K16.2. Inappropriate or excessive use of experts
490. |
Experts once tended to come only from certain
professions, such as doctors, accountants, engineers or architects. The courts now
encounter witnesses tendered as experts in almost every conceivable field of human
endeavour. That is no bad thing in itself provided the discipline and expertise are real
and provided the court is actually assisted by such evidence. However, in many cases,
expert evidence is adduced where none is called for and on occasion, the existence of the
allegedly expert discipline is doubtful. Frequently, too many experts are deployed
addressing too many issues, when such evidence is really only needed or helpful on one or
two key matters. |
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491. |
A problem of this nature suggests the need for
case management. However, such a course was inhibited by doubts as to whether the court
could, on procedural grounds, exclude expert evidence where the parties wished to use it.
(Note 436) As
previously discussed in connection with witness statements, this kind of difficulty has
now been overcome in England and Wales. The express rule-making power conferred by the
Civil Procedure Act 1997 Schedule 1, para 4, has led to the promulgation of various rules
including CPR 32.1 and CPR 35.1 giving the court powers to control the scope of the
evidence on particular issues and to exclude evidence that would otherwise be admissible.
Also as previously noted, if similar judicial powers are to be provided for in Hong Kong,
it would be desirable for a similar legislative amendment to be made. |
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492. |
To counter the problem of inappropriate or
excessive use of experts, Lord Woolf proposed that the court should have "complete
control over the use of evidence, including expert evidence." (Note 437) This is reflected in CPR 35.1 which states :- |
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"Expert evidence
shall be restricted to that which is reasonably required to resolve the proceedings." |
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CPR 35.4 goes on to provide :- |
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"(1) |
No party may call an
expert or put in evidence an expert's report without the court's permission. |
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(2) |
When a party applies
for permission under this rule he must identify - |
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(a) |
the field in which he
wishes to rely on expert evidence; and |
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(b) |
where practicable the
expert in that field on whose evidence he wishes to rely. |
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(3) |
If permission is
granted under this rule it shall be in relation only to the expert named or the field
identified under paragraph (2)." |
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These are powers which enable the court, on
application or of its own motion, to disallow objectionable, unnecessary or excessive
expert evidence. Moreover, where the parties both want to put in expert evidence, the
court has power under CPR 35.7(1) to direct that a single joint expert be appointed,
(Note 438) a power
discussed further later. |
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493. |
Supporting rules aimed at encouraging useful
and proportionate expert reports, at restricting costs and at promoting an equality of
arms include the following :- |
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* |
CPR 35.4(4) which allows the court to limit
the amount of expert fees and expenses which one side may recover from the other. |
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* |
CPR 35.6 which allows a party one opportunity
to put to the other side's expert (or a single joint expert, if one has been appointed)
written questions about his report with a view to clarifying it. This appears to be a
useful and economical power. |
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CPR 35.9 which enables a party to seek the
court's direction for access to information held by the other side but not reasonably
available to himself. |
Notes
436 |
WIR, p 185 §17. <back> |
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437 |
WFR, p 139 §13. <back> |
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438 |
CPR 35.7(1):
"Where two or more parties wish to submit expert evidence on a particular issue, the
court may direct that the evidence on that issue is to given by one expert only."
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