A government-appointed committee has decided claims of expert witness bias are exaggerated and measures to rein in their over-use are now largely in place. Shaun Drummond reports
Two years after the NSW Attorney-General Bob Debus responded to media reports of widespread bias among expert witnesses by asking the state’s Law Reform Commission (LRC) to examine whether tougher rules should be imposed, a further year-long inquiry has concluded the risks of doing so would outweigh the benefits.
However, the Attorney-General’s Working Party on Civil Procedure has agreed that joint expert witnesses, or “parties’ expert witness”, as they are to be called, should be allowed and ‘no win, no fee’ agreements between experts and the parties will have to be disclosed to the court.
The changes were agreed to by the Uniform Civil Procedure Committee, which has the ultimate say on amendments to NSW’s Uniform Civil Procedure Rules, and these were amended late last year.
Despite indications from the Attorney-General that he was unhappy the LRC had not chosen to recommend stronger measures to punish experts for unethical or inappropriate behaviour in court, in several areas the Working Party decided even less action than proposed by the Commission was necessary.
When the LRC’s report was referred to the Working Party in December 2005, a spokesperson told Lawyers Weekly, “we were particularly interested to see what the [LRC] report was going to say about sanctions, and we thought the report could have gone a little bit further and that’s why we are now seeking [further] information on that” (see Lawyers Weekly issue 269, December 2 2005).
At the time, at least one high-profile court case — Universal Music Australia Pty Ltd v Sharman License Holdings Ltd — had seen evidence emerge that appeared to show expert witnesses changing views to suit the case of the lawyers who had hired them.
In his report, however, the chair of the Working Party, NSW Supreme Court Justice John Hamilton, says the rarity of unethical or inappropriate behaviour by experts did not warrant stronger measures to discipline them.
Even the LRC’s recommendation to merely inform experts of the existing sanctions available was seen as unnecessary. In addition, the Working Party found the LRC had incorrectly assumed that costs orders could be made against experts for inappropriate conduct.
“The report proceeds on the misapprehension that there is already power in the courts to order costs against an expert witness,” Justice Hamilton said. In fact, he said it was apparent on a reading of the Civil Procedure Act and the Uniform Civil Procedure Rules that “there is no such power”.
He said the Working Party debated whether this sanction should be added to the Civil Procedure Rules, as well as whether experts should be made aware of the sanctions available. It came to the conclusion that in the Party’s “centuries” of combined experience in the courts, the need to use sanctions against experts was so rare that the benefits of imposing these proposals would outweigh the risks that experts would be deterred from giving evidence.
“None of the members [of the Working Party], to his or her recollection, had in fact been involved in any case where an order for costs against an expert witness appeared to be called for,” Justice Hamilton said.
“Balancing the rarity of occasions for the imposition of the sanction against the risk of its availability causing experts to withdraw themselves from giving reports”, he said the Working Party felt there was no need for new sanctions or to “wave” the sanctions “under the nose of prospective witnesses”.
The Working Party agreed with the LRC that so-called “no win, no fee” arrangements between experts and the lawyers who hire them should be disclosed to the court, but said an automatic disclosure of all fee arrangements could, once again, lead to a “diminution in the pool of persons available as expert witnesses”.
Justice Hamilton said there was a perception in England that the pool of available medical witnesses had recently shrunk after a doctor was struck off the court register of experts, but later reinstated, for giving “erroneous evidence” in a criminal case in the Court of Appeal.
The Working Party also decided against implementing the LRC proposal that no expert evidence should be given either at trial or in interlocutory proceedings without the permission of the court.
Justice Hamilton said the LRC’s view is based on the recommendations of the Woolf Report in England, which conducted a similar inquiry into expert witnesses in the mid-1990s.
“As I understand it, the rule was cast in this form by Lord Woolf as a shock tactic to confront the situation he saw in England in the 1990s of partiality and proliferation of expert witnesses in court proceedings,” Justice Hamilton said.
“One thing to be borne in mind … is the difference in context between England in 1995 and in NSW in 2006.” In the intervening period, he said the state had strengthened case management powers “enormously” and he felt the “shock of the new is not as necessary in NSW in 2006 as it was in England in 1995”.
As well as the Civil Procedure Act and the Uniform Civil Procedure Rules, he said “we have introduced rules that compel the exchange of expert reports and the use of the reports as evidence in chief; that prescribe a code of conduct for expert witnesses; that provide for compulsory conferences between experts; and the giving of evidence concurrently by more than one expert.”
Justice Hamilton said one of the most significant changes agreed to is to implement the LRC’s recommendation allowing parties to agree to appoint their own single expert. However, the ability of the court itself to appoint an expert will remain, and he said where the court had appointed a single expert already on a particular issue, contrary to the LRC’s view, the present rule that no further evidence could then be called would remain.