Whilst courts are empowered to exclude prejudiced expert reports, parties may nonetheless advise experts on proper reporting practices and case theories. We examine comments by Justice Riordan on admissible lawyer-expert communications.

Background

In Finance & Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling) [2019] VSC 665, the beneficiaries of a Trust brought claims against its trustees (Auswild) for alleged breaches of its fiduciary duties to act bona fide and in the interests of trust shares.

The Plaintiffs alleged that Mr Ronald Auswild and his son, who were directors of the Preston Motor Group, in which the Trust held most of its shares, acted from 1985 to 2006 such that the transactions they entered into benefitted the portions of the company owned separately by the Defendant instead of, and above, the portion that constituted the Trust.

The Plaintiffs took issue with the Defendant’s expert report from Mr Brian Silvia of BRI Ferrier.

Key Issue

The Plaintiffs alleged that Mr Silvia’s report was inadmissible on account of its falling within the scope of section 135 of the Evidence Act (Vic), which provides for the exclusion of evidence where factors including prejudice substantially outweigh the probative value of evidence.

The complainant argued that the expert’s correspondence with Defendant lawyers in the preparation of his expert report reflected a “staggering” and prejudicial amount of collaboration. [36] The communications covered instructions to review financial reports and attend the offices of numerous accountants for the purpose of collecting documents and comprehending them. Other particulars included that:

• PV Lawyers had retained Mr Sylvia for 6 years;
• The expert had exchanged over 348 emails with PV Lawyers over the course of drafting his report [36];
• The expert had attended numerous meetings with solicitors, potential witnesses, and counsel for the defendants, in which he discussed the party’s case theory and how to approach unfavourable financial reports. [36]

The Plaintiffs claimed that the detail, frequency, and nature of the communications between Mr Silvia and PV Lawyers had jeopardised Mr Silvia’s independence to the extent where he had become unavoidably and ‘unfairly prejudicial’ to a party. [13]

Analysis of Lawyer-Expert Correspondence

Justice Riordon affirmed the rule that expert reports are only inadmissible because of loss of independence caused by a more active process of “moulding” of the expert’s report by the lawyers. [43] The Court outlined the scope of appropriate communications between experts and lawyers.

Firstly, a letter of instruction does not represent the end of a conversation between the party and its expert regarding the nature of the questions asked. [40] In general, courts expect some discussion of the matter between party.

Justice Riordan cited the Practitioner’s Guide to Briefing Experts:

‘Sending a letter of instruction is never the totality of the communication between an expert and the lawyer briefing them. Amongst other things, it will typically be appropriate’. [40]

In accordance with Justice Brooking’s comments in Phosphate Co-operative Co v Shears (No 3), lawyers perform an essential role in advising experts on how to submit a satisfactory report:

‘It is neither appropriate nor conducive to an efficient trial of a proceeding for an expert, unaware of the rules of evidence, to put forward a report that does not properly identify the basis for his or her opinion or is otherwise in an inadmissible form.’ [42]

In general, the act of correcting factual errors in letters of instruction and identifying the materials an expert requires to give their informed opinion is included in what is permissible. [42]

Secondly, there is an accepted advisory relationship between the expert and lawyers in detailed matters. Two distinct qualities of such advisroy lawyer and expert correspondence in complex matters include:

• Assistance to the expert from an employee of the lawyer that facilitates the expert’s access to, and management of, copious amounts of documentation; and
• Assistance to the lawyer from the expert, to strengthen counsel’s comprehension of the technical aspects of matter and help develop sounder case theories and cross-examination pathways. [51]

Decision: Evidence Admissible

The Court held that correspondence between Mr Silvia and PV Lawyers was not tantamount to any biased influence on Mr Silvia’s expert opinion.

To the extent that correspondence between Mr Silva and PV Lawyers was necessary to facilitate Mr Silvia’s understanding of the case, the correspondence fell within the scope of what is admissible.  The “patchy” quality of the financial records and the high quantity of documents comprising the business records (32,426 pages), “require[d] communication and indeed collaboration” between accountants and the expert. [47]

The Court further held that communications between Mr Silvia and PV Lawyers’ assistants in compiling relevant financial records reflected a practice that is “common in these complex cases” and did “not of itself lead to an inference that Mr Silvia was other than independent”. [47]

Overall, Mr Silvia’s evidence did not lack impartiality on the basis of lawyer-expert communications and on the basis that Mr Silvia’s report generally reflected the findings of other experts for the matter. [48] Mr Silvia’s report did not fall within the scope of s 135 of the Evidence Act (VIC).

Takeaways

• Lawyers and experts can and should communicate for the purpose of compiling a comprehensive and admissible report. Where lawyers require further clarity and guidance on the soundness of their case theories, they can rely on the advice of expert witnesses with the relevant expertise.

 

• A lawyer’s involvement with the drafting of an expert report becomes biased when the lawyer actively moulds the content of an expert’s report. Frequent communication between a lawyer and expert is otherwise anticipated and appropriate.