Concurrent and Court-appointed Experts - from Wigmore's "Golgotha" to Woolf's "Proportionate Consensus"

Professor J.H. Wigmore once remarked that “[p]rofessional [witnesses] of honourable instincts and high scientific standards look upon the witness box as a Golgotha, and disclaim all respect for the law’s methods of investigation.”

Recent developments in civil procedure have been driven by greater judicial control of the litigation process and more sophisticated, and intrusive, case management techniques.  Greater judicial control of expert witnesses, whether selected by the parties or court-appointed, has resulted in significant judicial intervention in the traditional adversarial trial.

These developments have arisen as a result of attempts to control the cost of litigation, to reduce partisanship on the part of experts and to enhance judicial understanding of complex issues. However, the involvement of judges in the process of controlling expert evidence (let alone in the selection of the expert) has raised questions of judicial independence and judges themselves have questioned the sufficiency of their knowledge to make such determinations, particularly at the early stages of litigation.

Recent appellate and first instance cases in common law courts have demonstrated considerable support for trial judges in their assessment and rulings regarding the role and function of concurrent and court appointed experts and have also emphasised the need for counsel to participate actively in their use when adopted. This is well-illustrated by the observation of Giles JA in Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392 at [107]:

“When concurrent evidence is being taken with a degree of direction by the judge, counsel are not passengers. They can and should seek to raise material issues and put material questions to the witnesses who occupy the hot tub, if necessary submitting that the judge's view of how the evidence should be brought out should be modified.”

See, further:

Wilson, “Concurrent and Court-Appointed Experts – From Wigmore’s “Golgotha” to Woolf’s “Proportionate Consensus” (2013) Civil Justice Quarterly 493