EXPERT EVIDENCE AND ADVERSARIAL COMPROMISE

• Citation: (2015) 27 SAcLJ 55
• Published date: 01 December 2015
• Date: 01 December 2015

A Re-Consideration of the Expert's Role and Proposals for Reform

The practice governing the adduction and presentation of expert evidence has come under increasing scrutiny in recent years. Bias, untruthfulness, disproportionate and excessive costs, party manipulation, delays and obfuscation of issues are some of the problems which the courts and litigants have had to endure as a consequence of the adversarial nature of civil proceedings. The purpose of this article is to examine these concerns and propose measures which would improve the legal infrastructure. In particular, more extensive judicial involvement in controlling the use of expert evidence through comprehensive pre-trial case management and at trial is advocated. It is also proposed that experts should be jointly instructed by the parties unless the circumstances of the case require the parties to appoint their own experts. This scheme would be complimented by a more enhanced role for the “court expert”, whose appointment would not depend on the consensus of the parties. Further, it will be shown that the legal admissibility of expert evidence is not the only criterion for its reception. Ultimately, the court must exercise its discretion in determining whether expert evidence (whatever form it takes) is justified by the circumstances of the case (primarily, the principle of proportionality must be adhered to). The proposals are summarised in the final two paragraphs of this article.

I. Introduction

1 The aims of this article are to examine the legal infrastructure governing expert testimony, to identify the challenges it poses to interests of the administration of justice and, consequently, to propose measures for reform. It will be seen that there are three main categories of persons who may give evidence in areas requiring special knowledge: an expert witness appointed by a party (a “party's expert”), an expert witness appointed by the court (a “court expert”), and an assessor (who, although not a witness, assists the court in specific types of cases). The approach here will be to analyse the issues raised by the testimony of a party's expert and the role of the court expert, to consider the current legislative framework and the state of practice in the courts (including a review of the relationship between the evidential provisions in the recently amended s 47 of the Evidence Act1 (“EA”) and the rules of procedure), and to evaluate possible reforms. Particular consideration will be given to the introduction of an expert who is jointly instructed by the parties (a “jointly-instructed expert”), an enhanced role for the court expert, and a more comprehensive system of pre-trial case management in order to enhance the court's ability to thoroughly review the need for expert testimony, the type of expert who should be appointed (if any), and the directions to be given. Developments in some other leading common law jurisdictions which have revised the traditional adversarial model will also be considered.

II. Issues raised by modern expert testimony

2 One might assume that persons who are professionally or experientially qualified to express an accurate opinion concerning a matter within the scope of their common expertise are unlikely to differ substantially (if at all) in their conclusions on a matter of established knowledge. Yet, the reality in practice is that most cases involving expert evidence (very possibly the majority) are characterised by irreconcilable differences between the expert witnesses, whose opinions invariably support the interests of the parties who call them. In Vita Health Laboratories Pte Ltd v Pang Seng Meng2 (“Vita Health”),3 V K Rajah JC (as he then was) agreed with the following proposition:4

… in many respects the incentives for experts to favour one party contrary to their actual belief are substantial. First, expert witnesses are paid for their evidence. Secondly, they may be retained on a regular basis by a particular client or group of clients in different cases. Thirdly the expert may hope to gain favour with a client generally, perhaps because he hopes that non-legal professional engagements may be forthcoming or continue.

His Honour added that “[b]ias could also include any perceived partiality or inclination to make suppositions or assumptions in favour of an instructing party”.5 Additionally, an expert is not uncommonly selected because his views on an area of knowledge are already known

and, consequently, would advance the party's case. This mode of selection has the potential to compromise the interests of justice to the extent that it may solicit polarised views and avoid more objective opinions. Often, a “market-place” mentality prevails. The following account by Sir George Jessel MR in Thorn v Worthing Skating Rink Co6 illustrates the difficulties:

… the mode in which expert evidence is obtained is such as not to give the fair result of scientific opinion to the Court. A man may go, and does sometimes, to half-a dozen experts. I have known it in cases of valuation within my own experience at the Bar. He takes their honest opinions, he finds three in his favour and three against him; he says to the three in his favour, Will you be kind enough to give evidence? [A]nd he pays the three against him their fees and leaves them alone; the other side does the same. It may not be three out of six, it may be three out of fifty. I was told in one case, where a person wanted a certain thing done, that they went to sixty-eight people before they found one. I was told that by the solicitor in the cause. That is an extreme case no doubt, but it may be done, and therefore I have always the greatest possible distrust of scientific evidence of this kind, not only because it is universally contradictory, and the mode of its selection makes it necessarily contradictory, but because I know of the way in which it is obtained. I am sorry to say the result is that the Court does not get that assistance from the experts which, if they were unbiased and fairly chosen, it would have a right to expect.

3 Although these views were expressed in the 19th century, they reflect modern practice as well. Parties often call experts (and frequently compete for the very best of them, if expense is not an issue) primarily to bolster their respective cases with a view to a favourable judgment. In most instances, the expert may be characterised as a “weapon” engaged by the party as a combatant in the adversarial arena rather than as a witness whose fundamental duty is to assist the court.7 Yet, the original purpose of expert testimony was simply to objectively assist the court in deciding issues beyond its knowledge regardless of the positions taken by the parties.8

4 The role of the expert has prompted unfavourable observations by the courts in a series of cases during the last ten years, despite the introduction of O 40A of the Rules of Court9 (“ROC”) in 2000.10 For example, in Vita Health,11 V K Rajah JC (as he then was) remarked: “An expert … should not evolve into a spokesperson for his client.”12 In the same vein, his Honour observed in Pacific Recreation Pte Ltd v S Y Technology Inc: “The expert should neither attempt nor be seen to be an advocate of or for a party's cause. If he appears to do this, he will inexorably lose his credibility. … In essence, his advocacy is limited to supporting his independent views and not his client's cause.”13 The same sentiment was expressed by Sir George Jessel MR more than a century ago: “Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them.”14 The Court of Appeal resignedly acknowledged the tendency towards bias in JSI Shipping (S) Pte Ltd v Teofoongwonglcloong15 (“JSI Shipping”): “… a certain degree of partisan advocacy may be an inevitable consequence of adducing expert evidence in the gladiatorial context of an adversarial system” [emphasis added]. The observation of the High Court Judge concerning an expert witness in Gimpex Ltd v Unity Holding Business Ltd16 was as follows: “… I found [the expert] to be overly biased … in complete disregard of the duties of an expert under O 40A of the Rules.” In Khoo Bee Keong v Ang Chun Hong,17 Andrew Phang JC (as he then was) commented on certain judicial statements declaring the expert's responsibilities to the court as follows: “… one cannot be faulted for [taking such statements] with the proverbial pinch of salt, especially when one views [them] through the lenses of practical reality”.18 Put another way, exhortations by the judge (and even legislation) may not always have the desired result given the compelling force of human nature. Reflecting on the need for litigants to adopt the proper mindset towards their expert witnesses, his Honour stated: “The real and effective solution to the difficulties centring on the alleged bias of experts probably lies in the sphere of the extra-legal and this, in itself,

reflects, once again, the almost natural intractability that especially characterises the law relating to expert evidence.”19 More recently, the Court of Appeal reiterated these observations20 and acknowledged that “the area of expert evidence generally is in need of re-examination”.21

5 Quite apart from the problem of bias, there is also the pressing concern in modern litigation about disproportionately high costs which are usually incurred in the preparation and presentation of expert testimony, often in circumstances when it is not justified by the resources needed for this purpose. Expert evidence may also have the effect of unnecessarily complicating the issues before the court so that it is counter-productive rather than helpful to the adjudicative process.22

And, as...