The Expert Witness Code of Conduct contained in Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW) has been omitted and replaced by an amended version. [i] The amending rule was published on Friday 9 December 2016 and took effect from that date. [ii]
The object of the amendment is to “update the expert witness code of conduct … so that it conforms with harmonised rules approved by the Council of Chief Justices”. [iii]
The majority of the differences between the repealed and current code appear to reflect semantic rather than substantive issues; however, there are some differences worth noting.
Update your precedents
The key issue for most solicitors and insurers is that they need to update their expert witness precedents immediately so that their experts are given the current version of the code, and include in their report “an acknowledgement that the expert has read this code and agrees to be bound by it”. [iv]
Supplementary report following change of opinion
There is a new rule that states:
“Where an expert witness has provided to a party (or that party’s legal representative) a report for use in court, and the expert thereafter changes his or her opinion on a material matter, the expert must forthwith provide to the party (or that party’s legal representative) a supplementary report which must state, specify or provide the information referred to” in the code requirements relating to the contents of an expert report. [v]
Some other differences
The expert report now requires an address for the expert, presumably for service of a subpoena, and a declaration that the expert has made all inquiries that they believe are desirable and appropriate, save for any matters already expressly identified in the report, and that no matters of significance that the expert regards as relevant have to their knowledge been withheld from the court. [vi]
The duty to work co-operatively with other expert witnesses now includes a duty to “abide in a timely way by any direction of the court” [vii], presumably reflecting the serious ongoing issue faced by solicitors seeking to obtain a finalised joint report from experts sent to a joint conference (conclave) without a facilitator.
The form of words used in the code has been substantially changed. While these changes may solely be intended to give effect to the harmonisation of the language of the code across jurisdictions, they may yet raise interesting issues about the content requirements of an expert report in NSW in some cases.
There are no transitional provisions within the amending rule itself; however, compliance with the former code as in force at the date of a report will presumably be considered adequate compliance with the rules. It will be interesting to see whether a contrary argument is made.
Current version of code
The current (amended) version of the Expert Witness Code of Conduct can be downloaded from the NSW government’s legislation in force website. [viii]
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[i] Uniform Civil Procedure (Amendment No 82) Rule 2016, published 9 December 2016 http://www.legislation.nsw.gov.au/regulations/2016-754.pdf
[ii] Clause 2
[iii] Explanatory note
[iv] Clause 3(b) (current)
[v] Clause 4 (current)
[vi] Clause 3(a),(h),(i) (current)
[vii] Clause 5(c) (current)