|Finkelstein, Manne and Hamilton|
Guidelines1. General Duty to the Court
1.1 An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.
1.2 An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential3.
1.3 An expert witness’s paramount duty is to the Court and not to the person retaining the expert.
2. The Form of the Expert Evidence4
2.1 An expert’s written report must give details of the expert’s qualifications and of the literature or other material used in making the report.
2.2 All assumptions of fact made by the expert should be clearly and fully stated.
2.3 The report should identify and state the qualifications of each person who carried out any tests or experiments upon which the expert relied in compiling the report.
2.4 Where several opinions are provided in the report, the expert should summarise them.
2.5 The expert should give the reasons for each opinion.
2.6 At the end of the report the expert should declare that “[the expert] has made all the inquiries that [the expert] believes are desirable and appropriate and that no matters of significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the Court.”
2.7 There should be included in or attached to the report: (i) a statement of the questions or issues that the expert was asked to address; (ii) the factual premises upon which the report proceeds; and (iii) the documents and other materials that the expert has been instructed to consider.
2.8 If, after exchange of reports or at any other stage, an expert witness changes a material opinion, having read another expert’s report or for any other reason, the change should be communicated in a timely manner (through legal representatives) to each party to whom the expert witness’s report has been provided and, when appropriate, to the Court5.
2.9 If an expert’s opinion is not fully researched because the expert considers that insufficient data are available, or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report (see footnote 5).
2.10 The expert should make it clear when a particular question or issue falls outside the relevant field of expertise.
2.11 Where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter, these must be provided to the opposite party at the same time as the exchange of reports6.