The comments of Cavanagh J in Stott v Australian Hospital Care (Pindara) Pty Ltd t/a Pindara Private Hospital [2022] NSWSC 1508 serves as a salient reminder that the purpose of expert conclaves and concurrent evidence is to facilitate efficient and cheaper litigation.

The plaintiff, Mr Stott, is suing three defendants for each having provided negligent treatment to him at various times. In support of his claim, Mr Stott engaged seven experts, and each of the defendants retained their own experts.

Mr Stott made an application for the vacation of the hearing date on medical grounds. In response to the application, the defendants sought costs thrown away as a result of the vacation of the hearing date; those costs included the preparation of conclave reports in anticipation of the hearing. The combined estimate of completing the expert conclave process in this case was $300,000.

Cavanagh J made the costs orders as sought by the defendants, and provided criticism of the conclaves, joint reports and concurrent evidence.

In particular, his Honour noted that in his experience, “the cost of expert conclaves and concurrent evidence is skyrocketing” [26] and that the approach in this matter to the preparation for joint reports “is not consistent with that which the Court intends” [31].

Key takeaways:

• The purpose of requiring experts to attend a conclave and produce a joint report is efficient and cheaper litigation.
• The expert conclave process is not a forum for the parties to put further assumptions and questions which serve their own case to the experts, particularly where the experts have already prepared their own reports.
• The conclave and joint report should result in concurrent evidence focused on matters on which the experts do not agree.

 

Read the court decision here.