ORDER
40A
EXPERTS OF PARTIES
Limitation of expert evidence (O. 40A, r. 1)
1.
—(1)
The
Court may, at or before the trial of any action, by order limit
the number of expert witnesses who may be called at the trial to
such number as it may specify.
(2)
A reference to an “expert” in
this Order is a reference to an expert who has been instructed to
give or prepare evidence for the purpose of court proceedings.
Expert’s duty to the Court (O. 40A, r. 2)
2.
—(1)
It
is the duty of an expert to assist the Court on the matters within
his expertise.
(2)
This duty overrides any obligation
to the person from whom he has received instructions or by whom
he is paid.
Requirements of expert’s evidence (O. 40A,
r. 3)
3.
—(1)
Unless
the Court otherwise directs, expert evidence is to be given in
a written report signed by the expert and exhibited in an affidavit
sworn to or affirmed by him testifying that the report exhibited
is his and that he accepts full responsibility for the report.
(2)
An expert’s report must —(a)
give details of the expert’s
qualifications;
(b)
give details of any literature or
other material which the expert witness has relied on in making
the report;
(c)
contain a statement setting out the
issues which he has been asked to consider and the basis upon which
the evidence was given;
(d)
if applicable, state the name and
qualifications of the person who carried out any test or experiment
which the expert has used for the report and whether or not such
test or experiment has been carried out under the expert's
supervision;
(e)
where there is a range of opinion
on the matters dealt with in the report —(i)
summarise the range of opinion; and
(ii)
give reasons for his opinion;
(f)
contain a summary of the conclusions
reached;
(g)
contain a statement of belief of correctness
of the expert’s opinion; and
(h)
contain a statement that the expert
understands that in giving his report, his duty is to the Court
and that he complies with that duty.
Written questions to expert (O. 40A, r. 4)
4.
—(1)
A
party may with the leave of the Court put to an expert instructed
by another party written questions about his report.
(2)
An application for leave to put questions
to an expert about his report must be made within 14 days of service
of the expert’s affidavit exhibiting his report, or such longer
period as the Court may allow.
(3)
Written questions under paragraph
(1) must be for the purpose only of clarification of the report.
(4)
An expert’s answers to written
questions put to him under paragraph (1) shall be in writing and
provided within such time as the Court may direct and shall be treated
as part of the expert’s report.
(5)
Where a party has put a question to
an expert instructed by another party in accordance with this Rule
and the expert does not answer the question or does not, in the
opinion of the Court, answer the question adequately within the
time provided, the Court may make such order as it thinks just,
including all or any of the following:(a)
that the party who instructed the
expert may not rely on the evidence of that expert;
(b)
that the party who instructed the
expert may not recover the costs of that expert from any other party;
or
(c)
that the expert is to answer or (as
the case may be) provide a further and better answer to the question.
Discussions between experts (O. 40A, r. 5)
5.
—(1)
The
Court may, at any stage, direct a discussion between experts for
the purpose of requiring them to —(a)
identify the issues in the proceedings;
and
(b)
where possible, reach agreement on
an issue.
(2)
The Court may specify the issues which
the experts must discuss.
(3)
The Court may direct that following
a discussion between the experts, they must prepare a statement
for the Court showing —(a)
those issues on which they agree;
and
(b)
those issues on which they disagree
and a summary of their reasons for disagreeing.
(4)
The contents of the discussions between
the experts shall not be referred to at the trial unless the parties
agree.
(5)
Where the 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.