5.38: Continuing obligation on expert
5.40: Expert’s attendance at trial

Case Summary

The Court heard a Trial concerning prospective spousal support and division of matrimonial property. The parties agreed to enter two expert business valuation reports into evidence by consent. However, at Trial, the husband took issue with several conclusions reached in his own expert’s report. The husband’s counsel attempted to call this expert to give viva voce evidence at Trial. Justice Mah determined that doing so was not permitted by the Rules.

Justice Mah found that since the expert report had been entered explicitly by consent, the wife’s counsel had not served a notice requiring the expert to attend for cross-examination pursuant to Rule 5.40(1). Rule 5.40(2) provides that an expert must not give oral evidence at Trial unless they have been cross-examined, or if permitted to do so by the Court. Justice Mah held that it would be unfair to allow the expert to give evidence, since the wife had no opportunity to cross-examine, or to have her expert prepare a response to this additional evidence.

His Lordship noted that Rule 5.38 set out a process under which a party may provide an amended expert’s opinion by disclosing the new opinion and serving it immediately on the adverse party, but this process had not been followed. Justice Mah stated that the only exception to this rule may be if there is either minimal or no prejudice flowing to the adverse party, which was not the situation before the Court.

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