Australia: Expert evidence - failure to comply with duties to the court could be costly

The recent decision of the Victorian Supreme Court in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (Hudspeth) is a timely reminder of the paramount duty that experts, solicitors and barristers owe to the Court when obtaining, tendering and relying on expert reports—and the consequences of breaching this duty.

The expert reports

During the trial it became apparent that three different versions of the plaintiff's expert report were floating around:

  • First Report: A report dated 9 April 2010, which Mark Dohrmann (the expert) had signed and sent to the plaintiff's solicitors, Clark, Toop & Taylor Lawyers, before the trial. The First Report was served on the defendant.
  • Second Report: A report dated 9 April 2010, which was an amended version of the First Report. The Second Report included changes made by the expert's assistant at the request of the plaintiff's solicitors, without the expert's knowledge or approval of those changes or of the existence of the Second Report.
  • Third Report: A report dated 12 November 2010, which was a further amended version of the First Report. The Third Report included changes made by the expert's assistant at the request of the plaintiff's barrister, John Richards SC, when it became apparent that the assumed facts in the First Report were inconsistent with the evidence given by the plaintiff during the trial. The expert signed the Third Report and provided it to the plaintiff's barrister, but it was not provided to the plaintiff's solicitors, nor was it served.

The inquiry

When giving evidence in chief, the expert was asked to read the assumed facts contained in his report. Unaware of the Second Report, he read from the First Report, while the plaintiff's barrister referred to the Second Report. Due to the inconsistencies between the two versions, it wasn't long before it was discovered that each was referring to a different report.

During cross-examination, the expert was questioned on the inconsistencies between the two reports. In his response, the expert disclosed that there was a Third Report, which had not been served on the other parties. The expert tried to explain this on the basis that the Third Report was a draft report he had prepared to assist with trial preparation, but the Court didn't accept this explanation.

Dixon J started an inquiry into the conduct of the plaintiff's solicitors, barrister and expert pursuant to s 29(2)(b) of the Civil Procedure Act (Vic) (the Act), to establish whether any of them had contravened their obligations to the Court.

The findings

Dixon J made the following findings about the conduct of the plaintiff's solicitors, barrister and expert as it related to the Third Report:

  • The plaintiff's barrister breached his paramount duty to the Court, in particular the overarching obligation to disclose the existence of documents (s 26 of the Act) and not to engage in misleading or deceptive conduct in a civil proceeding (s 21 of the Act), as he:
    • led the Court into the error of assuming that the expert had not prepared and adopted a supplementary report
    • misled the court in his submissions that the Second Report was relevant and admissible and the assumed facts would ultimately be established by evidence in chief from the expert
    • led evidence from the expert as to the assumed facts, which arose out of the Third Report, when it had not been served nor had he sought leave from the Court, and
    • went beyond proper conduct in dealing with an expert witness when he dictated changes to the expert's assistant, which effectively directed the expert away from observing the Expert Code of Conduct.
  • The plaintiff's expert:
    • breached his overarching obligation not to engage in misleading or deceptive conduct by failing to disclose the Third Report (in circumstances where it was materially different from his previous versions) and therefore leading the Court to the wrong assumption that it had not been prepared or adopted, and
    • failed to adhere to the Expert Code of Conduct when giving his evidence in chief by not mentioning the existence of the Third Report.
  • The plaintiff's solicitors breached the overarching obligation to disclose the existence of the Third Report under s 26 of the Act.

In his subsequent judgment handed down on 16 December 2014, Dixon J ordered:

  • the expert to indemnify each of the plaintiff's solicitors and barrister for 13.333% respectively, for their liability to pay the costs arising out of the successful appeal lodged by the plaintiff after her initial action was dismissed, and
  • the plaintiff's expert, solicitors and barrister each pay one-ninth of the defendant's costs, including reserved costs, of and incidental to the inquiry.

Lessons learned

Two important lessons can be taken from Hudspeth.

First, the role of a legal practitioner is to transparently instruct an expert, not to write or amend his report. It's then up to the expert to determine how a report should be amended, if at all, following a variation in instruction.

Second, where an expert has provided a supplementary report to a party, it must be served on all of the other parties as soon as possible. Failure to do so will prevent the parties from relying on the earlier and supplementary reports at trial and will be a breach of the overarching obligations. This breach entitles the court to make a number of orders under s 29 of the Act, including undertaking a costly inquiry and ordering that the perpetrator compensate a wronged party and/or pay their costs and expenses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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