1. Under the new Rules of Court 2021 (“ROC 2021”), no expert evidence may be used in Court unless the Court approves.(1) Parties are to inform the Court during the case conference if they intend to rely on expert evidence.(2)
2. Parties must consider whether expert evidence will contribute materially to the determination of any issue that relates to scientific, technical or other specialised knowledge and whether such issue can be resolved by an agreed statement of facts or by submissions based on mutually agreed materials.(3)
3. Unless the expert evidence will contribute materially to the determination of any issue in the case and the issue cannot be resolved as stated above, the Court must not approve the use of expert evidence.(4) If the Court is of the opinion that the expert lacks the requisite specialised knowledge in the issues referred to him or her or that he or her lacks impartiality, the Court may disallow the use of or reject any expert evidence.(5)
4. An expert is a person with scientific, technical or other specialised knowledge based on training, study or experience.(6) The expert has the duty to assist the Court in the matters within his or her expertise and on the issues referred to him or her.(7) The expert’s duty to the Court overrides any obligation to the person from whom the expert receives instructions or by whom he or she is paid.(8)
5. Parties will be required to consider and, as far as possible, agree on one common expert.(9) The objective is to save time and costs. Except in a special case and with the Court’s approval, a party may not rely on expert evidence from more than one expert for any issue.(10)
6. In a special case, the Court may appoint a court expert in addition to or in place of the parties’ common expert or all the experts.(11)
7. The parties are required to agree on the list of issues to be referred for expert evidence, and the common set of agreed or assumed facts that the experts are to rely on.(12) The issues must be expressed, as far as possible, in the form of questions which can be answered with “yes” or “no”.(13) The Court will approve the list of issues and common set of agreed or assumed facts, and unless otherwise ordered, the expert evidence must be confined to those approved issues and must rely on the common set of agreed or assumed facts only.(14) Where there is no agreement, the Court must decide the list of issues and the common set of agreed or assumed facts.(15)
8. Parties, their solicitors and the experts, may be ordered by the Court to meet before, during or after the making of the expert reports to try to narrow any dispute and so that the parties can agree in writing on all or some of the conclusions on the issues referred to the experts.(16) Aside from the contents of any agreement in writing, the contents of such discussions must not be used in Court unless agreed by the parties.(17)
9. Where parties wish to adduce expert evidence, parties will be asked to fill in an expert witness template prior to the Registrar’s Case Conference where the issue of expert evidence is to be discussed.(18) The template is to facilitate the parties’ discussion of issues relating to the use of expert evidence with the Court. In particular, the template sets out general background information on the proposed expert(s), the list of issues to be referred to the proposed expert(s) and the facts or assumed facts which the proposed expert(s) will rely on and the anticipated timelines.(19)
10. Parties will be encouraged to come to a view on what the issues are and the common set of agreed or assumed facts. It is anticipated that there may be 2 to 3 Case Conferences to assist parties to come to an agreement on these issues.
11. The expert’s report, which is to be signed by the expert and exhibited in an affidavit made by the expert(20), must include the following(21):
(a) the expert’s qualifications showing that he or she has the requisite specialised knowledge on the issues referred to him or her;
(b) the expert’s statement that he or she understands his or her duty is to assist the Court in the matters within his or her expertise and on the issues referred to him or her and that such duty to the Court overrides any obligation to the person from whom he or she receives instructions or by whom he or she is paid;
(c) the issues referred to the expert and the common set of agreed or assumed facts that he or she relied on;
(d) a list of the materials that the expert relied on and including only extracts of the materials which are necessary to understand the report;
(e) where the materials include tests, experiments or the collection or analysis of data, the names and qualifications of the persons who did the tests, experiments or the collection or analysis of data and whether they did so under the expert’s supervision or guidance;
(f) where there is a range of opinion on the matters dealt with in the report —
(i) a summary of the range of opinion; and
(ii) the reasons for the expert’s opinion;
(g) a statement of belief of correctness of the expert’s opinion;
(h) the conclusions reached on the issues referred to the expert and the reasons to support the conclusions.
12. With the Court’s approval, parties may request in writing that an expert clarify his or her report in any aspect.(22) The expert must give the clarification in writing within the time specified by the Court and such clarification is deemed to be part of the report.(23)
13. Parties must consider whether the experts need to be cross-examined in Court.(24)
14. Where there is more than one expert, the Court may order that all or some of the experts testify as a panel (the “Panel”).(25) The Panel may testify before or after all or some of the non-expert witnesses have testified.(26)
15. The Court may:
(a) order that the Panel give their views on the issues referred to them and comment on one another’s views(27);
(b) order cross-examination and re-examination of all or some of the experts in the panel in any sequence as the Court thinks appropriate, whether before or after the testifying by the Panel(28);
(c) give any other directions as are appropriate for the particular case(29).
*This Digest highlights certain key features and points of note, which are intended to assist court users in navigating the Rules of Court 2021 (“ROC 2021”), and serves to provide general information only. Reference should always be made to the relevant provisions in the ROC 2021, any applicable written law and practice directions, and any applicable guidance that may be found in case law. This, and the other digests, do not, in any way, affect the Court’s exercise of its discretion. The Court may, based on the circumstances of each case, depart from the digests. The digests are not intended to be, and should not be construed as, legal advice, and may be revised from time to time.
(1) O 12 r 2(1) of ROC 2021.
(2) O 9 r 21(1) of ROC 2021.
(3) O 12 r 2(2) of ROC 2021.
(4) O 12 r 12(3) of ROC 2021.
(5) O 12 r 2(4) of ROC 2021.
(6) O 12 r 1(1) of ROC 2021.
(7) O 12 r 1(2) of ROC 2021.
(8) O 12 r 1(3) of ROC 2021.
(9) O 12 r 3(1) of ROC 2021. Please note that the requirements under O 12 rr 3(1) to (4) do not apply to any proceedings before a Magistrate’s Court or District Court where any question requiring the evidence of an expert evidence arises in a case which the Court has directed to be set down for a simplified trial (see O 12 r 3(5) of ROC 2021 for further details).
(10) O 12 r 3(2) of ROC 2021.
(11) O 12 r 3(3) of ROC 2021.
(12) O 12 r 4(1) of ROC 2021.
(13) O 12 r 4(4) of ROC 2021.
(14) O 12 r 4(2) of ROC 2021.
(15) O 12 r 4(3) of ROC 2021.
(16) O 12 r 6(1) of ROC 2021.
(17) O 12 r 6(2) of ROC 2021.
(18) Please refer to Annex B of Digest 2A “How will case management for matters in the General Division of the High Court be different?” for a copy of the expert witness template.
(19) Further details will be set out in the Supreme Court Practice Directions.
(20) O 12 r 5(1) of ROC 2021.
(21) O 12 r 5(2) of ROC 2021.
(22) O 12 r 6(3) of ROC 2021.
(23) O 12 r 6(4) of ROC 2021.
(24) O 12 r 6(5) of ROC 2021.
(25) O 12 r 7(1) of ROC 2021.
(26) O 12 r 7(2) of ROC 2021. Please note that in the event the defendant’s expert testifies as a panel before the defendant or any of the defendant’s non-expert witnesses has testified, the defendant is not deemed to have waived his or her right to submit that there is no case for him or her to answer at that stage of the hearing (O 12 r 7(3) of ROC 2021).
(27) O 12 r 7(4) of ROC 2021.
(28) O 12 r 7(5) of ROC 2021.
(29) O 12 r 7(6) of ROC 2021.