaves where there is more than one expert.

The previous position

Under the previous regime in the County Court:

  • There was no restriction on the use of expert evidence.
  • Each side selected their own expert, and formulated the questions (including assumptions) that they wanted the expert to answer.
  • The Court had power to order experts to confer and produce a Joint Report.
  • The experts would give evidence concurrently (i.e., side by side: colloquially known as a “hot-tub”).

The post 1 August 2022 position

From a (non-lawyer) expert’s point of view the significant changes in relation to expert evidence are:

  • No expert evidence without permission – A party wanting to introduce expert evidence must obtain permission of the Court, by an application which provides “brief reasons explaining why expert evidence is required.”
  • Sole joint expert by default – The application must identify whether the parties agree on a single joint expert (the default position) or “whether it is contended that the appointment of more than one expert is appropriate.”
  • Selection of the sole joint expert – each party will table a list of up to three candidates, with the Court to determine the appointee if there is no agreement between the parties.
  • Brief to the sole joint expert –The plaintiff will prepare a document setting out a list of proposed questions, proposed assumptions, and a list of the documents to be provided to the expert. The parties will confer and seek to agree on those matters, with the Court to determine those questions if there is no agreement.
  • Objection to the evidence of the sole joint expert – A party dissatisfied with the qualifications, impartiality or evidence of the sole joint expert may object by giving written notice within 28 days of the receipt of the report; and they may seek leave to adduce other or additional expert evidence.
  • Joint expert conclave and report – If there is to be more than one expert, then absent orders to the contrary those experts will each prepare a separate report (as before), and will then meet in conclave, which may be facilitated by a judicial registrar or Commercial Division lawyer, to produce a joint report (in a “Scott Schedule”[1] format where appropriate).
  • Communication whilst the joint report process is underway – The default orders include a very clear prohibition on communication between the parties, their employees, agents, and legal representatives, and the experts, until the joint report has been finalised.
  • The role of a facilitator – the default orders provide that:
    • The facilitator is to chair the expert conference.
    • The facilitator may request from the parties “such further information or direction as the facilitator considers appropriate.”
    • Subject to any order, the facilitator shall be responsible for the precise form of the joint report
  • Complex Cases List – The default orders for the Complex Cases list specify that any conclave is to be chaired and conducted by a facilitator.

My comments on the changes

  1. The requirement to obtain permission to introduce expert evidence does not seem onerous: there’s no Singapore-style pre-condition that expert evidence must “contribute materially to the determination of an issue in the case.”
  2. The appointment of a single joint expert may be very helpful where the facts are clear and the assumptions straightforward, but may be problematic in situations where determining the facts is a central issue of the litigation.
  3. The sole joint report will, by intention, be unchallenged and uncritiqued, and so the Court will lose the benefit of each expert’s critique of the other’s report, as occurred under the previous regime.
  4. Explicit endorsement of the Scott Schedule format (which I like) will help to spread its use.
  5. The availability of a facilitator for conclaves is noteworthy. In my experience, most conclaves are conducted in a constructive and collegiate way.  On occasion I’ve felt frustrated about what appears to be a counterpart’s fixed adherence to a position (noting that in fairness I can’t claim to be an unbiased observer!) – but I haven’t experienced a facilitated conclave, so I have no insight about whether facilitation solves that problem.
  6. The Practice Note explains that the changes are expected to result in cost savings:

    Parties should expect to incur greater expense in the process of engaging and instructing the single joint expert, but significant savings in having to contribute only a proportion of the costs of a single expert, both for the preparation of any expert report and at trial.

    There may be circumstances where those savings are offset by the increased use of behind-the-scenes “shadow” (or “dirty”) experts, to provide advice about the framing of the questions and the agreed assumptions; and there will also be costs in the event of an objection to the evidence of the sole joint expert.

[1] Defined in the Practice Note Dictionary as “a form of landscape table which sets out each claim and the contention of each party or expert with respect to it. Scott Schedules are named after their inventor, his Honour George Scott, Official Referee of the UK High Court of Justice 1920 – 1933.”