Appointing a Joint Expert in Court: What You Need to Know
If one is involved in a court case that relates to technical issues which are not common knowledge, an expert may be helpful in understanding what went wrong, whether the issue was one of defective construction works, plumbing problems or some other scientific issue.
An expert witness is different from a factual witness in that factual witnesses give evidence of the matters which they themselves witnessed. For example, a factual witness who was a family member staying in the Plaintiff’s house may say that she visually had sight of the defective construction works performed by the Defendant in their house. On the other hand, an expert witness would typically be an independent party in the matter, who is not conflicted and may not have had sight of the allegedly defective works, but may be asked by the Defendant to provide an opinion that it was more likely than not that the cause was wear and tear.
Typically, a joint expert is appointed by both parties instead of each side hiring their own expert. This is reflected in the Rules of Court 2021, where parties as far as possible, parties must agree on one common expert. Further, a party can only rely on expert evidence from more than one expert for any issue only in a special case and with the Court’s approval.
An expert has the duty to assist the Court and this duty overrides any obligation to the person from whom he receives instructions or by whom he is paid.
When Will the Court Allow an Expert?
The Court does not automatically allow for expert evidence just because a party requests for it. Under the Rules of Court 2021, no expert evidence may be used unless the Court approves and the Court must not approve the use of an expert unless it will contribute materially to deciding an issue in the case.
This means that the party/parties requesting for the expert must convince the Court that the issue involves specialised knowledge, such as engineering or medicine, and that the issue cannot be resolved merely though agreed facts or submissions based on mutually agreed materials.
The Court may also reject the expert’s evidence if it is of the view that the expert lacks the requisite specialised knowledge in the issues referred or the expert is not impartial.
What If the Parties Cannot Agree on an Expert?
In the case that both parties agree that an expert is required but disagree on whose expert to appoint, the Court will step in and decide.
It is important to note that both parties are jointly and severally liable to pay the expert. This means that if one party does not pay their share, the expert is able to claim the full amount from the other party. The paying party may then wish to try recovering the unpaid share from the defaulting party.
What Factors Does the Court Consider?
When deciding whether to allow an expert, the court may look at one or more of the following factors:
- Pleaded Case: Expert evidence must be relevant to the issues already raised in the cause papers.
- Cost and Proportionality: The Court will consider the cost of hiring the expert. If this significantly increases costs, its necessity will be questioned. This is particularly salient in smaller claims where the expert’s fees could amount to a sum exceeding the amount in dispute.
- Type of Evidence: The evidence needed must be expert evidence and not evidence of fact. In other words, it must be a matter which requires opinion or explanation.
This publication is not intended to be, nor should it be taken as, legal advice. It is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking any action(s) based on this publication. We shall not be responsible for, nor do we accept any responsibility for, any loss or damage that may arise from any reliance on this publication.