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Focus: Civil Justice Reform – June 2008

VLRC civil justice reform report: expert evidence

In brief: In the second of our three-part series considering the recommendations made in the Victorian Law Reform Commission's report into the reform of the civil justice system, Partner Nick Rudge (view CV) and Senior Associate Abby Gill consider the reforms proposed in the area of expert evidence.

How does it affect you?

  • The VLRC's report contains six recommendations in relation to expert evidence, primarily focusing on addressing two themes:
    • judicial control over experts and expert evidence; and
    • perceptions of adversarial bias amongst experts.
  • The proposed changes are expected to increase judicial intervention in litigants' use of expert evidence and the way that expert evidence is received by the court.
  • The VLRC has also recommended that clarification of the law of privilege in relation to expert evidence is required, suggesting that where an expert is to give evidence in a court proceeding, privilege should not apply to all communications or documents which arise in connection with that expert's engagement, including the expert's reports.

Recommendations for reform of expert evidence

Chapter 7 of the Victorian Law Reform Commission's (the VLRC) report, Changing the role of experts, makes six recommendations with respect to the role of expert evidence in Victorian proceedings.

Consistent with one of the key objectives of the civil justice review, a number of the changes recommended by the VLRC will bring Victoria into line with other Australian jurisdictions. The recommendations are also intended to address perceptions of adversarial bias in the attitudes of expert witnesses and the excessive cost of expert evidence, by stressing the primacy of the court's role in dealing with expert evidence and through initiatives intended to improve expert independence.

The changes are proposed in spite of the VLRC's acknowledgement that the extent of any 'problem' in the area of expert evidence is very difficult to ascertain. It is therefore difficult to see how the potential benefits resulting from the proposed changes can be quantified. The report also acknowledges that some of the proposed changes may result in additional costs. In spite of the absence of significant empirical evidence of the 'problem' in Victoria, the VLRC accepts that adversarial bias in Victoria is an issue sufficiently noteworthy to warrant the introduction of measures intended to alleviate this concern.

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A new framework for judicial control of expert evidence

The VLRC recommendations draw heavily from the results of an expert evidence review recently undertaken by the New South Wales Law Reform Commission1 (the NSWLRC review). The VLRC's key recommendation in this area is to introduce to Victoria provisions in substantially similar terms to the new procedural rules recently implemented in NSW2 following the NSWLRC review, subject to three areas of departure. These changes extend the express powers that Victorian courts already possess in this area, which enable judges to control the time for service of expert reports and to direct experts to confer and prepare a joint report specifying the matters that are agreed and those that are not.

In order to improve the court's control over the role of experts, the VLRC's key recommendation is the introduction of further initiatives, which include a 'purposes clause' to underscore the court's role as the controller of expert evidence. Parties will also now be required to obtain the court's leave to adduce expert evidence. Professional negligence claims are excluded from this requirement in NSW. The VLRC report suggests that this exclusion may not be appropriate in Victoria, although the reasons for this conclusion are not discussed.

Courts will have a very broad express discretion to give directions on how parties can use expert evidence. This will enable a judge to limit the number of experts giving evidence and the issues in dispute that can be the subject of expert evidence. This power could be used to prohibit expert evidence on a particular issue.

Similarly, courts will also have wide powers in relation to an expert's reports and in relation to any joint report the court requires. For example, in relation to joint reports, the court may direct the experts to opine by reference to factual assumptions. The court will also have broad powers to determine how their evidence will be given, including concurrently with the other parties' experts in a panel format, also known as 'hot-tubbing'. It will still be possible for judges to require experts to attend joint conferences and to prepare a joint report identifying matters on which the experts agree, and highlighting contentious areas between them. In view of the emphasis on judicial management of expert evidence, which is at the heart of the VLRC's recommendations, it is possible that judges will use these powers more often than is currently the case if the changes are adopted.

Single joint experts and court-appointed experts

The VLRC has proposed that judges should have a discretion to direct that a single joint expert, or a court-appointed expert, be engaged to give opinion evidence on a specific issue. In spite of what were apparently, in the main, unsupportive submissions (notably including the Supreme Court of Victoria) on the concept of a single joint expert, the VLRC suggests a discretion that would permit the court to direct that expert evidence on an issue be limited to that of a single jointly instructed expert. The use of a single joint expert or court-appointed expert is unlikely to address concerns about the cost of expert evidence and may, in fact, add to these costs, as parties will be more likely to engage their own 'shadow' experts to advise them on appropriate areas for cross-examination. The submissions opposing the concept of a single joint expert argued that there is a real risk that legitimate differences of opinion between experts in a particular field of expertise will be suppressed. The submission from the Supreme Court of Victoria also raised as a concern a fundamental tension between the concept of a single expert and the judicial decision-making function, by which the judge hears from both parties and makes a finding of fact.

While not going so far as to advocate a presumption in favour of single experts, as is the case in Queensland, the VLRC points to the appropriateness of single experts in straightforward cases.

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Measures designed to address 'adversarial bias'

The VLRC recommends three further proposals, intended to focus on the expert's overriding duty to assist the court:

  • An extension to the expert's code of conduct, introducing a duty to comply with the court's directions and an express duty requiring an expert to work cooperatively with other experts.
  • The procedural rules currently require that experts are to be provided with a copy of the expert witness code of conduct when they are instructed. The expert must acknowledge that he or she has read it and will abide by it when they prepare their expert report. There are no sanctions for a breach of the code. In a departure from the NSW regime, the VLRC has recommended that experts should not be immune from sanctions that are applicable to other participants in the civil justice system, including costs orders in appropriate cases. There are, however, no recommendations for specific court sanction rules directed to experts.
  • In a further departure from the NSW approach, which only requires experts to disclose fee arrangements that are contingent on the outcome of the litigation, the VLRC has proposed that all experts be obliged to disclose the financial arrangements they have entered into with their instructing solicitors at the time their report is provided to the court.

In a final point of departure from the NSW approach, the report recommends the retention of the mandatory requirement for defendants to disclose a medical report obtained as a result of an examination of the plaintiff. There is no equivalent provision in the NSW provisions.

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Clarity regarding privilege issues

Finally, the VLRC report proposes that the treatment of legal professional privilege in the area of expert evidence requires clarification. With the exception of reports prepared following medical examinations in personal injury litigation, parties are currently only required to disclose an expert opinion if they intend to rely on it at trial. A draft of that report and communications between the party's lawyers and the expert may attract legal professional privilege. Where a party's lawyers obtain an expert report and the party decides not to rely on it at trial, legal professional privilege is attached to that report and to any communications between the party's lawyers and the expert.

While the VLRC rejected a requirement that all written communications between experts and litigants or their representatives be disclosed, which is consistent with the NSWLRC recommendations, it has recommended that privilege should not apply to any communication or document arising in connection with the expert's engagement, where that expert is to give evidence in a court proceeding.

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Conclusion

The VLRC's recommendations in relation to experts will be of interest to both plaintiffs and defendants and would give the courts significant discretion as to the expert evidence led in a dispute. The State Government's response to the recommendations will be keenly anticipated as so many pieces of significant litigation involve expert evidence.

Footnotes
  1. New South Wales Law Form Commission, Expert Witnesses , Report No 109 (2005).
  2. Part 31, New South Wales Uniform Civil Procedure Rules 2005.

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