Expert Witness & Expert Reports
An Expert Witness is a party to proceedings and who engages an expert witness must either give the expert witness a copy of this code of conduct, or be satisfied that the expert witness has seen the code of conduct and is familiar it.
An expert witness must comply with the code of conduct when preparing an affidavit for filing with the Court, or in the preparation of a proposed brief of evidence, or in giving any oral evidence in any proceeding in the Court.
An Expert Witness’ Duty to the Court
An expert witness has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise.
An expert witness is not, and must not behave as an advocate for the party who engages the witness and is legally required to declare any relationship with the parties calling them or any interest they may have in the outcome of the proceeding.
The Evidence of an Expert Witness
In any evidence given by an expert witness, that person must, in the body of the witness’s statement or affidavit (if the evidence is in writing) or orally (if the evidence is being given orally):
- Acknowledge that the expert witness has read this code of conduct and agrees to comply with it;
- State the witness’s qualifications as an expert;
- Describe the ambit of the evidence given and state either that the evidence is within the expert’s area of expertise, or that the witness is relying on some other (identified) evidence;
- Identify the data, information, facts, and assumptions considered in forming the witness’s opinions;
- State the reasons for the opinions expressed;
- State that the expert witness has not omitted to consider material facts known to the witness that might alter or detract from the opinions expressed;
- Specify any literature or other material used or relied upon in support of the opinions expressed;
- Describe any examinations, tests, or other investigations on which the expert witness has relied, and identify, and give details of, the qualifications of any person who carried them out; and if quoting from statutory instruments (including policy statements and plans), do so sparingly.
- A schedule of relevant quotations may be attached to the statement of evidence, or a folder produced containing relevant excerpts may be produced.
If an expert witness believes that his or her evidence, or any part of it, may be incomplete or inaccurate without some qualification, that qualification must be stated in the evidence.
If an expert witness believes that his or her opinions are not firm or concluded because of insufficient research or data, or for any other reason, that must be stated in the evidence.
If after the exchange of a brief of evidence has occurred, an expert witness changes any of his or her opinions, that must be communicated without delay to the party or parties wishing to call the witness.
Reports from an expert witness are intended to assist the Court in matters of which the witness has expertise. They must comply with Civil Procedure Rules.
The report must be the independent and unbiased product of the expert witness and fall within his areas of expertise, experience and knowledge.
The report must state the facts and assumptions that the report is based upon and must not omit known facts which may be relevant to the expert’s conclusions.
It must be impartial and not influenced by those instructing or paying the expert witness to give the evidence.
Expert witnesses may not accept payments contingent upon the nature of the evidence given or the outcome of the case.
A well drafted, unbiased expert witness report often helps the parties to reach agreement and settle a dispute without the need for a court or tribunal hearing.