Wednesday, April 27, 2011

Expert evidence 103 - Formal report requirements

In my previous two posts 'Expert evidence 101' and 'Expert evidence 102' I discussed what expert evidence is and when it is required. When an expert is retained for the purpose of giving an opinion for the trial of a matter, the expert must prepare a report setting out his or her opinion and, if the party retaining the expert is happy with the report, the report is given to the other side in support of that party's case.

So what are the formal requirements for preparing an expert report? Compliance with the formal requirements is crucial for ensuring that the trial of the matter goes smoothly, and that there are no technical objections which could prevent a Court from admitting the report and the evidence of the expert. I have provided a discussion of the formal requirements below.

Thanks to the implementation of uniform state Court Rules (which brought the Magistrates' Court Rules largely into alignment with the Supreme and County Court Rules) the formal requirements for an expert's report are now the same. I discussed the new uniform Magistrates' Court Rules in my post 'Magistrates' Court General Civil Procedure Rules 2010 - greater uniformity'. All hyperlinks below are to the Supreme Court (General civil Procedure) Rules 2005 (Vic).

Firstly, as soon as practicable after the expert is engaged and before the expert makes a report, the expert needs to be provided with a copy of the expert witness code of conduct set out in Form 44A (Rule 44.03). This is usually provided as an attachment to the letter of instruction to the expert.

The expert witness code of conduct emphasises the expert's duty to assist the Court impartially and without favouring the party retaining the expert. The provision of the code to the expert is crucial, and in his or her report, the expert must acknowledge that he or she has read the code and agrees to be bound by it (Rule 44.03(2)(b)).

If an expert does not acknowledge that he or she has read the code and agrees to be bound by it then this may result in the Court rejecting the report and preventing that party from adducing expert evidence which is the subject matter of that report. This is because a Court faced with a report without this acknowledgement could assume that the expert 'did not prepare his report with a conscious appreciation of the obligations imposed' by Form 44A (see Investmentsource v Knox Street Apartments [2007] NSWSC 1128).

The omission of this statement could happen for the following reasons:
  • Accidential omission, in which case the omission could be cured by an expert giving oral evidence that before making the report he or she read the code and prepared the report on the basis of the code (see Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485);
  • The expert did not read the code before preparing his or her report, in which case the report is likely to be rejected as the expert did not prepare his report with a conscious appreciation of the obligations imposed by Form 44A (see Investmentsource v Knox Street Apartments [2007] NSWSC 1128); or
  • The report was prepared before the litigation was contemplated, in which case the report is likely to be rejected for the reason set out above.
Form 44A also reiterates the obligations concerning the contents of the report set out in Rule 44.03. I have set out these obligations in Rule 44.03(2) and Form 44A below:
The report shall state the opinion of the expert and shall state, specify or provide-
(a) the name and address of the expert;

(b) an acknowledgement that the expert has read the code and agrees to be bound by it;

(c) the qualifications of the expert to prepare the report;

(d) the facts, matters and assumptions on which the opinion is based (a letter of instructions may be annexed);

(e) (i) the reasons for;
(ii) any literature or other materials utilised in support of;

(iii) a summary of-
the opinion;

(f) if applicable, that a particular question, issue or matter falls outside the expert's field of expertise;

(g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications;

(h) a declaration-

(i) that the expert has made all the enquiries which the expert believes are desirable and appropriate; and

(ii) that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;

(i) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate;

(j) whether an opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason.
Rule 44.03(4) imposes additional requirements for the signing of the report and the reference to extrinsic materials, as follows:
(4) Any report provided by the expert pursuant to this Rule- 
(a) shall be signed by the expert; and

(b) shall be accompanied by clear copies of any photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter to which the report refers.
The above formal requirements are mandatory and Order 44 suggests that non-compliance with the formal requirements could prevent a party from adducing the expert evidence which is the subject matter of a report (see Rule 44.03(1) and Rule 44.05).

Once the expert report is finalised, and the party is happy to rely upon that report, that party must file and serve the expert report no later than 30 days before the day fixed for trial (Rule 44.03(1)(b)). This act usually waives legal professional privilege which attaches to the report and the instructions to the expert (see Roads Corporation v Love [2010] VSC 253 for a detailed discussion of waiver of privilege).

Normally there are orders for the filing and service of expert reports. Sometimes there are complex orders which include sequential provision of expert reports (e.g. plaintiff provides expert report as to loss, defendant provides expert report in response within 30 days, plaintiff provides final report, defendant provides final report in response within 30 days), but this depends on the complexity of the matter. Orders concerning the filing and service of reports are usually tailored for the nature and complexity of the dispute.

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