 |  |
|
 |
 |
 |
 |
|  | |  | |
Expert evidence is presently governed by section 58 of the Evidence Ordinance which
lays down as conditions of admissibility the requirement that the witness and the
subject-matter of the evidence qualify for expert status, and that the evidence is
relevant to the issues in dispute. By O 38 r 4, the court has power to limit the number
of experts to be called and, by O 38 r 36, expert evidence can only be called with the
leave of the court if pre-trial disclosure of the substance of his evidence, usually by
exchange of expert reports, has been made.
In the Working Party's view, it is unnecessary to introduce a general discretionary
power to exclude expert evidence which has not been excluded under the present
rules. The Working Party accordingly recommends against adopting Proposal 38.
Under Proposal 39, five measures aimed at countering a lack of impartiality or
independence among expert witnesses were canvassed. Three of these received
widespread support: (i) a rule expressly emphasising the supremacy of the expert's
duty to the court over and above any duty owed to the client or person paying his fees;
(ii) a rule requiring the expert to acknowledge that overriding duty in his report; and
(iii) a rule requiring him to declare his agreement to be bound by an approved code of
conduct for experts. The Final Report makes recommendations along those lines.
The fourth measure, involving the suggestion that experts be required to disclose the
substance of the instructions upon which their report is based, raised serious concerns
as to the abrogation of legal professional privilege and possible inconsistency with the
right to confidential legal advice protected by Article 35 of the Basic Law. In the light
of these concerns (which raise arguable issues), the Working Party has decided against
adoption of this proposal.
|
 |
|