Experts should comply or they must rectify – how deep are their pockets?

It is well known that parties in litigation in New South Wales must always bear in mind their obligations arising out of s56 of the Civil Procedure Act 2005 (NSW) (Act). Specifically, s56 (3) of the Act necessitates that parties must assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings. It then follows that solicitors have the obligation to provide ample and timely instructions to experts so as to avoid noncompliance with Court directed timetables.

The obligation does not end there; experts themselves bear accountability directly to the Court for compliance with timetables and directions in respect of the form of the report they must prepare as well as the service and filing of the report.

In Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquire Health Corporation Ltd [2013] NSWSC 970 (Macquarie International Health Clinic), Kunc J determined that the obligations of experts to comply with directions of the Court are paramount and failure to do so may bring about an array of consequences including explanations to the Court regarding the delay via affidavit evidence, personal attendance so as to enable the Court to question the expert and most notably, although rare but certainly possible, personal costs orders against the expert themselves.

Macquarie International Health Clinic saw ‘continued slippage in compliance with the timetable for the filing of experts reports by the plaintiff’. Kunc J outlined the legal framework as follows:

S 61(2)(c) of the Act empowers the Court to give such other directions with respect to the conduct of proceedings as the Court considers appropriate. UCPR r 31.17, dealing with evidence, identifies that one of the main purposes of that division is (UCPR r 31.17 (f)) to declare the duty of an expert witness in relation to the Court and the parties to proceedings. UCPR r 31.23(1) requires an expert witness to comply with the Code of Conduct set out in Sch 7. The Expert Witness Code of Conduct set out in Sch 7 provides in cl 3(1) that “an expert witness must abide by any direction of the Court.’

Consequently, once a retainer is accepted by the expert, the expert becomes subject to all directions of the Court which concern them and must then be prepared to comply with any such direction. Should a failure to abide result, Kunc J outlined the ramifications that may be imposed by the Court to ensure that the expert is accountable for such non-compliance. These include:

  • the expert will have to explain to the Court why there has been non-compliance with the directions in so far as the non-compliance is the fault of the expert. In some cases, the Court will necessitate that this be done via personal explanations from experts by way of affidavit and not the solicitors; and
  • experts will have to attend on the following occasion before the Court to explain themselves; and
  • in extremely rare cases, experts could be individually and personally liable for costs orders insofar as their non-compliance causes costs consequences to any party, and so long as that non-compliance can be visited upon the expert.

Experts should be aware that pressures from other business are inexcusable causes for non compliance.

Kunc J at [9] took the opportunity to send a broad and clear message:

“It is nevertheless appropriate to remind the profession and the expert community generally of the obligations that experts themselves bear directly to the Court in the discharge of what is a very important role in the due administration of justice by assisting the Court to arrive at just outcomes in the particular cases before it.”

The ‘take home’ message:

Macquarie International Health Clinic serves as a reminder to all involved in litigation that Court timetables and directions are ‘of the essence’ and failure to comply with these will require explanation and may even result in personal costs consequences.

Experts should consider other business obligations prior to accepting retainers and provide the solicitors who engaged them with measured and accurate estimates of the time required to complete reports.

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