January 28, 2025
Last week, we explored the duties and obligations of expert witnesses under the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). However, the UCPR also sets out a number of rules for expert conferences and joint reports. As such, the third and final article of this series will provide an overview of expert conclaves and joint expert reports before diving into the applicable UCPR rules.
EXPERT CONCLAVES & JOINT EXPERT REPORTS
An expert conclave, or ‘hot tubbing’ (as they are commonly referred), is a private meeting between experts in the same or similar field of expertise, for the purposes of comparing, discussing and finalising opinions on matters in issue in the proceedings. In most cases, courts will request the experts to produce a joint expert report out of their discussion, which is a written document specifying matters agreed and not agreed upon, and the reasons for any disagreement.
Instructing solicitors, counsel or clients are not permitted to attend conclaves. However, courts may direct the conclave be held with the assistance of a facilitator – a person who is independent of the parties to the proceeding, whether or not the person is also an expert in relation to an issue being considered at the conclave.[1] As opined by Johnson J in KF v Royal Alexandra Hospital, the appointment of a facilitator will serve to explain to the experts the nature of the task to be undertaken at the conclave without engaging in debate with the experts.[2] Furthermore, appointing a facilitator may mitigate the risk of one expert being dominated by another during the conclave.
Increasingly, courts have directed experts to participate in conclaves. When conducted effectively and fairly, conclaves can expedite the hearing process in complex matters by reducing the number of facts in dispute. Moreover, costs and expenses for both parties may be reduced. Conclaves can also provide experts with the opportunity to practise presenting and persuading others of their opinion. It can be, in effect, a practise run for cross-examination in court. From the perspective of lawyers, a conclave can also serve as an opportunity to ensure that their expert’s argument is compelling and persuasive compared to the other expert opinion.
UCPR RULES
Under rule 428(1) of the UCPR, the court may, at any time, direct that 2 or more experts who are to give evidence in a proceeding hold a conference in which they identify, and attempt to resolve, any disagreement between them, and jointly prepare a report about the conference that states the matters on which the experts agree, disagree and the reasons for any disagreement.
In holding the conference and preparing the joint reports, experts must exercise independent judgment, endeavour to reach an agreement on any matter on which they disagree and must not act on any instruction or request to withhold or avoid reaching an agreement.[3] Importantly, the Code of Conduct for Experts, contained in Schedule 1C of the UCPR (see last week’s article), applies with full force and effect to the conference and the preparation of the joint report.
The UCPR also permits communications between experts and parties, albeit under limited circumstances. Any of the experts may, in writing –
(a) ask the parties for information that may assist the proper and timely conduct or conclusion of the conference or preparation of the joint report; or
(b) inform the parties of any matter adversely affecting the proper and timely conduct or conclusion of the conference or preparation of the joint report.[4]
However, a communication made by any of the experts must be made jointly to all of the parties, stating whether or not all of the experts agree on the terms of the communication and if all of the experts do not agree on the terms of the communication, the matters on which the experts disagree.[5] Subsequently, any response by a party to a communication must be in writing, be addressed to the experts jointly, and be in terms agreed to by the parties or directed by the court.[6]
Finally, evidence of anything done or said at a conference is admissible in the proceeding only if all of the parties to the proceeding agree.[7]
Lamont Project & Construction Lawyers
The Lamont Project & Construction Lawyers team has extensive knowledge and experience dealing with expert evidence. With this knowledge and expertise, Lamont Project & Construction Lawyers can provide the required support and advice for litigation of all scopes and sizes.
If you would like to discuss any matters raised in this article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.
The content of this article is for information purposes only and does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.
Contact: Peter Lamont or Cliff Mei
Email: [email protected] or [email protected]
Phone: (07) 3248 8500
Address: Level 2, 349 Coronation Drive, Milton Qld 4064
Postal Address: PO Box 1133, Milton Qld 4064
[1] Uniform Civil Procedure Rules 1999 (Qld) r 428(2)(d), r 428(4) (‘UCPR’).
[2] KF v Royal Alexandra Hospital[2011] NSWSC 399.
[3] UCPR r 429A(1).
[4] UCPR r 429B(1).
[5] UCPR r 429B(2).
[6] UCPR r 429B(3).
[7] UCPR r 429C(1).