Presenting Expert Evidence in Court and before Tribunals:

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1 Presenting Expert Evidence in Court and before Tribunals: The Lawyer s Perspective By Manmohan S Dhillon Advocate & Solicitor Malaysia

2 Expert Evidence On matters outside the learning of the court P S Ranjan & Co

3 Saeng-Un Udom v Public Prosecutor [2001] 3 SLR 1, C.A. Trial judge not entitled to venture his own opinion on a matter which was clearly outside the learning of the court.

4 Low Moh & Anor. V Public Prosecutor (1954) 20 MLJ 14 Trial judge applied his own knowledge of hydraulic braking systems in motor vehicles Decision set aside on appeal

5 Bellamy J It is an elementary proposition of law, too frequently overlooked with resulting confusion and possible injustice, that cases must be decided on the evidence and that evidence must be such as is relevant and admissible under the Evidence Ordinance, that is, it must be either from admitted documents or the statements of witnesses or be something of which the court can take judicial notice.

6 Cont. The mechanical working of the braking system of a motor vehicle, albeit the standard hydraulic brake, and how such a braking system operates or fails to operate under normal conditions are not matters of which the court can take judicial notice under the Evidence Ordinance. These are matters which must be proved as facts.

7 Need for medical expert evidence may arise in a variety of cases

8 Examples Personal injury, including medical malpractice, claims Criminal cases Employment cases Matrimonial, child custody, and child care proceedings Authorisation or withdrawal of medical treatment

9 Cont. Doping and gender in sport Testamentary capacity Insurance disputes

10 A variety of issues may arise, e.g.: Whether there was a breach of the duty of care Cause of death or injury Whether a person was of unsound mind Age of accused person or victim of crime Needs of child Fitness for employment

11 A variety of courts and tribunals, e.g.: The High Court A coroner (in Malaysia, actually a Magistrate conducting an inquiry into a sudden or suspicious death) A court martial A commission of inquiry The Industrial Court

12 Differences often exist as regards such matters as jurisdiction, rules of procedure and evidence between one court or tribunal and another

13 Mode of presentation and the substances of evidence, including expert evidence, would depend on such matters

14 An early question Is expert evidence necessary?

15 If so, on what issue?

16 Choosing an expert Not easy Great care required

17 There are liars, damned liars, and experts.

18 Experts The Need for Credibility

19 Credibility Qualifications Experience Diligence Freedom from bias Honesty Carefulness

20 The court as the sanctuary of truth Lawyers and experts have a vital role and heavy duties in law and ethics to serve the cause of justice

21 Instructing an expert The facts, including relevant witness statements and documents The charge or pleadings The questions to be answered by the expert Advice on the relevant law, including the legal principles applicable to the issues, and the relevant rules of evidence and procedure

22 Consultation between lawyer and expert Necessary

23 Lord Wilberforce in Whitehouse v Jordan [1981]1 WLR 246, at pp 256 & 257 I have to say I feel some concern as to the manner in which part of the expert evidence called for the plaintiff came to be organised.while some degree of consultation between experts and legal advisers is entirely proper, it (is) necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating.

24 Counsel had settled the plaintiff s experts joint report Counsel had also blacked out a couple of lines in another expert s report in which the expert had agreed with yet another expert that there was no negligence see the judgment of Lord Denning in the Court of Appeal [1980] 1 All ER 650, at p 655

25 Andrew Bartlett QC in Counsel, The Journal Of the Bar of England and Wales, October 1993 Lord Wilberforce s obiter dictum is incautious.

26 Andrew Bartlett In practice, it is impossible to comply with and at the same time properly prepare a case for trial. It is the duty of the lawyers conducting litigation to ensure that the experts reports are suitable both in form and in content for the needs of the litigation. To the extent that a report is not influenced in form and content by the needs of the litigation, it is likely to hinder the due administration of justice and to result in costs being wasted.

27 Powers and Harris in Medical Negligence, 2 nd edn., para Clearly there is a duty upon both the solicitor and barrister not to mislead the lay client, legal aid area committee, the court, or indeed anyone, by settling a report which does not represent the validly held and relevant views of the expert concerned.

28 Powers and Harris, in para An expert may be asked to amend any preliminary report in the light of the issues which it emerges are central to the case and to make other adjustments to his written opinion so as to reflect more closely the weight and tenor of the opinion that he has given in conference. It is commonly the case that a view formed in a first stage report requires extensive revision if not an about-turn on the opinion expressed once the expert has considered the matter more fully with the client, other experts and the lawyers.

29 Where there is compulsory disclosure and exchange between the parties of experts reports before trial All the more reason that there must be adequate consultation between experts and lawyers before a report is finalised for disclosure and exchange

30 The Expert in Court C.V. Relevant documentary evidence Notes of proceedings Relevant literature Anatomical models and drawings, atlases, etc. Instruments and equipment

31 Expert sitting in and/or reading notes of proceedings before giving his evidence

32 Tomlinson v Tomlinson [1980] 1 WLR 322 The practice of excluding witnesses from the court of course does not apply and never has applied to the parties themselves or their solicitors or their expert witnesses. Those are never excluded from the court.

33 Sarkar s Law of Evidence (15 th edn.), p 883 but the better course to follow is that the expert should hear the evidence as to which he is asked his opinion.

34 Dr Soo Fook Mun V Foo Fio Na [2001] 2 MLJ 193 Expert may properly read the notes of evidence before he gives his opinion evidence

35 The Need for a Factual Foundation for an Expert s Opinion See Pacific Tin & Consolidated Corporation v Hoon Wee Thin [1967] 2 MLJ 35, FC (Malaysia)

36 Conversely, an expert s opinion may be challenged by attacking the factual foundation for the opinion

37 Grounds for an expert s opinion are relevant See the Evidence Act 1950, s 51

38 Rejection of Expert Evidence by the Court must be based on sound grounds - see Saeng-Un Udom Dr Lo Sook Ling Adela v Au Mei Yin Christina [2002] 1 SLR 408, C.A.

39 Dissatisfaction with Experts

40 But what about the part played by litigants, lawyers and judges?

41 Even sound expert evidence can be wasted in court

42 An unsound expert evidence may get accepted by the court

43 Thank You