Application for leave for expert to depart from opinion expressed in joint report – Rule 30(3) Planning and Environment Court Rules 2010

Facts: This was an application by which the Co-Respondent sought leave for its waste water disposal expert to provide additional evidence which departed from opinions expressed in earlier joint reports. Leave was required pursuant to R.30(3) of the Planning and Environment Court Rules 2010.

A previous joint report had reached agreement about the suitability of proposed effluent disposal arrangements. In a further joint report the Co-Respondent's expert foreshadowed that he wished to depart from opinions expressed in the earlier joint report, and to raise concerns similar to those which he had raised at the outset, but in respect of which he had been satisfied at the time of the joint report. In order to analyse his concerns, he undertook further modelling which, he said, showed that there were difficulties with the proposal. When that matter had been raised, there had been interruption to the trial, and a few days where no evidence could be taken.

Decision: The Court held, in granting leave, that:

  1. The general prohibition on an expert departing from a position in a joint report, save by leave, served a number of purposes.
  2. One of those purposes was to make sure that the experts treat the joint report process with appropriate respect, and properly prepare, and properly participate fully rather than simply regarding it as a preliminary step which they can easily depart from later on.
  3. Another purpose is to guard against the prospect of experts easily departing from opinions reached in a joint report should they be subsequently prevailed upon by their clients or others to do so.
  4. A further objective is to ensure the preparation for trial can proceed on the basis of some certainty as to what the expressed views are, such that surprises are unlikely or at least are minimised.
  5. The requirement to obtain leave also ensures that any departure is accompanied by some explanation of the circumstances and the reasons for the departure.
  6. In this case there was no suggestion that the expert had been prevailed upon by the lawyers. The explanation was somewhat thin. However, the Court was inclined at this stage to accept that it was genuine. If the Co-Respondent's expert was to give evidence, he should be able to give evidence of what his current views are.
  7. It was both within the jurisdiction of the Court, and appropriate, for there to be an Order in relation to costs of this application.
  8. In terms of the costs thrown away by the grant of leave, such an Order should be made, but there was no purpose in making it now, because the Court could not decide on the basis of it. The Court would have been prepared to make an Order on the standard basis, but the Appellant wished to push for indemnity costs, and the Court was not minded to make that decision until and unless it heard the evidence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.