If you find yourself in proceedings in a court or a tribunal such as the NSW Civil and Administrative Tribunal (NCAT), you may need to obtain an expert report. This is common in building or construction related matters. There is a range of different types of expert reports such as building defect reports and forensic accountancy reports. This article explains what you need to consider when engaging an expert and preparing an expert report.

Getting the Right Expert

Often one of the hardest parts of obtaining an expert report is finding the right expert. However, this is critical because the outcome of a case will often depend on the strength of the expert evidence, particularly if it is a technical matter. If you are bringing a claim against a builder for poor workmanship, it is important that you engage a building or defects consultant who has experience in similar types of matters. For example, if the main issues concern the tiler engaged by the builder, then you should have an expert with knowledge of tiling defects as opposed to a more generalist building consultant.

In the expert report, the expert should include a section up the front which sets out their experience, qualifications and licences that are relevant to your dispute. It can be handy to have the expert list the proceedings that they have given expert evidence in previously.

Code of Conduct

An expert report will only be allowed in NCAT or court if the expert complies with the relevant rules or code of conduct. In NCAT, the expert will need to comply with the Expert Evidence Procedural Direction. In court, they will need to adhere to the Expert Witness Code of Conduct. These documents set out various requirements for experts when preparing and presenting their report. These might include an acknowledgement that their primary duty is to the court or NCAT and not to you.

Independence and Impartiality

The expert should write their report in a formal and professional way. It is important for the expert to present their report from an independent viewpoint and not as an advocate for you. It is not uncommon for experts to feel obliged or pressured to say things to please the party engaging them when preparing the report. There is an obvious incentive for an expert to be partial, as they are being paid by you. However, an expert report will likely be more persuasive for a judge or tribunal member if it comes across as being impartial and independent. This may mean the expert includes some opinions that are not completely favourable to you.

Relationship to You

The expert will also need to clearly explain any relationship that they may have or had with you in the past. For instance, you should include in the report if the building consultant has sold materials to you in any other projects.

Engaging an Expert and Your Instructions

One of the most important considerations when engaging an expert is determining the questions that you will ask them. These are known as instructions. An experienced lawyer can be useful to help you draft these questions. The lawyer can help ensure the expert covers all of the important issues that are relevant to their expertise. When briefing an expert, it is essential to provide them with a detailed background to the dispute so they can provide an informed opinion.

It is also very important that you correspond with your expert through your lawyer. If it comes through your lawyer, the court will likely consider this information privileged. Therefore, the other side will not be able to access it.

Assumptions

There is nothing wrong with an expert making assumptions in their report based on the information you provide them. For instance, you might instruct an expert that the owner of a house with defective tiling instructed the tiler to lay tiles in a particular way. The court allows the expert to rely on this assumption. However, it is extremely important for the expert to make clear that they are relying on an assumption.

For example, the expert may say in the report “I have been informed by Ms Jones that the owner of the house, Mr Johns, instructed the tiler to lay the tiles at an angle, sloping towards the far left corner of the bathroom. On the basis of this assumption, I find …”  This will help limit the potential for the other side to argue that the expert’s opinion is not independent.

Key Takeaways

Remember, when engaging an expert and preparing an expert report, it is important:

  1. to get the right expert. The expert should be considered an expert in the field that they are providing an opinion on;
  2. that the expert complies with the relevant code of conduct;
  3. that the expert provides an independent opinion and should not be swayed by you;
  4. to spend time ensuring that your instructions to the expert are drafted to ensure that the expert addresses the key issues in the proceedings; and
  5. make sure all correspondence goes through your lawyer to the expert.

If you need help briefing an expert or reviewing expert reports, you can contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.

Robert Nay
If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.
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