Changes to the Courts’ Requirements for Expert Reports
Rule 160 of the Supreme and District Court Civil Rules 2006 has been amended resulting in changes in the obligations and requirements for parties requesting expert reports and the experts themselves.
Amendment No. 33 to the Supreme Court Civil Rules 2006 and Amendment No. 34 to the District Court Civil Rules 2006 have made significant changes to Rule 160 which deals with expert reports, and are to come into effect on1 October 2016 and relate to existing and new actions.
The new Rule 160 will incorporate the following changes:
- Sub-rule 106(2A) has been inserted which requires that a letter to an expert requesting an expert report must now set out (a) the assumptions the expert is requested to make for the purpose of expressing an opinion; (b) the materials provided to the expert for the purpose of expressing an opinion; and (c) the questions on which the expert is asked to express an opinion.
- Sub-rule 160(2B) has also been inserted and requires that a copy of the sub-rule 160(2A) letter must be served on each other party to an action within five business days of the letter being sent to the expert.
- ‘Responsive report’ and ‘prior expert’ are new terms introduced by the amendment. A ‘responsive report’ is a report obtained by a party in response to, or in the same field of expertise and dealing with the same subject matter, as an expert report by a ‘prior expert’.
- Under the newly inserted sub-rule 160(2C), an expert preparing a responsive report should, to the extent practicable, confer with the prior expert about the assumptions and opinions the subject of their respective reports.
Furthermore, additions to sub-rule 160(3) provide that the author of a responsive report should state in their report: whether the relevant prior expert was consulted and if not, provide reasons; and identify in their report any differences in assumptions made and opinions expressed by them compared to the assumptions made and the opinions expressed by the prior expert.
The previous requirements under Rule 160(3) regarding matters that should be addressed by experts remain unchanged.
- Within 60 calendar days after a party is required to disclose documents in an action in accordance with Rule 136 (“the relevant time for disclosure”), a party can apply to the Court to be relieved of the obligation to disclose an expert report or information relating to it. Under the old Rule 160, such an application had to be made no later than five business days after the relevant time for disclosure.
The concept of a ‘summary expert report’ is introduced. This is a report by an expert that sets out in summary form the assumptions made and opinions held by the expert on issues relevant to the action but that is not required to comply with the requirements of Rule 160(3).
New sub-rule 160(8) provides that before the end of 60 calendar days of the relevant time for disclosure, a party to an action is at liberty to obtain and serve a summary expert report.
- If a party obtains an expert report (including a summary expert report) before the relevant time for disclosure, unless otherwise ordered by the Court, a copy of the expert report must be served on each other party to an action within five business days of receipt of the expert report.
Sub-rule 160(10) has been inserted expressly “for the avoidance of doubt” to clarify that that any expert report (including summary expert reports) served under Rule 160 is not subject to legal professional privilege and may therefore be tendered in evidence and the subject of questions at trial.
The Supreme and District Court Supplementary Rules relating to expert reports (contained in Chapter 7, Part 9, Division 2), that importantly set out an expert’s general duty to the Court, remain unchanged.
This change will have significant implications for the way that parties request and disclose expert reports in the District Court and Supreme Court from 1 October 2016.
The requirement for an expert to confer with the prior expert before providing a responsive report appears to introduce a type of “hot-tubbing” to the process when such orders (in appropriate matters) usually are made closer to Trial in preparation for concurrent evidence.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.