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The perils of assisting an expert to write their expert report. New Aim Pty Ltd v Leung [2022] FCA 722

by Website Administrator

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The facts

The Plaintiff, New Aim, was an e-commerce business who sourced products from various suppliers in China. New Aim sued three of its former employees alleging that they head each passed confidential information acquired during the course of their employment with two competitors who were also in the e-commerce business.

In support of its claims, New Aim called as an expert witness Ms Fangyun Chen, a managing director of a company which specialised in procuring products from China, and the publisher of a book named “Import from China: How to Make a Million and Not Get Burnt”.

The expert report

Ms Chen’s expert report was dated 8 March 2022. Attached to it was the solicitors engagement letter – dated only a day earlier, 7 March 2022.

The fact that Ms Chen was able to produce a 16 page expert report within a day was the subject of extensive cross-examination. Ms Chen revealed under cross examination that she had produced drafts that pre-dated the 7 March letter of instruction. When asked who drafted the final version of her report, she answered (after much prevarication) that she started it, and it was completed by New Aim’s solicitors.

After it was put to Ms Chen that parts of her report bore remarkable similarity to a witness statement of one of New Aim’s other witnesses (which had been drafted by the solicitors), she conceded that she had received emails from New Aim’s solicitors which had suggested that she make changes to her report.

Production was called for of all versions of Ms Chen’s report, plus correspondence she had with New Aim’s solicitors. That call for production disastrously revealed:

  • Prior to receiving her engagement letter, Ms Chen had a number of conferences with New Aim’s solicitors;
  • The solicitors had prepared the first draft of Ms Chen’s report, and had asked Ms Chen for copies of “templates” they could use; and
  • The solicitors sent Ms Chen a copy of her expert report in the morning of 8 March 2022 which was not materially different than that would later be filed.

The Court’s comments

McElwaine J noted that the proper role of a legal practitioner in assisting in preparing an expert report may include ensuring that the report is directed to the issues before the court (citing Cross on Evidence). Indeed in some circumstances, the fact that an expert agreed with a form of words proposed to them by solicitors might not detract from the independence of that expert or the reliability of that opinion (the Court relying on the reasoning of Lindgren J in Harrington-Smith on Behalf of the Wongatha People v Western Australia (No 7) (2003) 13 FCR 424).

But His Honour noted that the compiling of Ms Chen’s report went far beyond the bounds of what was permissible, stating at [69]: “I am left in a state of uncertainty as to who was responsible for the drafting of which portions of her report. It would appear that most of the report was, at least initially, the product of drafting by the lawyers for the applicant, albeit in reliance upon some material of a non-specific nature that Ms Chen provided to the lawyers”.

His Honour’s reservations led him to exclude the evidence in its entirety. The Court also had choice words for the solicitors involved in preparing Ms Chen’s report, which it described as “misleading”.

The take home message is to avoid, if possible, assisting an expert to prepare their report, and if necessary to be circumspect with the assistance that is given. Clearly, do not write it for them.

Fabian Brimfield

Liability limited by a scheme approved under professional standards legislation

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