the expert also accepted that this drafting had selectively reproduced portions of a book she had written on the topic which were favourable to the applicant’s case.
Accordingly, Justice McElwaine held that the expert’s impartiality was substantially undermined by her failure to disclose how her expert report was prepared. He also found that that the solicitors’ conduct in preparing and delivering the expert’s report was itself misleading because it gave the impression that they weren’t substantively involved in preparing the report before that point.
Consequently, he was not satisfied that the opinions expressed in the report represented the expert’s honest and independent opinions, nor that she had not withheld any matters of significance.
Additionally, Justice McElwaine had no confidence that the expert’s oral evidence was untainted by the factual material and the opinions expressed in her written report, as well as the manner of its preparation. As a result, he declined to make any factual findings based on any of her evidence.
This case shows that where it is unclear who is responsible for the drafting of any given portion of an expert report, there is a risk that all of the evidence in such a report may be held inadmissible as a consequence.
Involvement of lawyers with report drafting
The court noted that, in some circumstances, the fact that an expert witness may agree with a form of words for the expression of the expert’s opinion, which are put to the expert in an admissible form, may not detract from the independence of the expert and the reliability of their opinion expressed. Indeed, Justice McElwaine observed that lawyers should be involved in the writing of reports by experts on matters of form. His Honour confirmed that it may be perfectly appropriate, such as in cases where an expert is unfamiliar with the form and content requirements for an expert opinion report, for that document to be settled in an admissible form by someone else provided that that fact is disclosed in the report.
There may even be circumstances where it is proper for lawyers to draft an independent expert witness statement under the directions of, or for consideration by, an expert, but that fact must be disclosed in the report.
The guiding principle is that care should be taken to avoid any communication which may undermine, or appear to undermine, the independence of an expert.
Letters of instruction
Justice McElwaine noted that letters of instruction to an expert should not convey the representation that an expert will, upon receipt of instructions, set about preparing a report, if that is not in fact the case.
The fact that the author of a letter of instructions asks questions for which they already know the content and form of an expert’s answers is relevant in this respect.