Part 2: Conference of Experts and Joint Reports - Conquering the Conclave!
New Expert Evidence Guidelines – Our Four Part Series
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January 29, 2018
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Series: Intro | Part 1 | Part 3 | Part 4
Hired gun”, “inappropriate communications”, “contamination” and "hot tubs" are just some of the terms you'll find in the Federal Court of Australia's (FCA) greatly expanded expert evidence practice note (GPN-EXPT) released in late 2016.
So what do these changes mean for you? In a series of four bite-sized parts, we explore how you can get the best out of GPN-EXPT. In Part 1, we looked at the guidelines relating to the instruction of expert witnesses. This time in Part 2, we delve into the guidelines concerning the conference of experts and joint reports.
Guideline 1
The Court may appoint a registrar of the Court to act as a facilitator of the conference of experts. s7.2 of GPN-EXPT
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What This Means for You
A registrar or facilitator can be useful where there are multiple experts with different areas of expertise (e.g. accountants, engineers and quantity surveyors), particularly if the facilitator has experience across all the disciplines. However, involving a third party can also reduce the efficiency of the joint report process.
Guideline 2
The parties and their lawyers must not involve themselves in the conference of experts process. The experts should raise any queries in accordance with a protocol agreed between the lawyers prior to the conference of experts taking place. s7.6 of GPN-EXPT
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What This Means for You
There are often questions of process and of instructions that arise during the conference of experts process. Agreeing a protocol for communication with instructing solicitors would be helpful to the experts.
Guideline 3
The Court may order that the conference of experts occur in a variety of circumstances. One example given is that the parties exchange draft expert reports before the experts have reached a final opinion, and that a conference report be prepared for the use of the experts in finalising their reports. s7.5(b) of GPN-EXPT
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What This Means for You
In our view, an exchange of draft expert reports would be a significant departure from current practice. In over 20 joint expert conclaves in the last few years, we have never been ordered or instructed to exchange a draft report. We have, however, seen this approach taken in construction-related disputes in Hong Kong. If this process were to be adopted, it would need to be made clear which parts of the report were subject to change and in which circumstances. It may be useful for experts on the same side, particularly in cases where one expert is relying on the opinion of another (such as between accountants, economists and/or quantity surveyors).We would be interested to know if anyone else has experience with the exchange of draft reports, particularly between opposing parties. If you have seen this operate effectively, let us know!
Read more of our commentary on the FCA’s new expert evidence guidelines:
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Published
January 29, 2018
Key Contacts
Senior Managing Director, Head of Australia Forensic & Litigation Consulting