Who does an expert witness owe a duty to?
This is probably the most important aspect of an expert’s work. His duty is to the court and he has to maintain his independence at all times. This has been enshrined in the court rules in many parts of the world.
Nothing is a waste of time if you use experience wisely.” Auguste Rodin
Originally the duties of an expert were covered in a court case, which is now known as the Ikarian Reefer Rules. This was follows a judgement by Mr. Justice Cresswell in National Justice Compania Naviera SA v Prudential Assurance Company Limited in 1993.
Since then various legal jurisdictions have produced detailed rules such as:
- English Civil – Civil Procedure Rules Part 35, Practice Direction 35 and the Guidance for the instruction of experts in civil claims 2014.
- English Criminal – Criminal Procedural Rules part 19.
- Scotland – No formal rules but there is a Code of Practice and case law similar to Ikarian Reefer principles.
- Guernsey – The Evidence in Civil Proceedings (Guernsey and Alderney) Rules 2011.
- Ireland – The Ikarian Reefer Rules confirmed in the Court of Appeal by the case of Duffy v Brendan McGee and Anor [2022] IECA 254.
- The Netherlands – Practice direction for experts in Dutch civil law cases, Administrative Matters (only in Dutch) and the Model Expert’s Opinion.
- Switzerland – Article 272 of Swiss Civil Procedure Code.
- Europe – Civil Litigation Guide (to be enacted) and published in 8 languages – Expert’s European Guide for Legal Expertise including Code of Conduct.
- Council of Europe – Human Rights and Rule of Law – European Commission for the Efficiency of Justice (‘CEPEJ’) – Guidelines on the role of court-appointed experts in judicial proceedings of Council of Europe’s Member States.
- Australia – Practice Notes for the Federal Court.
- Canada – The Ikarian Reefer Rules confirmed in the Supreme Court by the case of White Burgess Langille Inman v. Abbott and Haliburton Co. [2015] 2 SCR 182 and Rule 53.03 Code of Conduct for Expert of the Federal Court Rules and The Advocates’ Society – Links to practice directions in all Canadian States for testifying experts.
- New Zealand – The Ikarian Reefer Rules confirmed in the Supreme Court by the case of Ellis v R [2022] NZSC 115.
- Bermuda uses the Ikarian Reefer Rules precedent.
- Eastern Caribbean – The Ikarian Reefer Rules confirmed in the Supreme Court High Court of Justice (Civil) by the case of Scatliffe and Scatliffe v Flax and Anor, Claim No. BVIHCV 2010/0053, 26 October 2017
- Kenya – The Ikarian Reefer Rules confirmed in the High Court of Kenya by the case of .
- Dubai International Financial Centre (‘DIFC’) Rules part 31 and Schedule.
- Hong Kong uses the Rules of the High Court precedent.
- Singapore – General Overview Digest 1 and Practice Directions Index; High Court, Rules of Court – Evidence Act – Order 12, Appendix A – Form 12, Practice Direction – Appendix B/7; Singapore International Commercial Court (‘SICC’) – Evidence Act – Order 14, SICC PD Part Xiii paragraphs 87 to 90.
- US – Federal Rules of Civil Procedure, Rule 26 and also by Federal Rules of Evidence, Rule 706.
There are also some places that still have no rules, but in such cases it then becomes common to adopt the rules from a known jurisdiction, usually the English ones and then reinforce with their own judgements to make it part of common law.
Biases may be conscious and unconscious. An expert’s partiality may be implicated for the following reasons:
- Failure to disclose previous correspondence with either party including private or business relationships that are external from the dispute at hand. This is usually a form of conscious bias.
- An expert that alters his or her view throughout the case and is swayed by the opinion of other experts.
- Experts may even be challenged on the methodology that they use to arrive at their conclusions. Whilst this form of bias is usually unconscious, it merely suggests that an expert’s evidence will not stand up against conflicting evidence or testing and is generally perceived as flawed by their intellectual community. In the United States the terminology used for an expert that is challenged on these grounds is a Daubert challenge, but courts elsewhere may use different nomenclature.
Court recommended measures for mitigating expert bias include:
- Probative questions during cross-examination, an expert’s opinions should be able to stand up to the questions of other experts during this stage.
- Concurrent expert evidence or ‘hot-tubbing’, a method commonly used in Australia; is a discussion chaired by a judge, whereby the various experts, and the judge engage in a co-operative endeavour to identify the issues of the case and arrive where possible at a common resolution of them. Due to the fact that throughout this process the experts are autonomous from their clients, but moreover responding to the judge, their duty to the court is upheld. The other great benefit of concurrent evidence or ‘hot-tubbing’ is that experts are able to respond directly to one another. In complex intellectual fields, where technical points may be disputed this helps to reduce the margin for bias within methodologies, as experts can clearly discuss why one methodology should be favoured over another.
Please do not expect an expert to support the case irrespective of the facts, it will avoid disappointment. Although he will not be part of the legal team who is arguing for a litigation party – he is probably a really asset if he is used correctly.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.