Single Experts

The Duties and Responsibilities of an Expert Witness

The duties and responsibilities of an expert witness in Queensland court proceedings will depend upon when and how the expert came to be appointed.  The 2004 amendments to the Queensland Uniform Civil Procedure Rules 1999 (“UCPR”) have meant that there are various categories of experts:

• Where an expert has been appointed prior to 2 July 2004 the evidence of that expert is not subject to the new rules;1
• Experts appointed in minor claims in the Magistrates Court are excluded from the new rules entirely;2
• Experts appointed after 2 July 2004 in Magistrates Court proceedings (excluding minor claims), and in District Court proceedings, are subject to the general duties and obligations in UCPR Chapter 11, Part 5, Divisions 1 and 2,3  but are not subject to Division 3 (experts appointed jointly by the parties or by the court);4
• Experts appointed by the parties or by the court5 before any court proceedings are instituted can be appointed under the new regime in Part 5 Division 4;
• In Supreme Court proceedings experts are to be appointed pursuant to the new regime in Part 5 Division 3.6

Experts Appointed Outside the New Part 5 Regime

Experts appointed outside the regime in UCPR Chapter 11, Part 5 [ie. categories (a) and (b) above] are subject to the pre-existing law. Under that system, in the rare cases where an expert is appointed by the court, the expert is required to enquire into a specific issue and report to the court.7 In the vast majority of cases the expert is retained by a party to the litigation and is obliged to follow the instructions of that party and to report to that party. In Queensland, if the expert has produced a written report for a party, that party is obliged to disclose the expert’s report.8

In recent years many practitioners in Queensland, perhaps conscious of something of a backlash against partisan expert evidence,9 adopted a practice of asking their expert witnesses to read and follow the instructions in the Federal Court’s Practice Direction: Guidelines for Expert Witnesses10

Any expert proposed to be called in Federal Court proceedings11 must be given those guidelines.  The Federal Court guidelines specify that:

• An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.
• An expert witness is not an advocate for a party.
• An expert witness’s paramount duty is to the Court and not to the person retaining the expert.

Experts Appointed Within the Part 5 Regime

Experts retained under the new regime in Part 5 [ie. categories (c), (d) and (e) above] are subject to a duty similar to that specified in the Federal Court guidelines, namely:

• A witness giving evidence in a proceeding as an expert has a duty to assist the court.
• The duty overrides any obligation the witness may have to any party to the proceeding or to any person who is liable for the expert’s fee or expenses.12

Both the Federal Court guidelines and the UCPR Part 5 regime specify the particular requirements of the expert’s report.  The rules are similar and require detail of the expert’s qualifications, the facts relied on, the expert’s assumptions, the literature relied on, and the expert’s opinion and reasons for that opinion.

However, the mode of imposition of the expert’s duties and obligations in preparing the report differs from Court to Court.  The Federal Court regime merely requires the expert to be given a copy of the Federal Court Guidelines for Expert Witnesses.  The Supreme Court’s UCPR Part 5 regime expressly imposes the duties on the expert, and specifies the requirements of the report, and requires the expert to confirm, at the end of his report, that he understands his duty.

Ensuring the Expert is Independent

The Federal Court’s approach to ensuring that the expert is independent is to require the expert to be handed the Federal Court guidelines which explicitly state that the expert’s duty is to the Court and not to the party.

My experience is that experts are often relieved to have their duty explicitly stated and to be told that they must assist the Court by candidly stating their opinion ‘warts and all’.  Such a step often dissolves any doubts or confusion the expert might have entertained.

However, the Part 5 regime is far more pessimistic. First, the UCPR Chapter 11 Part 5 regime is more direct than its Federal Court counterpart.  Part 5 imposes on the expert a positive duty to assist the Court and states that the duty to assist the Court is to override any duty to a party. 

A matter of perhaps faint curiosity is how that duty might be enforced.  A party who ascertains that an expert is in breach of that duty might be hard-pressed to directly seek any remedies.  The duty is expressed to be owed to the Court.  And, if the court finds an expert in breach of the UCPR duty, there are likely to be few remedies open to it.13    Second, Part 5 requires that Supreme Court litigants either agree to appoint a joint expert or to make an application for a court-appointed expert.14

The intention of Part 5 seems to be to restrict litigants to those two choices (i.e. joint expert or court appointed expert) with the only other possibility being an expert appointed by the Court on its own initiative.15

The rules do not expressly exclude the possibility of the parties separately retaining their own experts.  Probably the Court retains the discretion to permit separately retained experts.16 However, the intention of Part 5 is certainly to require the parties to either agree on a joint expert or to apply for a court appointed expert.  The rules, deliberately, do not explicitly leave open to the parties a right to retain their own experts.

In summary, the rules establish a presumption in favour of the appointment of a single expert, either by agreement of the parties, or by order of the Court.17

The Court’s desire to have some control over the process of appointment of experts is also evident from Practice Direction No. 2 of 2005 which specifies that, as soon as it is apparent to a party that expert evidence on a substantial issue will be called at the trial or hearing, that party must file an application for directions.18

The issue of mild interest here is whether a system, which requires either one joint expert, or one court appointed expert, will succeed in producing an independent expert.  The NSW Law Reform Commission19  identified 3 types of bias in expert witnesses:

• Pre-Conceptions Bias.20   Experts, like many others in the community, including judges, will have assumptions, beliefs and values which may influence the expert’s opinions. The expert may have views on matters that are controversial within their profession.21  Sometimes, for example, the expert may feel inhibited by professional solidarity from taking a view adverse to a defendant who is a professional colleague.22
• Selection Bias:   Litigants naturally choose, as their expert witnesses, persons whose views they know or expect will support their case.23   The expert may well give careful and honest evidence, but has been selectively chosen.24
• Adversarial Bias:   An expert retained by one party may deliberately tailor evidence to support his or her client. Or, more likely, an expert may be guilty of unconscious partisanship, that is, be influenced by the situation to give evidence in a way what supports the client.25

How can the Court ensure that the expert is independent and that the expert evidence is unaffected by those types of bias?

One method is to ensure that the expert properly understands their role and the need for the expert to give a fair and independent opinion. The Federal Court guidelines adopt that approach.  Similarly with codes of conduct for expert witnesses.26

The Hon. Justice Garry Downes,28 President of the Australian Administrative Appeals Tribunal, takes the view that, the experience of the Court is that whilst experts generally expose the matters which support the hypothesis which most favours the party calling them, with very few exceptions, expert witnesses do not deliberately mould their evidence to suit the case of the party calling them.  His Honour sees great value in the traditional approach of exposing different expert points of view for evaluation by the Judge.27

The Hon. Justice Geoffrey Davies  takes a different view. He takes the view that polarisation and adversarial bias are so endemic as to require a more radical solution.29    Hence the new Queensland rules in Chapter 11 Part 5 of the UCPR which are unique in Australia.

It is worth reviewing the impact of the new rules in UCPR Chapter 11 Part 5.

Reviewing the Impact of the New UCPR Regime

As has been mentioned, Chapter 11 Part 5 requires that Supreme Court litigants either agree to appoint a joint expert or make an application for a court-appointed expert.  As mentioned there is still a possibility of the parties appointing separate experts, but the rules presume the appointment of a single expert.

Does the UCPR’s presumption in favour of the appointment of a single expert eradicate or reduce the three different types of bias?

Pre-Conceptions Bias

Undoubtedly, having a single expert on an issue will not remove ‘pre-conceptions bias’.  It is probable that a regime which favours the appointment of a single expert may accentuate the problem of pre-conceptions bias because of the risk that the Court will hear the perhaps eccentric views of one expert without having the opportunity to have those views balanced.30   The use of one expert does not guarantee that that expert’s views will be mainstream or moderate.31

The result of a system which promotes single experts may be to increase rather than decrease the importance of professional experts.  An expert who is the only expert on an issue is likely to be accepted because there is no contrary view. So, a system which promotes the use of single experts may accentuate the problem of pre-conceptions bias with the consequent peril to a just result in the litigation.

Selection Bias

The appointment of a single expert, whether chosen by the parties or appointed by the Court, does not necessarily solve the problem of ‘selection bias’.  It is true that the parties cannot unilaterally ‘shop around’ for an expert whose views suit them. However, there are many hurdles before one could be confident that a suitable and independent joint expert has been appointed.

The first hurdle is that the parties have to agree on a joint expert. It is possible that the parties, and their lawyers, will have similar knowledge of an expert’s industry or profession and will be able to agree on an appropriately qualified joint expert.  However, if the parties or their lawyers have unequal knowledge about the relevant discipline, or perhaps even unequal diligence, the parties may agree to a joint expert who has firm views one way on a genuine controversy within the expert’s discipline. 

A party may ultimately regret agreeing to an expert who has decidedly adverse views one way on matters which are the subject of genuine controversy. 

Now to the second hurdle. If the parties cannot agree on an expert, how does the Court choose between potential experts before they give any evidence?32

Under the old system, the Court chose between the evidence of different experts based on their reports and their evidence. Under the new system, if the parties cannot agree on a single joint expert, the Court must decide which expert is to be retained. UCPR 429I(2) and 429J(2) require that each party nominate at least three experts. How does the Court choose between, possibly, as many as 6 different experts?

In those cases where the parties cannot agree on a single expert, the Court may be faced with the crushing burden of choosing between different single experts proposed by the litigants and having little more to go on that their CVs.  It is obviously unwise for the court to choose the most senior expert,33  or the expert with the most impressive CV,34  or even to make a random choice.  There is no easy way to resolve this conflict.  In some cases, faced with this dilemma, the court may opt to let each party choose their own expert.

The third hurdle is that sometimes identifying the appropriate expert is difficult.

Industries and professions are different. In some fields there are many competent and experienced experts to choose from.  In others, there are very few.  In some specialised fields there may be only two, perhaps only one, genuine expert in the field who can speak with authority.  Thus, the requirements in UCPR 429I(2) and 429J(2) that the applicant for a court-appointed expert must name at least three experts  maybe a little unrealistic.

Commercial litigation lawyers will be familiar with the difficulties in trying to find an appropriate expert in a particular field.  It often requires considerable research and some dedication. Finding the appropriate area of expertise can often involve dialogue with a number of experts in related disciplines. When he or she is identified, the expert in a particular field may be interstate, or overseas, and may not be willing to give evidence.

In my view, it is unreasonable to expect that the Courts should or have the resources to undertake the burden of identifying, retaining and briefing appropriate experts. The writer has been unable to find any instances of the Supreme Court appointing a single expert on its own initiative35  and no cases can be found where a single expert has been appointed over the objections of a party. 

So, if the parties cannot agree, and the court does not itself undertake the task, choosing an expert from competing candidates proposed by the various litigants may be as onerous as choosing between competing expert testimony.

Instances of the Queensland Supreme Court appointing an agreed single expert are rare.  It is difficult to find proper data on this.  There are no reported decisions which address the issue. 

However, in other jurisdictions the anecdotal evidence is that the use of single joint experts seems to be working well in that judges, lawyers and parties have displayed a willingness to use single experts, especially in matters that do not involve substantial amounts and where the issues are relatively uncontroversial.36

One suspects that, once some initial resistance to the concept is overcome, jointly appointed experts will become relatively common, but not a universal solution.

Adversarial Bias

The appointment of a single expert will, undoubtedly, solve the problem of adversarial bias.  An expert appointed by the parties jointly, or appointed by the Court, is unlikely to deliberately, or even unintentionally, tailor his or her evidence to suit one or other party. Ensuring that the expert has the correct independent approach to his or her expert evidence is a significant advantage. However, at what price has the adversarial bias been eradicated?

No doubt the use of a single expert witness makes the judge’s task easier. Viewed from that standpoint, the preference for a single expert is likely to be a resounding success. In a recent Land and Resources Tribunal case, Re Brisbane Petroleum NL & Silverback Properties Pty Ltd,37  for example, the Tribunal appointed a single valuer, who assessed the appropriate compensation at $783.46 per year. The Tribunal determined the appropriate compensation at $783.46 per year.

If the object of our judicial system were efficiency; that result was efficient.  The Land and Resources Tribunal only had to choose between an annual payment or a lump sum.

But the purpose of the court rules is more than to merely to achieve an efficient and expeditious resolution.38 An important goal is to achieve a just resolution.   No doubt the efficient decisions reached by relying on a single expert will often also be just decisions.  But I share the discomfort with a single expert system expressed by Justice Downes:

His Honour continued:

One of the few Queensland Supreme Court cases where a single expert was appointed is NFO v PFA.41 In that case Mullins J made a consent order appointing a single expert valuer under UCPR 429I. Apparently neither party was satisfied with the single expert’s valuation because both counsel cross-examined that expert. One party was given the leave of the court to call further evidence from another expert.

Ultimately, in deciding the case,  Her Honour generally preferred the evidence of the ‘single’ expert but allowance was made for other factors and to some extent the value determined by the ‘single’ expert was qualified.  It is not clear from the report but presumably those qualifications were made by reason of the matters raised by the further valuation evidence.

A comparison of Re Brisbane Petroleum & Silverback Properties42  and NFO v PFA43  is interesting.  Both were valuation cases where there were orders requiring a single expert.  In the Tribunal case, where no other evidence was called, the single expert valuer’s evidence was accepted exactly and without qualification. In the Supreme Court case further evidence was allowed and the acceptance of the evidence of the ‘single’ expert was a qualified acceptance.

The other moderately interesting point about NFO v PFA is that it raised the issue of when parties ought to be permitted to tender additional expert evidence despite an agreed or court appointed single expert.  If a party has separately retained his own expert and that expert entertains doubts about the single expert’s opinion, should that party be able to tender that additional evidence?

The burden of deciding whether to permit further evidence will fall on the trial judge.  If such an application were made the competing principles are likely to be these:

• the rules presume that expert evidence will only be given by a single expert and so the Court ought not lightly allow the parties to, in effect, return to the old system with its disadvantage of  competing partisan evidence;
• consistently with the principles of natural justice, a party who challenges the evidence of a single expert should not be lightly refused the opportunity to adduce evidence which contradicts the single expert.

Understanding the Expert Report

The cost savings in having a single expert may well be illusory.  To understand and test the views of the ‘single’ expert, litigants may retain their own experts. That may lead to the  engagement of 3 experts rather than a single expert.

It is true that in some cases the task of even understanding expert evidence is fraught and time-consuming. But having one expert does not solve that problem.  It does mean that the conclusions of the single expert will not be tested. They may be beyond challenge; they may not.

Different Schools of Thought

Where, in a particular area of expertise, there are different schools of thought, or if the expert evidence will be at the cutting edge of research in a field, the use of a single expert may be a distinct disadvantage.

The NSW Law Reform Commission addressed that issue:

“7.29  It is also sometimes objected that the use of joint expert witnesses can lead to injustice where the expert issues are subject to legitimate differences of opinion, or schools of thought, among professionals in the field. This issue pertains to cases that may involve a dispute as to the method chosen, from a number of equally accepted methods, to accomplish a particular task (for example the valuation of a business). Alternatively (but more rarely) there may be cases where the issue in question is itself novel and the subject of intense debate within that particular field of expertise. In such cases, it is argued, the use of a joint expert witness would select out other legitimate views that the court should hear if it is to reach a just determination.

There are, therefore, dangers in retaining a single expert which ought to be recognised.  In some cases, a single expert will be appropriate.  In other cases, “a better result will flow from a diversity of expert opinion”.45

It follows that, in my opinion, the Queensland UCPR’s presumption in favour of a single expert is a system which promotes efficiency in decision-making but does so at some peril to the goal of achieving a just result.

An Advantage of Single Experts

Before leaving the topic of adversarial bias it is important to mention that there is one distinct advantage in the parties or the Court engaging a single expert.

That distinct advantage is that some illusory disputes are avoided.  Let me explain.

Where two or more litigants retain experts one often finds that their reports are not directly contradictory. It frequently occurs that the expert reports pass each other like ships in the night. The result is that when they meet pursuant to a court order directing that the experts confer,46  or even in the more formal setting of a ‘hot tub’,47  there are often many acres of common ground.

The cause of differing expert opinions can often be traced to:

• experts being briefed with different facts upon which their opinion is based;
• experts being asked different questions (and so leading to different answers).

Typically, an expert accountant asked to give an opinion on a loss by a litigant will be provided with one set of documents, figures and projections and will be asked to assess the loss on a specific basis.  One can almost guarantee that the expert accountant retained by the other litigant will not be given the same documents, figures and projections and will not be asked the same question. So, it is not surprising that the two expert accountants, sent different briefs and asked different questions, will arrive at divergent opinions.

A system which promotes the use of single experts will avoid those illusory disputes.

Of course, even if there are two or more experts in a particular discipline, steps can be taken to avoid illusory disputes.  Having the parties, well in advance of trial, agree on a brief for the expert or experts, and on  the questions to be put to an expert or experts, will often avoid illusory disputes which arise because their opinions are based on a different factual context and because they are asked different questions.

A Better System

So the UCPR Part 5 regime favours the appointment of a single expert.  Far better, in my (perhaps inexpert) opinion, would be a system which did not favour a single expert but instead required the parties and the Court, at an early stage in the litigation, to consider whether the proceedings are an appropriate case for a single expert, or a number of experts, and the terms and content of their brief, and the questions for the expert.  That, no doubt, is the object of and merit in Supreme Court Practice Direction No. 2 of 2005.48

In deciding whether to retain a single expert, and as a part of case management, the Court and the parties need to consider these factors:

• What are the issues which call for expert opinion?
• In particular,
  • Is the issue proposed for expert evidence a matter of measurement or assessment which can either be agreed by the parties or be measured or assessed by an agreed single expert?
  • Does the issue involve two (or more) schools of thought and is that expert evidence better presented by a single expert or two (or more) experts?
  • Does the issue for expert evidence involve a novel area of expertise or is the expert likely to be giving evidence at the ‘cutting edge’ of research?
• Is there a suitable  expert in the particular discipline?  For example, is the issue one which routinely falls within the expertise of a number of experts in a discipline? Or, is there a need to seek a particular, highly qualified or authoritative expert?
• Is the question for the expert (or experts) agreed? Or can it be agreed?
• Are the parties agreed on the ‘brief’ to be sent to the expert? Can they agree?
• Are there prospects of the parties agreeing on those matters, or is the burden of attempting to agree those matters likely to outweigh the cost of the parties retaining their own experts?
• What are the likely costs and delays of the alternatives?

So, as is often the case, the better solution is not to adopt a single solution but to arm the court with different weapons for different situations. The use of a single expert is one weapon but it needs to be handled with some care.

Paul Freeburn SC  

Comment on this article in the Hearsay Forum

Endnotes

1. UCPR 996.
2. UCPR 424(2).
3. UCPR 423 and 424.
4. UCPR 429E.
5. Note that, in advance of any proceedings, the appointment of the expert can occur by the     disputants jointly or by the Supreme Court on application:  UCPR 429Q, 429R and 429S.
6. As will be discussed later, there is almost certainly a further category of experts who have been appointed by the parties after 2 July 2004 but are appointed outside the regime in Part 5, Divisions 3 and 4.
7. See the former UCPR 425.
8. The UCPR provides that an expert report is not privileged from disclosure:  UCPR 212(2);  Interchase Corp Ltd (In Liq) v Grosvenor Hill (Qld) Pty Ltd (No. 1) [1999] 1 Qd R 141.  The obligation to disclose the report is specified in UCPR 429.  See the discussion in section G below.
9. See, for example, the court’s outrage at the disgraceful conduct of the expert in “The Ikanan Reefer” [1993] 20 FSR 563; The NSW Law Reform Commission, in its Report 109: Expert Witnesses (June 2005) records concern about the use of partisan expert evidence from the mid-19th century: see pages 18 — 22.
10. Federal Court Practice Direction — 15 September 1998.
11. As has been mentioned, the guidelines were frequently used in non-Federal Court proceedings.  Other common law jurisdictions have adopted similar guidelines:  see, for example, Uniform Civil Procedure Rules 2005 (NSW), Schedule 7 (which superseded a similar code in Pt 36 rule 13C and schedule K).
12. UCPR 426.
13. This issue is beyond the scope of this paper.  Plainly the court has power to control its own processes.  That may or may not include a capacity to punish for breach of duties imposed by UCPR. One possibility would be for the court to make an order under UCPR Ch 20.
14. See UCPR 429G.
15. UCPR 429G(3), 429J.
16. See UCPR 423(d) which contemplates multiple experts on one issue. The Court’s power to give directions would also, it seems, contemplate a power to direct separate experts.
17. NSW Law Reform Commission Report 109: Expert Witnesses (June 2005) at page 52.
18. Paragraph 5 of Supreme Court Practice Direction No. 2 of 2005. That paragraph is specified as not applying to proceedings to which the Motor Accident Insurance Act 1994, or Workcover legislation applies.
19. Report 109: Expert Witnesses (June 2005) at page 70 and following.
20. This is not the expression used by the NSW Law Reform Commission but it is a useful compendium. The categories used by the Commission are also slightly different.
21. Report 109 (supra) at p 70.
22. Report 109 at p71 (Luckily this is a ‘bias’ which has rarely inhibited lawyers).
23. A personal injuries plaintiff is unlikely to choose an expert medical practitioner from the “usual panel of doctors who think you can do a full week’s work without any arms or legs”: Report 109 at  p 21; Vakauta v Kelly (1989) 167 CLR 568 (Toohey J quoting the trial judge).
24. See Report 109 at p 74.  Note also the frequent practice of lawyers to obtain an expert’s views orally and, only if favourable, to ask the expert to commit his views to a written report.
25. As to the unconscious incentive to tailor reports: see G L Davies , “The Reality of Civil Justice Report” paper,  20th AIJA Annual Conference (Brisbane, 12-14 July 2002); Report 109 at p 73.
26. See, for example, Schedule 7 to the NSW UCPR.
27. Downes, “Expert Evidence: The Value of Single or Court-Appointed Experts”, Aust. Institute of Judicial Administration Expert Evidence Seminar, Melb. 11 November 2005, at page 3.
28. Justice Davies was a member of the Queensland Court of Appeal from 1991 to 2005.
29. Davies, ‘Court Appointed Experts’  QUT Law & Justice Journal (2005) vol. 5 No. 1.
30. An example of the ‘balancing’ of one expert’s opinion is provided by NFO v PFA [2005] QSC 176 — a case which is discussed below.
31. cf Report 109 at pp 23-4.
32. Choosing experts by reference to their CVs is hardly more likely to produce a just result.
33. Seniority is not necessarily a useful way of resolving differing viewpoints.
34. Some of the most impressive experts possess quite modest CVs.
35. UCPR 429G(3); 429J; note however that the Land & Resources Tribunal seems to appoint experts     on its own initiative: see Re Brisbane Petroleum NL & Silverback Properties Pty Ltd [2004] QLRT 145.
36. Report 109 at pp 106-7. Single experts are frequently used in specialist jurisdictions such as the Land and Resources Tribunal of Queensland (e.g. Re Brisbane Petroleum NL & Silverback Properties Pty Ltd [2004] QLRT 145), and the Consumer Tribunal — Building List.
37. [2004] QLRT 145.
38. See UCPR 5.
39. Downes (supra) at p 4.
40. Ibid, at 6-7.
41. [2005] QSC 176.
42. (supra), [2004] QLRT 145.
43. (supra), [2005] QSC 176.
44. Report 109 at p 115.
45. Downes (supra) at 5.
46. See UCPR 429B.
47. The ‘hot tub’ is a concept whereby all of the experts on the same question give their evidence at the same time, and can ask each other questions.  Report 109 (supra) at 32-33 comments that the procedure is used in the Federal Court and in the NSW Land and Environment Court.  For a discussion of the process see Report 109 at pages 97-99.  A case where the process was used in Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2004] NSWLEC 315.
48. See above, particularly page 4 and footnote 18.