Report No. 69

VII. Who Can Summon Experts

17.33. We shall now discuss the question of summoning experts. It is axiomatic that an expert, like any other person, can be produced by the party, or may be summoned through the Court by a party which desires that the expert should give evidence as its witness. The matter is governed, in general, by appropriate provisions in the two procedural Codes, and we need not go into them. However, in relation to expert witnesses, certain peculiar problems arise, which deserve consideration.

17.34. Position in the U.S.A.-

The use of a neutral expert has been widely recommended in the U.S.A. by leading authorities,1 including Wigmore,2 Morgan,3 Mc Cormick4 Learned Hand5 and others6.

1. See Impartial Medical Experiment (1960-61) 34 Temple Law Quarterly 337.

2. Wigmore Evidence, section 563.

3. Morgan Suggested Remedy for Obstruction to Expert Testimony by Rules of Evidence, (1943 10 U Chicago Law Reviews 285, 293.

4. Mc Cormick Evidence, (1954), pp. 35-38.

5. Hand Historical and Practical Considerations Regarding Expert Testimony, (1901) 15 Harv. Law Review 40, 56.

6. Prettyman Neede.- A New Trial Technique, (1940) 43 ABAJ 766.

17.35. The matter has received considerable attention in the U.S.A. The ordinary practice is that the expert called by a party is compensated by the party. The natural result is, in many cases,.-battle of experts, with the judge or jury understandably disposed to believe that each expert might have testified with equal positiveness for the other side had he been called by it.1 This unedifying aspect of criminal trials has led to provisions in some States and in tile Federal Courts, empowering the Court to call expert witnesses2. We shall refer to some of them later3.

1. Mayers The American Legal System, (1963), p. 81.

2. Mayers The American Legal System, (1963), p. 81.

3. See infra.

17.36. Position in England.-

In England there arc several provisions in force under which the Position in Eng-assistance of persons with specialised experience or knowledge can be obtained land. by the court in Civil1-2-3-4 and in Admiralty5 case. There are, also, similar provisions for criminal cases6.

1. Judicature Act, 1925, section 98 and order 36, rule 2 and rule 43, R.S.C. (Assessors).

2. See Baidwin & Francis v. Patents Tribunal, (1959) 2 All ER 433 (446) (HL).

3. Judicature Act, 1925 section 70; Order 37, R.S.C. and Order 36, rule 44, R.S.C. (Commissioners); Order 55, rule 19, R.S.C. (Certificates).

4. Section 15, Administration of Justice Act, (1956); Order 36A R.S.C. (Official Referees and Special Referees).

5. Order 75, rule 23(2) and rule 26, R.S.C. (Admiralty cases).

6. Section 9(1)(d) and (e), Criminal Appeal Act, 1907.

17.37. Provision of Order 37A, R.S.C. Considered.-

For the present purpose, the most important provisions are those contained in the Rules of the Supreme Court in England relating to "Court Experts1. The salient features of those provisions may be summarised as follows :

(i) In any case which is to be tried without a jury involving any question for an expert witness, the court may, in its discretion, at any time on the application of any party, appoint an independent expert to be called the "court expert."2

(ii) The court expert can be appointed to inquire and report upon "any question of fact or of opinion not involving questions of law or construction".3

(iii) The report of the court expert, so far as it is not accepted by all parties, shall be "treated as information furnished to the Court and shall be given such weight as the court may think fit". Copies of the report shall be forwarded to the parties.4

(iv) Any party shall be at liberty, within fourteen days after receipt of a copy of the report (or such other time as the Court may direct), to cross-examine the Court expert "on his report".5

(v) The Court expert shall, if possible, be a person agreed between the parties and failing agreement shall be nominated by the Court. Questions submitted or instructions given to him shall be settled by the parties or, failing agreement, by the Court.6

(vi) Any party shall be at liberty, after notice, to produce with regard to the question submitted to the Court Expert, one expert witness or (with the leave of the Court) two or more expert witnesses.7

1. Order 40, R.S.C. 1965 ("Court Expert").

2. Order 40, rule 1(1), R.S.C., 1965.

3. Order 40, rule 1(1), R.S.C., 1965.

4. Order 40, rule 2(3), R.S.C., 1965.

5. Order 40, rule 4, R.S.C., 1965.

6. Order 40, rule 1(2), R.S.C., 1965.

7. Order 40, rule 6, R.S.C., 1965.

17.38 and 17.39. With the object of eliminating the evils of bias and partisanship, a Model Expert Testimony Act1 has been drafted in the U.S.A. by the National Conference of Commissioners on Uniform State Laws.2 Its important provisions are given below:-

"(1)The operative provision of the Act is as follows:-

"Section 1.-Court empowered to appoint Expert witnesses.-Whenever, in a civil or criminal proceeding, issues arise upon which the Court deems expert evidence is desirable, the Court, on its own motion, or on the request of either the State or the defendant in a criminal proceeding, may appoint one or more experts, not exceeding three on each issue, to testify at the 2

(2) As regards notice to the parties, the Model Act provides-3

"Section 2.-Notice when called by Court.-The appointment of expert witnesses by the Court shall be made only after reasonable notice to the parties to the proceeding of the names and addresses of the experts proposed for appointment."

(3) Parties can appoint private experts after notice. On this point, the Act provides.4

"Section 3.-Notice when called by parties.-Unless otherwise authorised by the Court, no party shall call a witness, who has not been appointed by the court, to give expert testimony unless that party has given the court and the adverse party to the proceeding reasonable notice of the names and address of the expert to be called."

(4) Before appointing expert witnesses, the Court may seek to bring the parties to an agreement as to the experts desired, and if the parties agree, the experts so selected shall be appointed5.

(5) The Subject-matter may be inspected and examined by the experts.6

(6) The Court may require each expert which it has appointed to prepare a written report on oath upon the subject he has inspected and examined7.

(7) The Court may permit a conference and joint report by expert witnesses8.

(8) An expert witness may, under the Model Act, be asked to state his inferences based on-

(a) personal observation, or

(b) evidence introduced at the trial, seen or heard by him, or

(c) his technical knowledge,

without first specifying hypothetically in the question the data on which these inferences are based. But he may be required, in examination-in-chief or in cross-examination, to state the data on which his infedence are based9.

(9) There is a provision for the compensation of expert witnesses appointed by the Court, and also for the disclosure of fees paid by a party to a private expert10.

1. Mayers The American Legal System, (1963), p. 81.

2. Model Expert Testimony Act (1937), Uniform Law Annotated, (1957), Vol. 9A, p. 3 et seq.

3. Model Expert Testimony Act, section 1.

4. Model Expert Testimony Act, section 2.

5. Model Expert Testimony Act, section 3.

6. Model Expert Testimony Act, section 4.

7. Model Expert Testimony Act, Section 5.

8. Model Expert Testimony Act, Section 6. 2 Model Expert Testimony Act, Section 7.

9. Model Expert Testimony Act, Section 8.

10. Model Expert Testimony Act, Section 9.

17.40. The report of the American Bar Association Committee on Impartial Medical Testimony (August, 1956) records this conclusion1:

"We are satisfied from our observations of the New York and Baltimore experience that the introduction of impartial medical experts of the highest standing into those cases where the parties are in dispute as to the medical facts has the following wholesome and beneficial results:

1. It improves the process of finding the medical facts, vastly increasing the likelihood of reaching the right result.

2. It serves to relieve court congestion by bringing about the settlement of many cases which would otherwise have to be tried and which by their nature would entail lengthy trials2.

3. It has a prophylactic effect upon the formulation and presentation of medical testimony in court.

4. The modest cost involved in the payment of independent experts is a positive economy in effecting a large saving in court operation."

Rule 22 of the U.S. District Court for Eastern District of Pennsylvania3 (Impartial Medical Experts) provides as follows:

"(c) If the case proceeds to trial after such examination and report, either party may call the examining physician or physicians to testify or the trial judge may, if he deems it desirable to do so, call the examining physician or physicians as a witness or witnesses for the court, subject to questioning by any party."

1. See (1960-1961), 34 Temple Law Quarterly, 389.

2. The plan also shortens the length of trials where settlement is not achieved by securing agreement of the parties to many medical issues which are disputed prior to receipt of the report

3. (1960-61) 34 Temple Law Quarterly 389.

17.41. In 1961, the Supreme Court of Illinois adopted rule 17-2 entitled "Impartial Medical Experts", and containing this provision applying to the Illinois State trial courts:1

"When in the discretion of a trial court it appears that an impartial medical examination will materially aid in the just determination of a personal injury case, the court, a reasonable time in advance of the trial, may on its own motion or that of any party order a physical examination where a physical condition is in issue.......Should the court at any time during the trial find that compelling considerations make it advisable to have an examination and report at that time, the court may in its discretion so order.....

(a) In any personal injury, death, survival or malpractice case in which prior to the trial thereof, a judge shall be of the opinion that an examination of the injured person and a report thereon and/or testimony by an impartial medical expert or experts on the facts involved would be of material aid to the just determination of the case, he may, after consultation with counsel for the res-pective parties and after giving counsel a hearing if such hearing be requested by either counsel, order such examination report, and/or testimony. The exa-mination will be made by a member or members of a panel of examining physicians designated for their particular quaiilications by the Medical society of the State of pennsylvania after consultation with the Court. Copies of the report of the examining physicians will be made available to all parties.

(b) The compensation of the expert or experts shall be fixed at the termination of the case by the judge ordering the examination and shall be paid by the losing party, unless the court otherwise directs. Such judge may direct the deposit, by the moving party, of security which may be used for the payment of such compensation in the discretion of the Court.

1. See (1960-61) 34 Temple Law Quarterly 289 (389).

17.42. These enabling provisions permitting the court to appoint experts and obtain their Reports show the modern trends on the subject.

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