PART 31

Experts and assessors

I       EXPERTS

Introductory

31.1    A reference to an `expert’ in this Section of this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of Tribunal proceedings.

31.2    Parties are referred to the English “Protocol for the Instruction of Experts to give evidence in civil claims” which is reproduced at Schedule A to this Part. Not all parts of the Protocol are applicable to litigation before the Tribunal but the Protocol provides valuable practical guidance both to those who instruct experts and experts themselves as to what they are expected to do in civil and commercial proceedings before the Tribunal. The Tribunal will expect legal practitioners and experts to have read the Protocol.

Experts – Overriding duty to the Tribunal

31.3    It is the duty of an expert to help the Tribunal on the matters within his  expertise.

31.4    This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

31.5    Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

31.6    An expert should assist the Tribunal by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate.

31.7     An expert should consider all material facts, including those which might  detract from his opinion.

31.8     An expert should define his expertise (so far as relevant to the procedings) and in particular should make it clear:

        (1)       when a question or issue falls outside his expertise; and

        (2)       when he is not able to reach a definite opinion, for example because he has insufficient information.

31.9    If an expert’s opinion is not properly researched because he considers that insufficient data is available, this must be stated in his report with an  indication that the opinion is no more than a provisional one.

31.10    In a case where an expert witness who has prepared a report is unable to confirm that the report contains the truth, the whole truth and nothing but the  truth without some qualification, that qualification must be stated in the report.

31.11    If, after producing a report, an expert changes his view on any material matter,such change of view should be communicated to all the parties without delay, and when appropriate to the Tribunal (through the legal representatives of the party instructing the expert or directly to the Tribunal in the case of a  Tribunal-appointed expert).

Tribunal’s power to restrict expert evidence

31.12    Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

31.13    No party may call an expert or put in evidence an expert’s report without the Tribunal’s permission.

31.14    Any application for permission to call an expert witness or serve an expert’s report should normally be made at the Case Management Conference.

31.15    When a party applies for permission under Rule 31.13 he must identify ­

(1)      the field in which he wishes to rely on expert evidence; and

(2)      where practicable the expert in that field on whose evidence he wishes to rely.

31.16    If permission is granted under Rule 31.13 it shall be in relation only to the expert named or the field identified under Rule 31.15.

31.17    In appropriate cases the Tribunal will direct that the reports of expert witnesses be exchanged sequentially rather than simultaneously. This is an  issue that the Tribunal will normally wish to consider at the Case Management Conference.

31.18   The Tribunal may limit the amount of the expert’s fees and expenses that the party who wishes to rely on the expert may recover from any other party.

Orders

31.19    Where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the
expert instructed by him.

General requirement for expert evidence to be given in a written report

31.20    Expert evidence is to be given in a written report unless the Tribunal directs otherwise.

Documents referred to in experts’ reports

31.21    Unless they have already been provided, copies of any photographs, plans, analyses, measurements, survey reports or other similar documents relied on by an expert witness as well as copies of any unpublished sources must be provided to all parties at the same time as his report.

31.22    Rules 28.10 to 28.12 provide that (subject to Rule 31.53) a party may inspect a document mentioned in an expert’s report. An expert’s report will frequently list all or many of the relevant previous papers (published or unpublished) or books written by the expert or to which the expert has contributed. Requiring inspection of this material may often be unrealistic, and the collating and copying burden could be considerable.

31.23    A party wishing to inspect a document in an expert report should (failing agreement) make an application to the Tribunal. The Tribunal will not permit inspection unless it is satisfied that it is necessary for the just disposal of the case and that the document is not reasonably available to the party making the

31.24   A party may put to ­

          (1)       an expert instructed by another party; or

(2)       a Tribunal-appointed expert appointed under Rule 31.29,

written questions about his report.

31.25   Written questions under Rule 31.24 ­

(1)       may be put once only;

(2)       must be put within 28 days of service of the expert’s report; and

(3)       must be for the purpose only of clarification of the report,

unless ­

(a)     the Tribunal gives permission; or

(b)     the party who has instructed the expert agrees.

31.26   In cases where questions that are oppressive in number or content are put, or questions are put for any purpose other than clarification of the report, the Tribunal will disallow the questions and make an appropriate order for costs against the party putting them.

31.27    An expert’s answers to questions put in accordance with Rule 31.24 shall be treated as part of the expert’s report.

31.28    Where ­

(1)      a party has put a written question to an expert instructed by another
party in accordance with Rule 31.24; and

(2)      the expert does not answer that question,

the Tribunal may make one or both of the following orders in relation to the party who instructed the expert ­

(a)     that the party may not rely on the evidence of that expert; or

(b)     that the party may not recover the fees and expenses of that expert from any other party.

 

Tribunal-appointed expert

31.29   The Tribunal may appoint one or more independent experts to report to it on specific issues designated by the Tribunal.

31.30   Not less than 21 days before making any such appointment, the Tribunal will notify each party in writing of the name of the proposed expert, of the matter in respect of which the opinion of the expert will be sought and of the
qualifications of the expert to give that opinion.

31.31   The Tribunal shall establish the terms of reference for any Tribunal-appointed expert report. A copy of the final terms of reference shall be sent by the Tribunal to the parties.

31.32   The Tribunal-appointed expert shall, before accepting appointment, submit to the Tribunal and to the parties a statement of his independence from the parties and the Tribunal. Within 7 days of receipt of the statement the parties shall inform the Tribunal whether they have any objections to the Tribunal-appointed expert’s independence.

31.33   Any such objection must be made in writing and filed with the Tribunal and will be taken into account by the Tribunal in deciding whether or not to make the appointment.

31.34   The Tribunal-appointed expert may request a party to provide any relevant and material information or to provide access to any relevant documents, goods, samples, property or site for inspection, examination or experiment.

31.35   If a party objects to a request made under Rule 31.34 the Tribunal shall, at the request of the Tribunal appointed-expert or the party determine the validity of the objection and may direct the party to comply with the request.

31.36   The Tribunal may give directions about any inspection, examination or experiments under Rule 31.34 which the Tribunal appointed-expert wishes to carry out.

31.37   The Tribunal appointed-expert shall record in his report any non-compliance by a party with a request under Rule 31.34 or direction by the Tribunal and shall describe its effects on the determination of the specific issue.

31.38   A party shall have the right to receive any information and to attend any inspection provided in compliance with a request made under Rule 31.34.

31.39   A party may examine any document that the Tribunal-appointed expert has examined and any correspondence between the Tribunal and the Tribunal-appointed expert.

31.40   The Tribunal-appointed expert shall report in writing to the Tribunal. The Tribunal-appointed expert shall describe in the report the method, evidence and information used in arriving at the conclusions.

31.41   The Tribunal shall send a copy of such expert report to the parties.

31.42    Within 28 days of receipt of the Tribunal-appointed expert’s report, any partymay respond to the report in a submission by the party or through an expert report. The party must serve the submission or expert report on the Tribunal, the Tribunal-appointed expert and the other parties.

31.43    Any party may use a Tribunal-appointed expert’s report as evidence at the trial.

31.44    The Tribunal may direct that the Tribunal-appointed expert attend any hearing. The Tribunal may question the Tribunal-appointed expert, and he may be  questioned by the parties.

31.45    The Tribunal may give any expert report made by a Tribunal-appointed expert and its conclusions such weight as it considers appropriate.

31.46    The Tribunal may order that any party shall be responsible for part or all of the fees and expenses of a Tribunal-appointed expert, including;

         (1)      directing any party to pay an amount into Tribunal; and

(2)      making payment to the expert on account to be revised on final
judgment.

31.47    Unless the Tribunal otherwise directs, the parties are jointly and severally liable for the payment of the Tribunal-appointed expert’s fees and expenses.

Power of Tribunal to direct a party to provide information

31.48    Where a party has access to information which is not reasonably available to the other party, the Tribunal may direct the party who has access to the
information to ­

         (1)      prepare and file a document recording the information; and

(2)      serve a copy of that document on the other party.

31.49    The document served must include sufficient details of all the facts, tests, experiments and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper  interpretation of the information and an assessment of its significance.

Contents of report

31.50   An expert’s report must comply with the requirements set out in Rules 31.51 to 31.55.

31.51   An expert’s report should be addressed to the Tribunal and not to the party from whom the expert has received his instructions.

31.52   The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

31.53   The instructions referred to in Rule 31.52 shall not be privileged against production but the Tribunal will not, in relation to those instructions ­

(1)       order production of any specific document; or

(2)       permit any questioning in Tribunal, other than by the party who
instructed the expert,

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under Rule 31.52 to be inaccurate or incomplete (or
unless the party who gave the instructions consents to it). If the Tribunal is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice to do so.

31.54   An expert’s report must:

(1)       give details of the expert’s qualifications;

(2)       give details of any literature or other material which the expert has relied on in making the report;

(3)       contain   a  statement  setting  out   the  substance of all  facts  and instructions given to the expert which are material to the opinions  expressed in the report or upon which those opinions are based;

(4)      state clearly if a stated assumption is, in the opinion of the expert witness, unreasonable or unlikely;

(5)      make clear which of the facts stated in the report are within the expert’s own direct knowledge;

(6)      say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;

(7)       where there is a range of opinion on the matters dealt with in the report
­

                  (a)     summarise the range of opinion, and

(b)     give reasons for his own opinion;

(8)       contain a summary of the conclusions reached;

(9)       if the expert is not able to give his opinion without qualification, state the qualification; and

(10)      contain a statement that the expert understands his duty to the Tribunal, and has complied and will continue to comply with that duty.

31.55   An expert’s report must be verified by a statement of truth as well as containing the statements required in Rules 31.54(9) and 31.54(10) above. The form of the statement of truth is as follows:

                  “I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.”

(Attention is drawn to Section VI of Part 29 which sets out the consequences  of verifying a document containing a false statement without an honest belief  in its truth).

Use by one party of expert’s report produced by another

31.56   Where a party has produced an expert’s report, any party may use that expert’s report as evidence at the trial.

Discussions between experts

31.57   The Tribunal will normally direct a meeting or meetings of expert witnesses (including any Tribunal-appointed expert) before trial. Sometimes it may be useful for there to be further meetings during the trial itself. The Tribunal may, at any stage, direct a discussion between experts for the purpose of requiring the experts to ­

        (1)       identify and discuss the expert issues in the proceedings; and

        (2)       decide, with the benefit of that discussion, on which expert issues they share or can come to share the same expert opinion and on which  expert issues there remains a difference of expert opinion between them (and what that difference is).

31.58    The Tribunal may specify the issues which the experts must discuss.

31.59   Subject to any directions of the Tribunal, the procedure to be adopted at a meeting of experts is a matter for the experts themselves, not the parties or their legal representatives.

31.60   Neither the parties nor their legal representatives should seek to restrict the freedom of experts to identify and acknowledge the expert issues on which they agree at, or following further consideration after, meetings of experts.

31.61    The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.

31.62    Unless the Tribunal orders otherwise, at or following any meeting the experts should prepare a joint memorandum for the Tribunal recording:

(1)      the fact that they have met and discussed the expert issues;

(2)      the issues on which they agree;

(3)      the issues on which they disagree; and

(4)      a brief summary of the reasons for their disagreement.

31.63    Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

Consequence of failure to produce expert’s report

31.64    A party who fails to produce an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the Tribunal gives permission.

Expert’s right to ask Tribunal for directions

31.65   An expert (including any Tribunal-appointed expert) may file a written request for directions to assist him in carrying out his function as an expert.

31.66    An expert must, unless the Tribunal orders otherwise, provide a copy of any proposed request for directions under Rule 31.65 ­

(1)      (if he is not a Tribunal-appointed expert) to the party instructing him,
at least 7 days before he files the request; and

(2)      to all other parties, at least 4 days before he files it.

31.67    The Tribunal, when it gives directions, may also direct that a party be served with a copy of the directions.

Trial

31.68    At trial the evidence of expert witnesses is usually taken as a block, after the evidence of witnesses of fact has been given.

II       ASSESSORS

31.69   This Section of this Part applies where the Tribunal appoints one or more expert (an `Assessor’) under Article 3 of the Tribunal Decree.

31.70   The Assessor shall assist the Tribunal in dealing with a matter in which the Assessor has skill and experience.

 Appointment of Assessor

31.71   Not less than 21 days before making any such appointment, the Tribunal will notify each party in writing of the name of the proposed Assessor, of the matter in respect of which the assistance of the Assessor will be sought and of the qualifications of the Assessor to give that assistance.

31.72   Where any person has been proposed for appointment as an Assessor, objection to him, either personally or in respect of his qualification, may be taken by any party.

31.73   Any such objection must be made in writing and filed with the Tribunal within 7 days of receipt of the notification referred to in Rule 31.71 and will be taken into account by the Tribunal in deciding whether or not to make the appointment.

31.74   Prior to commencing duties an Assessor shall take an oath or affirmation of office in accordance with these Rules.

31.75   An Assessor who has or may have a conflict concerning the subject matter of the proceedings must disclose the matters giving rise to that conflict to the Tribunal and the parties to the proceeding as soon as he becomes aware of the conflict or potential conflict.

31.76   For the purposes of this Section of this Part, an Assessor has a conflict of interest in relation to proceedings if the Assessor has any interest, pecuniary or otherwise, that could conflict with the proper performance of the Assessor’s functions in relation to the proceedings

Part to be taken in proceedings by Assessor

31.77   An Assessor shall take such part in the proceedings as the Tribunal may direct and in particular the Tribunal may ­

          (1)       direct the Assessor to prepare a report for the Tribunal on any matter at issue in the proceedings; and

(2)       direct the Assessor to attend the whole or any part of the trial to advise the Tribunal on any such matter.

31.78   If the Assessor prepares a report for the Tribunal before the trial has begun ­

(1)       the Tribunal will send a copy to each of the parties;

(2)      the parties to the proceedings shall be given an opportunity to make submissions on the Assessor’s report; and

(3)      the parties may use it at trial.

31.79   The Assessor will not give oral evidence or be open to cross-examination or questioning.

31.80   The range of topics on which advice might be sought from the Assessor should be canvassed with the parties’ legal representatives by, at the latest, the stage of final submissions

31.81   Ordinarily, the questions asked of the Assessor by the Tribunal should not stray    outside    the range previously  discussed   with  the   parties’  legal representatives.

31.82   The questions ultimately put by the Tribunal, together with the answers given by the Assessor, must be disclosed to the parties’ legal representatives before  any draft judgment is handed down.

31.83   The parties’ legal representatives will thereafter be given the opportunity to make submissions to the Tribunal, as to whether the advice given by the Assessor should be followed. Ordinarily, any such submissions should be in writing; but if there is good reason for doing so, an application may be made For an oral hearing. The Tribunal will consider any such submissions before finalising any judgment.

31.84   Generally speaking, the interests of proportionality and finality will make it unnecessary to repeat the procedure after the Tribunal and the Assessor have Had the opportunity of considering the parties’ submissions and any suggested further or revised questions. Accordingly, unless the Tribunal in its discretion thinks it appropriate to disclose them to the parties’ legal representatives before the judgment is finalised, any further or revised answers will simply be recorded in the judgment, together with the Tribunal’s decision as to whether or not to accept the Assessor’s advice and its reasons for doing so.

Remuneration of Assessors

31.85   The Registrar shall pay to any Assessor appointed under this Section of this Part a fee as set out in Schedule B to this Part for carrying out his duties and shall reimburse him for any expenses reasonably incurred.

31.86   The remuneration to be paid to the Assessor for his services shall be determined by the Tribunal and shall form part of the costs of the proceedings.

31.87   The Tribunal may order any party to deposit in the Registry a specified sum in respect of the Assessor’s fees and, where it does so, the Assessor will not be asked to act until the sum has been deposited.

  Schedule A to Part 31