The instruction letter dated the same day as the expert's report - good or bad?

The issue of when a law firm should 'settle' an instruction letter to an expert containing the questions to be addressed by an expert can be a vexing issue. Instruction letters dated on the same day or day before the expert report is finalised will be noticed by the adverse party to the proceedings and potentially also attract the scrutiny of a judge in a final hearing. However, the fact that this practice exists does not necessarily mean a disastrous outcome will result in the court proceedings.

Lee J's judgment in the matter of BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup Pty Limited [2017] FCA 1268 criticised the practice of the letter of instruction being provided contemporaneously (or near contemporaneously), i.e. whether the instruction letter can be 'taken seriously" [70] and questioned whether the instruction letter complied with r 23.13(1)(d) of the Federal Court Rules 2011. His Honour stated [71]:

"The point of a letter of instruction being annexed to a report is not to act out a stylised ritual, but to provide to the Court with a transparent indication of what has been provided to the expert and the questions that the expert was actually asked to address. It should be able to be read literally without being silly. As is (at the very least) implicit in FCR 23, the work of the expert is to attend to the questions “the expert was asked to address”, not to invert the process by using the expert’s specialised knowledge in order to identify the questions that should have been asked and the assumptions that should have been given. The true instruction to Mr V was oral and only emerged in the evidence on the voir dire. The integrity of the expert evidence process and the independence of experts is best facilitated by transparency in what is being asked of experts prior to, or at the time, they are forming their opinions and, if the questions need to change because they are misdirected, a record being made by way of supplementary instructions as to what has changed."

Yesterday, in the matter of New Aim v Leung - [2023] FCAFC 67, the Full Court of the Federal Court of Australia issued its judgment dealing with this very issue. The appellant considered that the primary judge erred in rejecting an expert's report prepared within 1 day of the instruction letter being received by the expert. The Full Court considered Lee J's judgment in BrisConnections matter and agreed that the instruction letter should be "transparent" as to what occurred (between the instructing solicitor and the expert). However, the substance of the instruction letter to the applicants' expert in the BrisConnections matter was very different to the substance of the instruction letter to the applicants' expert in the New Aim matter - accordingly, the Full Court agreed with the appellant and considered that the primary judge did err in rejecting the entirety of the expert's report and ordered a retrial of the matter.

AVG Forensic sees a wide variety of different practices by instructing solicitors when it comes to instruction letters issued to its expert, which has included instruction letters being finalised the same day of the expert report. Our experience informs that a short timeframe between the date shown on the instruction letter issued by the instructing law firm and the date of the expert report is a result of circumstances outside of the expert's control, notwithstanding the reality that our expert will be communicating with the instructing solicitors' firm about the question(s) to be addressed in the expert report well before the instruction letter is finalised. A seasoned expert witness can and should be able to provide transparency to the court, if questioned, about those circumstances. In the New Aim matter, the applicant's expert appeared to provide a very succinct response and irrelevant commentary to a direct question around the completion of the expert report within 24 hours leaving the primary judge unsatisfied that the expert was fully transparent as to the process culminating in the report being finalised.

In litigation matters involving a remedy of damages, order of compensation and/or orders of value of assets, very few of those matters requiring expert evidence can be considered straightforward where all facts are known at the outset of instructing the expert, let alone the correct question(s) to be included in an instruction letter. Again, a seasoned expert witness can and should speak up and inform the instructing solicitors and counsel (irrespective of their experience) on appropriate practice regarding the instruction letter(s) to minimise the risk of a subpoena being issued by adverse parties and questions being asked of opposing counsel and the judge in a final hearing in court which will distract from the substance of the expert's opinion.