The Law Reform Commission recently published a consultation paper on Expert Evidence. The paper is part of the Commission's Third Programme of Law Reform 2008-2014.
The outcome of civil and criminal trials today frequently turns on technical specialist issues. Often the court does not have the specialist knowledge to make an informed and reasoned judgment without some assistance. This is where the role of the expert witness/expert report arises. It is becoming an increasing feature of the courts today.
The purpose of the consultation paper is to consider the parameters of the role of expert witness' and examine whether there are appropriate controls governing the exercise of their duties. Some of the key recommendations to emerge from the paper include:
- The Commission proposes that the term "expert" be defined. Currently there is no recognised definition of an expert i.e. whether someone is an expert on the basis of experience - only based knowledge or whether it should be someone who possesses certain minimum training, study and professional qualification.
- Guidance for experts is very important. The paper recommends that there should be a guidance code for experts which clearly set out the duties owed by expert witnesses. The code may be statutory or best practice based. The paper reiterates that the primary duty of the expert is to the court. This duty supersedes all other duties and is reiterated because of a growing concern that the perceived impartiality of the expert witness is being eroded by fee arrangements with those paying the expert.
- There should be guidelines containing a list of factors which can be used to assist the court assess the reliability of the expert evidence.
- There is no necessity for a prohibition on experts giving evidence where they have a pre – existing relationship with one of the parties.
- The possible extension of the requirement to exchange expert reports to all civil claims.
The paper contains interesting proposals for reform in this area. Safeguards to protect the independence of the expert would be a welcome development as in some instances there is the perception that expert evidence is not always impartial and unbiased. Clarity concerning the identification of experts would be of assistance as this may obviate grievances from parties to disputes concerning the status/recognition of the other sides experts. This is turn may lead to an increased willingness between the parties to have their experts agree issues in advance which could result in cost savings for clients and the avoidance of protracted litigation.