Disclosure of Disciplinary Proceedings

In Harvest Treasure Ltd v Cheung Fat Enterprises Ltd [2016] HKEC 1550 (to be reported), the Court of Appeal recently clarified the circumstances in which an expert witness, subject to the “Code of Conduct for Expert Witnesses” in civil proceedings, should give voluntary disclosure of disciplinary proceedings against him or her.

The Code of Conduct, court rules and related case law make it clear that an expert witness’s overriding duties are to assist the court and to be independent.

Paragraph 9 of the Code of Conduct provides that if an expert believes that his or her report may be incomplete or inaccurate without some “qualification” then that qualification should be stated in his or her report.

In Harvest Treasure this led the appellant to argue (among other things) that an expert witness has a duty to volunteer disclosure of pending professional disciplinary proceedings against him or her; such disclosure was said (in effect) to amount to a “qualification” to the expert’s area of expertise.

This argument was rejected by the Court of Appeal, which made a clear distinction between two situations. On the one hand, an expert did not need to disclose a pending disciplinary matter. On the other hand, an expert should disclose disciplinary proceedings which result in a sanction curtailing his or her right to practise as a member of a professional body; at that point, an obligation to disclose under the Code of Conduct arose.

Paragraph 62 of the judgment in Harvest Treasure, is worth quoting:

In conclusion, an expert witness has a duty to disclose voluntarily the outcome of disciplinary proceedings if it results in a sentence which curtails his ability to practise as a member of that professional body. Other than that, there is no duty on the expert witness to give any voluntary disclosure of disciplinary matters.

The Court of Appeal’s judgment also makes a distinction between trivial disciplinary sanctions and those sanctions that curtail an expert’s right to practise as a member of a professional body.

In Harvest Treasure, the appellant’s challenge to the admissibility of the expert’s report and its probative value failed. The distinction between “pending” disciplinary proceedings and the “outcome” of professional disciplinary proceedings resulting in a “non-trivial” sanction should be welcomed by expert witnesses; establishing, as it does, a clear and certain demarcation as regards an expert witness’s disclosure obligations.

That said, in an increasingly risk-averse environment, the case is a timely reminder of the need to carry out appropriate due diligence before instructing an expert; including, for example, checking the expert’s accreditation status and whether there are any pending or threatened disciplinary proceedings against him or her. In civil litigation involving technical and complex issues of liability and/or quantum, the choice of expert witness is often crucial. A failure to “Know Your Expert” exposes an instructing solicitor to the risk of criticism and raises the possibility of some unwelcome surprises during cross-examination.

* Editorial Note: In a rather odd sequence of events, the expert witness in the case had membership of his professional body suspended for one year but he subsequently successfully challenged this further to a court application.