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Conclaves and concurrent expert evidence: a positive development in Australian legal practice?
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Many medical practitioners are called up to pro- vide expert evidence in court. Some medical practitioners do so frequently, such as in personal injury litigation, including claims asserting medical
negligence.
Traditional expert evidence sees testimony given
sequentially by expert witnesses for one side and then the
other, with the experts being examined and cross examined by the legal representatives for each side. The change
to pre-hearing meetings of experts (conclaves) being
convened to prepare joint reports to identify areas of
agreement and disagreement, followed by concurrent
expert evidence at trial, appears to have been driven by
judicial preference, with the underlying rationale being
the desirability of facilitating the
just, quick and cheap
resolution of the real issues in proceedings
: s 56 of the
Civil Procedure Act 2005 (NSW) and, for some matters,
Supreme Court Practice Notes (SC CL 5 and SC CL 7).
Judicial comment on concurrent expert evidence seems
almost universally favourable.
1 For example, in Halverson
v Dobler
[2006] NSWSC 1307, a medical negligence case,
after hearing concurrent evidence from medical experts
including four cardiologists (one by satellite from the
United States) and
five general practitioners, the trial
judge observed:
This process proved both highly productive and
ef
ficient and has been of great benefit to me in
resolving this case. The discussion was sustained
at a high level of objectivity by all participants,
each of whom displayed a genuine endeavour to
assist the court to resolve the problems. The fact
that ultimately they disagreed on critical issues
was not due to anything other than a genuine
difference of opinion about the appropriate
conclusion to be drawn from the known facts.
Concurrent expert evidence is currently most well
developed in the civil disputes arena, where courts are
required to determine private disputes, usually with
financial outcomes. The State Coroners Court of New
South Wales has accepted concurrent evidence for some
time, and some examples have begun to appear in criminal trials. Concurrent evidence is being increasingly
adopted in medical negligence trials.


Practical considerations

In preparation for the conclave, the parties are required to
agree on matters such as which experts should attend, the
questions to be answered, and the materials to be placed
before the experts. While the conclave may be held with or
without legal representatives, in practice it is rare for legal
representatives to be present.
Perhaps predictably with a new process, especially one
existing in the context of disputes that have resulted in
litigation, disagreements have arisen regarding logistical
matters and more substantive issues, such as which experts should meet and in what groupings. Although there
may be delays and expense associated with resolving
such disagreements in the early adoption phase, a body of
case law is now developing which will guide parties into
the future.
In most cases, the courts have expressed preference for
the experts to decide between themselves matters which
could be labelled procedural in nature, such as the format
of the meetings and secretarial support. The courts have
had somewhat more input in relation to which experts
should be present and in what groupings
mostly on a
pragmatic basis by reference to areas of comment,
2
subject to suitable expertise.3 If lawyers cannot agree
on the form of questions to be asked, the courts will also
intervene.


Expert witness immunity and conclaves

Expert witnesses in Australia appear to remain immune
from civil suit in respect of what is said or done in court,
and in preparatory steps, as stated by the High Court in
DOrta Ekenaike v Victoria Legal Aid [2005] HCA 12. The
application of the expert witness immunity rule to expert
witnesses participating in conclaves of experts was
af
firmed by the NSW Court of Appeal in Young v Hones
[2014] NSWCA 337.

There is perhaps some potential for expert witness immunity to be revisited in a matter presently before the
High Court for hearing in 2016,
Attwells v Jackson Lalic
Lawyers Pty Limited
. It was revisited in the United
Kingdom in
Jones v Kaney [2011] UKSC 13, where a majority of the Supreme Court held that a retained expert
witness was not entitled to the bene
fit of immunity from
actions brought by his or her own clients for professional
negligence. However, even if the High Court does not
modify the current immunity law, where an expert purports to give expert evidence beyond his or her area of
competence, he or she may be vulnerable to disciplinary
proceedings.


Advantages and disadvantages

The use of conclaves and concurrent expert evidence has
the potential to advance the objective of the just, quick and
cheap resolution of the real issues in the proceedings
before a court. Further, the ef
ficient and effective management of expert evidence has an important role to play
in enabling the parties to engage meaningfully in alternate dispute resolution as evidence emerges before a
final
hearing.
Despite these advantages, there has been anecdotal
concern expressed that fairness and integrity in the trial
process might be compromised by widespread adoption
and implementation of the concurrent expert evidence
process. For example, unless experts are required to give
reasons for their conclusions, the interests of open and
transparent justice may be compromised. Most
commonly expressed concerns include fears that experts
will simplify their analysis of complex evidence to enable
lawyers and judges to understand it and to meet time
constraints, and that dominant experts will overshadow
others such that not all opinions will be fully heard and
taken into account.
5
However, it should be noted that conclaves lack transparency unless experts are required to give reasons for
their conclusions.
The balance of opinions from judges, lawyers and expert
witnesses favours conclaves and concurrent evidence as a
positive development in Australian legal practice, at least
for civil disputes. While only positives seem to
flow from
concurrent evidence at trial, it is arguably too soon to tell
whether the relative lack of transparency at the conclave
stage will give rise to dif
ficulties in the coronial, disciplinary and criminal arenas.

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