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Association of Consulting Forensic Engineers. Guidelines for Court Reports.
January 2000

1. Introduction

1.1
The Role of an Engineer as Expert Witness.

1.2
The Role of an Expert Witness is to give fair and objective evidence on matters within his expertise to assist the Court.
The principal and overriding duty of an Expert Witness is not to the party by whom he is retained but to the Court.

1.3
An Expert Witness is primarily called to give Opinion evidence and not simply for a factual description of the matters relevant to the issue. However it is normally necessary to present such evidence to explain and/or justify the conclusion and opinion and thus both form the substance of the evidence.

1.4
An Expert Witness may be cross examined on the evidence presented, instructions and any matters considered relevant by the other parties.

1.5
In these Guidelines a distinction is drawn between an Engineer acting in an advisory capacity to Client (Advice) and an Engineer preparing and giving evidence for the purpose of Court proceedings (Court Report).
In giving advice an Engineer owes a duty to the Client, in his Court Report the Engineer's overriding duty is to the Court.

2. Definitions

For the purpose of the Guidelines the following definitions apply:

2.1
"Preliminary Report" - Report (s) prepared before the pleadings are complete.

2.2
"Court Report" - Report (s) prepared for exchange between the parties.

2.3
"Supplemental Preliminary or (Court) Report" - Report (s) prepared after the Preliminary or Court Report as a result of new information, pleadings, clarification of instructions etc.

2.4
"Review Report" - Report (s) on the Report of another Expert Witness exchanged under the Rules.

2.5
"Advice" - document giving opinion on Liability and/or other issues outside the role of an Expert witness.

3. The New Rules SI 391 of 1998

3.1
The new 1998 Rules require the exchange of Court Reports prepared by Expert Witnesses prior to the hearing. They apply only to High Court cases where proceedings issued on or after 1 September 1997 and to Court Reports written after that date.

3.2
SI 391 of 1998 inserts Rules 45 to 51 in Order 39 of the Rules of the Superior Court.

Under Rule 45 (1) (e) "Report" means a report or reports or statement from engineers intended to be called to give evidence in relation to an issue in an action and containing the substance of the evidence to be adduced and shall also include any maps, drawings, photographs, graphs, charts, calculations or other like matters …"

3.3
The Rules imply that if an Engineer produces a Review Report this will be exchanged.

4. The Court Report

4.1
A Court Report is a written statement of the instructions, pleading investigations, observations and opinion of the Engineer on the Issue. It includes Test procedures and results, calculations, photographs, sketches, Technical Publication References, computer software and other matters on which the Engineer may rely on in evidence.

4.2
A Court Report should address the range of opinion on the issue and the basis for the Engineers particular opinion. It should also address issues that are likely to arise in cross-examination in the context of the case pleaded.

4.3
A Court Report can be broken down into four broad areas:

4.3.1 Instructions & Pleadings

This will normally include a narrative of the circumstances as given by the instructing party, established at an inspection, and as set out in pleadings briefed when the report is prepared. It may include relevant pre-issue history of the parties. It may include a summary of the issues in the pleadings which the report addresses.

4.3.2 Investigation & Observations

This deals with the findings of the Engineer that arise from Investigation. It will include a description of the physical and technical characteristics of the issue and may be illustrated by photographs, sketches etc. It will describe Test Procedures carried out and results obtained, show calculations, Technical Publications, computer software and other references.

4.3.3 Discussion & Opinion

The Engineer will set out conclusions on the Technical matters, discuss the range of opinion on the issue and set out the basis for the opinion expressed. It may also refer to statutory provisions which the Engineer believes to be relevant to the issue.

5. The Review Report

A Review Report should be prepared on the same basis as a Court Report and include any new matters that arise from the exchanged Court Report.

6. Changes to Reports

6.1
Simple errors and omissions should be corrected in accordance with instructions. When a report is corrected it should be identified as a revision with new date.

6.2
Changes material to the substance of the Report should be by Supplemental Report which must clarify the basis for the changes. Changes which are not material to the substance of the Report may be best dealt with by attaching clarifying correspondence to the Report.

6.3
An Engineer must not permit an Instructing Party (or others) to alter the text of a report.

7. Advice to Instructing Party

7.1
Advice must be in a separate document from a Report and such documents should be clearly indicated as Advice. It is suggested that they be marked with a phrase "Advice - Not For Exchange" or similar.

8. Confidentially & Intellectual Property Reports

8.1
Unless agreed in writing all rights of ownership in written reports, photographs, recordings, calculations and other original work created by an Engineer remain vested in the Engineer.

8.2
An Instructing Party must not use or allow others to use an Engineer's report for any other purpose other than Litigation in the matter on which the Instructing Party has sought the Engineers advice and services.

RECENT DEVELOPMENTS

In the Supreme Court Decision in Shovlin .v. Payne – (click here) the Association understands that the Supreme Court ruled that all reports prepared by an expert medical witness must be exchanged.

The Association understands that this means that all correspondence, letters etc are liable to be exchanged and has advised members to no longer mark letters of Advice etc “Not for Exchange”.

Association of Consulting Forensic Engineers. Guidelines for Joint Inspections.
January 2000

Preamble

The purpose of these Guidelines is to outline the manner in which joint inspections should be carried out. The joint Inspection is one of the most important meetings between the parties.

2. Definitions

For the purpose of the Guidelines the "Plaintiff" is the Party applying for inspection facilities and the "Defendant" is the Party granting inspection facilities.

3. Application

These Guidelines relate to joint inspections carried out with another member of the Association or similarly qualified independent expert for the purposes of preparing a report and giving evidence in a Court.

4. Purpose of Joint Inspection

4.1
The purpose of a joint inspection is to establish the facts of the issue on which the Engineers investigating the issue can prepare their reports and express their opinion on technical matters associated with the issue.

4.2
A joint inspection should not be used to test the credibility of any party and should not be used to engage in the cross-examination of witnesses or parties. All enquiries shall be conducted through the Engineers.

5. Arrangements for Inspection

5.1
It is not appropriate for an Engineer to enter onto private property of a party to the proceedings without the express consent and agreement of the occupier of that property.

5.2
Arrangements for joint inspections are to be made between the two members involved.

5.3
The Defendants Engineer will make the necessary arrangements for access to the premises or locus with the occupier at a reasonable time convenient to all parties and subject to the provisions of a Court Order or other directions.

6. Conduct of Investigation

6.1
The Plaintiff through the Engineer will identify the location, equipment and other materials relevant to the issue.

6.2
The Plaintiff, through his Engineer will give a description of the circumstances of the issue so as to allow both Engineers prepare the necessary reports.

6.3
Both Engineers may raise questions on the circumstances and procedures relevant to the issue and these should be dealt with as best as possible. In the event that an Engineer is instructed not to reveal information this should be noted.

6.4
The inspection shall be confined to the location, equipment and materials identified by the Plaintiff. In situations where the Plaintiff's Engineer requires additional facilities he shall state his reasons.

6.5
Factual information will be established jointly with any conflict noted.

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