Application for leave for expert to depart from opinion
expressed in joint report – Rule 30(3) Planning and
Environment Court Rules 2010
Facts: This was an application by which the
Co-Respondent sought leave for its waste water disposal expert to
provide additional evidence which departed from opinions expressed
in earlier joint reports. Leave was required pursuant to R.30(3) of
the Planning and Environment Court Rules 2010.
A previous joint report had reached agreement about the
suitability of proposed effluent disposal arrangements. In a
further joint report the Co-Respondent's expert foreshadowed
that he wished to depart from opinions expressed in the earlier
joint report, and to raise concerns similar to those which he had
raised at the outset, but in respect of which he had been satisfied
at the time of the joint report. In order to analyse his concerns,
he undertook further modelling which, he said, showed that there
were difficulties with the proposal. When that matter had been
raised, there had been interruption to the trial, and a few days
where no evidence could be taken.
Decision: The Court held, in granting leave,
The general prohibition on an expert departing from a position
in a joint report, save by leave, served a number of purposes.
One of those purposes was to make sure that the experts treat
the joint report process with appropriate respect, and properly
prepare, and properly participate fully rather than simply
regarding it as a preliminary step which they can easily depart
from later on.
Another purpose is to guard against the prospect of experts
easily departing from opinions reached in a joint report should
they be subsequently prevailed upon by their clients or others to
A further objective is to ensure the preparation for trial can
proceed on the basis of some certainty as to what the expressed
views are, such that surprises are unlikely or at least are
The requirement to obtain leave also ensures that any departure
is accompanied by some explanation of the circumstances and the
reasons for the departure.
In this case there was no suggestion that the expert had been
prevailed upon by the lawyers. The explanation was somewhat thin.
However, the Court was inclined at this stage to accept that it was
genuine. If the Co-Respondent's expert was to give evidence, he
should be able to give evidence of what his current views are.
It was both within the jurisdiction of the Court, and
appropriate, for there to be an Order in relation to costs of this
In terms of the costs thrown away by the grant of leave, such
an Order should be made, but there was no purpose in making it now,
because the Court could not decide on the basis of it. The Court
would have been prepared to make an Order on the standard basis,
but the Appellant wished to push for indemnity costs, and the Court
was not minded to make that decision until and unless it heard the
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