Criminal Justice Process in Malaysia

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  • Topic: Expert witness, Civil procedure, Expert
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  • Published : April 2, 2011
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witnesses and their practice, and to provide an update on some of the issues set out in the second edition of the Guide. 1.4 As before, the purpose is simply to provide a digest and Experts will still need to understand the CPR and the legal principles set out in this Addendum. However, it is hoped that the Addendum will serve as a useful update with regard to relevant issues and a convenient starting point for more detailed consideration.

2. 2.1

Expert Immunity Expert immunity is mentioned in section 7.2 of the Guide and the general principle is that expert witnesses are immune from civil claims. This is a well established principle aimed at ensuring that experts give evidence freely and independently.

2.2

The position is less clear following a few recent decisions. In Philips v Symes [2004] EWHC 2330 the court found not only that an Expert could be joined as a respondent, but that he could also be made liable for a party's costs if he has acted "recklessly or in flagrant disregard of his duties to the court".

2.3

In the highly publicised case of General Medical Council v Meadow [2006] EWCA Civ 1390, the Court of Appeal overturned the High Court's decision to extend the immunity from suit to disciplinary proceedings. As a result, Experts may be vulnerable to disciplinary proceedings if it can be shown that their evidence in court demonstrates they are not fit to practice in a particular discipline.

2.4

Overall, this emphasises the need to ensure that great care is taken and the highest standards are observed in giving evidence. When giving evidence an Expert must bear this in mind. Any issues should be discussed with the legal representatives as appropriate. The Expert's duties to the client and the Court are set out in section 7 of the Guide.

3. 3.1

Legal Privilege The issues concerning legal privilege are set out in various sections of the Guide. Section 4.3 of the Guide deals with privilege and disclosure and section 6.3 of the Guide highlights the privilege which may attach to an Expert's report when the Expert is instructed as an adviser. In addition, Section 8.4.5 of the Guide deals with legal privilege with regard to discussions and meetings with an Expert.

3.2

The law has not changed in this regard, but a few recent decisions provide useful guidance as to the practical application of the general principles.

Expert evidence - A guide for expert witnesses and their clients (Second edition) – Addendum, June 2009 The Institution of Structural Engineers

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3.3

In Gary Beck v Ministry of Defence [2003] EWCA Civ 1043 the Court of Appeal held that where the court's permission is needed to instruct a new Expert, such permission will only be granted if the first Expert's report is disclosed to the other side.

3.4

The same principle was upheld more recently by the Court of Appeal in Nicos Varnavas Hajigeorgiou v Vassos Michael Vasilou [2005] EWCA Civ 236. The Court of Appeal confirmed that an Expert report is protected by legal privilege but that a condition of permission to change Experts may be a waiver of such privilege, and such disclosure may extend to draft reports.

3.5

This is in order to prevent "expert shopping", and while it will only apply when the court's permission is needed, the decision highlights the need for parties to consider carefully the terms of any Expert's appointment. It is not in every case that a party will be ordered to disclose an earlier Expert report but this issue needs to be borne in mind whenever an Expert is to be replaced.

3.6

Another issue dealt with by the court following publication of the Guide is the disclosure of early drafts of a report. In Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225, the Court of Appeal confirmed that earlier drafts of an Expert's report are protected by privilege and cannot be disclosed. This provides some comfort to Experts and the freedom to discuss issues freely. However, to...
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