Opinion
Conclaves: A Step by Step Guide in Queensland
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18th Dec 2015
Background
The introduction of Practice Direction 17 of 2012 in Queensland (which relates to case-flow management of civil proceedings filed in the registry), saw inclusions in relation to expert evidence introduced into Part 5 of Chapter 11 of the Uniform Civil Procedure Rules 1999 (‘UCPR’) in 2005. In particular, relating to rule 429B to the UCPR. This rule gave civil courts the power to direct experts to meet and identify the matters on which they agree and/or disagree and the reasons why; and attempt to resolve any disagreement.[1] This is following the introduction of similar provisions in New South Wales.[2]
There is an increasing trend in the courts to exercise those powers, thus facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense, in the spirit of Rule 5 of the UCPR.[3] The objectives of case-flow management reflect the philosophy set out in rule 5 of the UCPR, thereby avoiding undue delay, expense and technicality and facilitating the purpose of these rules.[4]
So how do they work in practice?
Conclaves or'hot tubbing' (as they are commonly referred), are predominantly court directed by a Case-flow Management Intervention Notice – which is delivered to the parties by a court with an example of an Acceptable Plan (to be adapted to suit the particular circumstances of the case). The court has power to set the agenda and to specify matters that the experts must discuss. The timing of the court direction is usually prior to the parties agreeing to mediate and pre-trial.
Few experts are experienced in what is required of them to conduct a conclave. The AMA Position Statement – Ethical Guidelines for Doctors Acting as Medical Witnesses 2011 – gives some direction to experts of their duties when providing expert evidence.[5]
“When providing expert evidence, a doctor’s overriding duty is to assist the court impartially. This means that doctors should be honest and objective when providing evidence or an opinion. Doctors should not act as advocates for either party or allow their evidence or opinion to be influenced by:
- the side paying their fee;
- the potential outcome of the case, or
- reasons based on discrimination.”[6]
“Where required to confer with other independent expert witnesses or prepare an expert’s report with another expert witness, you should provide your independent judgment. You should identify those matters on which you agree and those matters on which you disagree and say why.”[7]
Arranging the conclave
1. Conclaves of Medical Experts are usually separated into respective disciplines or those dealing with separate issues of breach and causation.[8]
2. A joint brief to the experts is agreed between the parties, to the action with each party agreeing to be responsible for their expert’s costs.
3. The brief should include the questions you require your experts to consider pursuant to rule 429B(1) UCPR.[9] At the very least, they should include the following questions and be adapted to suit the facts of the case that are in issue: -
- the issues of fact and opinion on which you agree;
- the issues of fact and opinion on which you disagree and the reasons why you disagree; and
- details of your attempt to resolve the matters on which you disagree.
Careful consideration ought to be given to the questions to be posed to the experts as there is potential for disagreement between the parties. If agreement cannot be reached, assistance may be sought from the court.[10]
As to how the questions should be framed, Garlin J in John v Henderson (No 1), stated, “In short, questions should be framed as simply as is possible in an open-ended manner and targeted to issues raised by pleadings”.[11]
4. A copy of the Case-flow Management Intervention Notice and Acceptable Plan or Court Order, should be included to identify the timeframes within which the conclave is required by the court to occur, and the deadline for the report to be provided.
5. The use of an independent facilitator or Chair may be useful to oversee and ensure the conduct of the conclave, and the proper and adequate reporting of the expert evidence. The Chair may be a person who has some knowledge of the process to enable them to ensure the efficient discharge of the task of the conclave.[12]
6. Each party is responsible for ensuring that their expert complies with the court direction and that the joint report is prepared, signed and submitted. This is often lead by the party that has taken charge in arranging the conclave.
7. If the parties cannot agree in relation to the agenda and form of the meeting, the Court may make directions in relation to these matters.[13]
8. The report is then submitted to the parties by the expert, for inclusion into the List of Documents and thus completes the conclave of experts.
Considerations
As a side note, the real difficulty between experts often lies in the tests that have been conducted to reach their individual conclusions, in particular, psychological or neuropsychological testing. This can often lead to confusion amongst the experts as to how to set out their report and report on their differences. Reassurances should be given to the experts that the purpose of the conclave is not to ultimately reach an agreement. It is to set out where they agree and disagree and give their reasoning on areas they disagree.
What happens after the conclave? - The Court process
For some claims, after the reports have been submitted, there is no further requirement for involvement of the experts. However, if the claim advances to a trial, consideration ought to be given as to the court procedures of the experts giving evidence.
Expert evidence is presented concurrently by a panel of experts, with the presiding judge given discretion to intervene to ensure that interventions and interjections are appropriately made.[14] It resembles a discussion in which a co-operative endeavour is engaged to identify the relevant issues, and where possible, arrive at an agreed resolution of them.[15]
The composition of conclaves is not determinative of the structure of the concurrent evidence at trial – which is a matter for consideration once the joint reports are received.[16]
Conclusion
Although introduced in Queensland in 2005, conclaves have been relatively rare and unfamiliar territory to most legal practitioners and medical experts alike. Disputes will undoubtedly arise between legal practitioners and medical experts. Reassurances can be given by reference to rule 429 of the UCPR and utilising the court in implementation of the process, to ensure all parties have a fair and reasonable opportunity to present their case.[17]
Jasmin Sears is a Lawyer in the Medical Negligence department at Slater and Gordon Lawyers. She was admitted in 2011 and has practised in the areas of medical negligence, asbestos litigation, workers compensation, motor vehicle accidents and public liability. She is a member of the Medico-Legal Society of Queensland and the Women Lawyers Association of Queensland. She enjoys keeping active in her spare time and regularly competes in outrigger canoe regattas and is a singer and percussionist.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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Expert Evidence - Further Clarification
In addition to the Article published on 18 December 2015 by Lawyers Alliance, I wish to provide some clarification to assist the reader.
Whilst conclaves are commonly referred to as “hot tubbing”, this is a misnomer and the use of the term “hot tubbing” for conclaves should be avoided. Conclaving and hot tubbing are two separate processes.
A conclave is the process where the experts met (without legal representatives being involved) and prepare a joint report outlining what they agree upon, what they don’t agree upon and why they are in disagreement. This is done before trial.
Hot tubbing is the colloquial name for Concurrent Expert Evidence.This is the process where opposing experts sit together in court and give evidence together. It generally forms a structured discussion where the experts give their evidence in front of each other and can be cross examined together. Experts can also be invited to comment on each other’s evidence and explain to the court why they disagree with the evidence of the other expert. In short, they sit in "the hot tub" together in court before the judge.
You can have a conclave without subsequent hot tubbing. You can also have hot tubbing without a prior conclave (although this is not ideal).
The Queensland Supreme Court Case Flow Management Practice Directions typically requires a conclave. However, it does not require hot tubbing.
For more information about the process, benefits or criticism of experts giving evidence via the “hot tub” process, Justice Rares provides an insightful view in his speech “Using the “Hot Tub” – How Concurrent Expert Evidence aids understanding issues”. This can be found here.
Further, a re-enactment of an actual hot tub can be found in the video produced by the Judicial Commission of New South Wales and the Australasian Institute of Judicial Administration entitled “Concurrent Evidence: New methods with experts”.
References
[1] Rule 429B Uniform Civil Procedure Rules 1999.
[2] See: NSW Supreme Court Practice Note SC Gen 11 “Joint Conferences of Expert Witnesses” 17 August 2005; and; NSW Supreme Court Practice Note SC CL 5 “Common Law Division – General Case Management List” 29 January 2007 – see clause 36-40 which makes a Joint Report the default position in personal injury actions.
[3] Rule 5, Uniform Civil Procedure Rules 1999.
[4] Supreme Court of Queensland Practice Direction 17 of 2012.
[5] AMA Position Statement – Ethical Guidelines for Doctors Acting as Medical Witnesses 2011.
[6] AMA Position Statement – Ethical Guidelines for Doctors Acting as Medical Witnesses 2011, 3.2.
[7] AMA Position Statement – Ethical Guidelines for Doctors Acting as Medical Witnesses 2011, 6.9.
[8] See Porter v. Le [2014] NSWSC 883 at [26].
[9] Rule 429B(1) Uniform Civil Procedure Rules 1999.
[10] Rule 429B(2) Uniform Civil Procedure Rules 1999.
[11] John v Henderson (No 1) [2013] NSWSC 1435 at [28]. See also Rowe v AusNet Electricity Services [2014] VSC 553 at [22]: “The questions should be designed as a guide for the experts. Where possible, the questions should be drafted at a higher, broader level. It is ultimately for the experts to consider the issues which they consider are relevant. The questions sere as guidance, not a second chance to put questions to the experts and particularly not to put loaded questions to the experts which may influence the importance attributed to a particular issue or topic.”; Adopted from a paper given by Tina Cockburn and Bill Madden: ‘Adapting to concurrent expert evidence in medical litigation’ (2015) 22 JLM 610.
[12] Adopted from a paper given by Justice Peter Garling NSWSC 17 August 2011.
[13] Rule 429B(2) Uniform Civil Procedure Rules 1999.
[14] Adopted from a paper given by Tina Cockburn and Bill Madden: ‘Adapting to concurrent expert evidence in medical litigation’, (2015) 22 JLM 610.
[15] John v Henderson (No 1) [2013] NSWSC 1435 at [11], citing Botany Bay Council v Rethman Australia Environmental Services Pty Limited [2004] NSWCA 414 at [46] (Tobias JA, Spigelman CJ and Santow JA agreeing).
[16] Rowe v AusNet Electricity Services [2014] VSC 553 at [13] (Zammit AsJ); Adopted from a paper given by Tina Cockburn and Bill Madden: ‘Adapting to concurrent expert evidence in medical litigation’, (2015) 22 JLM 610.
[17] Rule 429B Uniform Civil Procedure Rules 1999.
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