Summary of Supreme Court Rule 160 – Expert Reports
(Applies only to actions commenced on or after 4 September 2006)
Time Limit for Obtaining Expert Reports
A party must obtain all of the expert reports it requires at trial no later than 60 days following closure of the settlement conference (or in the absence of a settlement conference, the close of pleadings).
Service of Expert Reports
A party must serve upon every other party a copy of each expert report relevant to the action (whether the party intends to rely on it at trial or not). Disclosure of reports from “shadow experts” (see Rule 161) is exempted.
Duties of an Expert
An expert report must state the expert’s qualifications; set out the facts and factual assumptions upon which the report is based; identify documentary materials used; distinguish objectively verifiable fact from opinion; and comply with requirements imposed by Practice Direction 5.4.
Practice Direction 5.4 sets out in some detail the duties of expert witnesses. The Practice Direction emphasises that the expert witness has an overriding duty to assist the Court and is not an advocate for a particular party. To make this perfectly clear, the Practice Direction states that “an expert witness’s paramount duty is to the Court and not to the person retaining the expert”.
Reporting Requirements
Practice Direction 5.4 provides detailed requirements in relation to form the expert report. These requirements can be summarised as follows:
- the report must provide details and qualifications of any person carrying out a test or experiment relied upon by the expert;
- any photographs, plans, calculations or other documents referred to in the expert’s report must be provided to the opposite party at the time of delivery of the report;
- the expert’s opinions should be set out separately from factual findings or assumptions and the expert should give reasons for each opinion;
- if the expert’s opinion is not fully researched because the expert considers that insufficient data is available, or for any other reason, this must be stated;
- the expert should make it clear when a particular question falls outside his or her area of expertise;
- at the commencement of the report the expert must acknowledge that he or she had been provided with a copy of Rule 160 and Practice Direction 5.4, has read it and understood it, and
- at the end of the report the expert must make a declaration that the expert has made all inquiries which are desirable and appropriate and no matters of significance have been withheld from the Court.
Employees as Experts
Rule 160 and Practice Direction 5.4 are also applied to any person who is called as an expert in an action even if that person is employed by a party to the action. For example, where the defendant is an engineering firm and an engineer in its employ provides expert evidence as opposed to evidence of a factual nature only.
Disclosure of all Communications with an Expert
Rule 160(5) provides that a party seeking to rely upon expert evidence at trial must, at the request of another party, provide it with a copy of all the documentary material on which the expert has relied; details of any fee for the preparation of the report; and details of any communications with the party, its representatives or any other experts. This enables parties to obtain from another party, their letters of instructions to experts, file notes, discussions with experts, invoices or fee agreements, etc.
Penalties for Failure to Comply
Failure to comply with the Rules or the Practice Direction in respect of an expert’s report can lead to cost penalties against a party (or his or her lawyer personally) or the exclusion of evidence at trial.
Commentary
As will be apparent from the above discussion, Rule 160 and Practice Direction 5.4 have been designed to achieve “transparency” in the instruction of experts; impartiality in the formation of expert opinions; and consistency in the preparation of expert reports. They make the careful instruction of experts more important that ever.
