Court rejects expert’s evidence – independence remains paramount

04 July 2022

An expert’s report and her evidence was rejected due to the involvement of the instructing solicitors in the production of her report.

In issue

  • The Federal Court heard a claim by New Aim Pty Ltd (the applicant) concerning alleged use of confidential information by its former employees, including Mr Leung (the first respondent). The applicant relied on expert evidence obtained from Ms Chen (the expert). The expert’s independence was questioned by the respondent during cross examination and McElwaine J was required to consider to what extent he could rely on her report and her evidence provided during the trial.

The background

The applicant is an e-commerce business. It alleged that a number of former employees utilised confidential information obtained during their employment with the applicant including the identity of its suppliers in China.

At trial, the applicant relied on a report prepared by the expert dated 8 March 2022, addressing various issues in relation to the supply of goods from China. During cross examination the respondent’s counsel challenged the authorship of the expert’s report, noting that the applicant’s solicitors’ letter of instruction was dated 7 March 2022, 1 day prior to the date of her report.

The expert admitted that she had held conversations with the applicant’s solicitors prior to provision of their letter of instruction to her. Further, she had prepared a number of draft reports that had been provided to the applicant’s solicitors for review. The contents of the reports were discussed during a video-conference held between the expert and the applicant’s solicitors. The expert admitted under cross-examination that the second version of her report had been “put together” by a solicitor representing the applicant.

It was put to the expert that some paragraphs of her final report closely resembled paragraphs in a witness statement of the applicant’s Chief Operating Officer, and that these paragraphs had been drafted by the applicant’s solicitors. The expert conceded that '…if you say every words of the sentence is exactly 100 per cent written by me, no.' [sic]

At the request of the respondent, the trial was briefly adjourned and the expert was ordered to produce all correspondence sent to her by the applicant’s solicitors, concerning the production of her report. Relevantly, an email was produced from the applicant’s solicitors, to the expert, attaching a draft witness statement and a draft expert report. Under further cross-examination the expert agreed that her report was a 'collaboration' between her and the applicant’s solicitors.

The decision at trial

McElwaine J concluded that he was required to reject the expert’s evidence, in its entirety.

He found that, whilst an expert can agree with a form of words that has been put to them without detracting from their impartiality, and whilst another person may settle an expert’s report in order to comply with admissibility aspects, the involvement of the applicant’s solicitors in this instance went well beyond the scope of permissible involvement.

To that end, whilst he was left uncertain as to who had prepared portions of the expert’s final report, he found that at least initially a substantive portion had been prepared by the applicant’s solicitors. He concluded that the expert had not complied with the requirements of the Expert Evidence Practice Note and the Harmonised Expert Witness Code of Conduct.

Further, McElwaine J found that the conduct of the applicant’s solicitors was misleading, in that its letter of instruction of 7 March 2022 implied that the expert was to thereafter consider the issues, whereas in fact the applicant’s solicitors had already prepared a draft report prior to issuing the letter of instruction. Its conduct in doing so was said to be 'most concerning as it strikes at the very heart of the paramount and overriding duty that an independent expert has to assist the court impartially…'.

Implications for you

The decision is an important reminder about the extent to which instructing solicitors can involve themselves in the production of an expert’s report and the disclosure obligations that are required in that regard. Both experts and instructors should consider the obligations of experts that are set out in various jurisdictions by way of Practice Notes and other similar directions concerning expert evidence.

As demonstrated, the consequences for failing to ensure that an expert complies with their duty of independence, impartiality and to assist the court, can be severe.

New Aim Pty ltd v Leung [2022] FCA 722

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