City Research Online

Abstract

Party experts and their evidence in civil proceedings came under intense judicial scrutiny in the late-1990s and early-2000s. The ‘problems’ then perceived to be acute by judges included party selection of experts suppresses (and deprives Courts of) counter or neutral opinions; excessive party experts; contradictory party experts; costs; and bias. Lord Woolf found party expert evidence to be one of two major generators of unnecessary costs and party experts to be a weapon used by litigators to take unfair advantage of an opponent’s lack of resources or ignorance.

This research uses legal evolutionary and institutional theory to analyse the data about the ‘problems’ and the procedural rules regulating party experts to understand why the judicial distrust of party experts arose, how the ‘problems’ became so acute, why the procedural rules had failed and whether the ‘problems’ could have been avoided.

It argues that, though the evolution of the ‘problems’ and the procedural reforms commenced in England much later than in NSW and Victoria, there are many
important evolutionary similarities, including the desuetude of the discretionary powers which had long been available to English, NSW and Victorian judges and which could have been used by them to address the ‘problems’. It demonstrates that in all three jurisdictions, the ‘problems’ and the party expert procedural reforms did not evolve in isolation but rather at least partly coevolved with each jurisdiction’s civil justice ‘crises’.

The analysis in this research does not support the bulk of the judicial criticisms of party experts and argues that there is no reliable data which persuasively shows that the ‘problems’ were acute in the late-1990s and early-2000s.

Publication Type:	Thesis (Doctoral)
Subjects:	K Law > K Law (General)
Departments:	The City Law School > The City Law School Doctoral Theses Doctoral Theses

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