Joint Expert Conferences and Conclaves: A Practical Guide
Joint expert conferences are court-ordered meetings between experts retained by opposing parties, where they confer and produce a joint report identifying areas of agreement and disagreement. This guide walks through the process, the expert's role and how solicitors should prepare their experts for conference.
Purpose of Joint Expert Conferences
Joint expert conferences, sometimes called expert conclaves, serve two primary purposes. First, they narrow the issues in dispute by identifying where the experts agree, which reduces the hearing time and cost associated with contested expert evidence. Second, they improve the quality of the expert debate by requiring the experts to engage directly with each other's reasoning rather than simply stating their own position in separate reports.
Courts across Australia have embraced joint conferences as a case management tool, particularly in complex matters where multiple expert opinions are in play. In the NSW Personal Injury Commission and the Federal Court, joint conferences are routinely ordered in WHS and workplace injury matters. The conference outcome, a joint report identifying agreed and disputed matters, frequently becomes one of the most important documents in the proceedings.
Court Rules Requiring Joint Conferences
Joint expert conferences may be ordered by the court on its own initiative or on the application of a party. The applicable rules differ by jurisdiction. In the Federal Court, Practice Note GPN-EXPT contemplates joint conferences and joint reports. In the NSW Supreme and District Courts, the Uniform Civil Procedure Rules provide for the court to direct experts to confer. The Personal Injury Commission frequently orders joint conferences in disputed liability matters.
Where a joint conference is ordered, the order will typically specify the questions the experts are to address, the format of the joint report and the timeline for the conference to take place. Solicitors should review the order carefully and advise their expert of the specific questions they are required to address before the conference takes place.
How Expert Conferences Work in Practice
The conference is a meeting between the opposing experts, usually by video call in more recent practice. Solicitors are typically not present during the conference itself, though they may be present for certain administrative aspects. The experts confer directly on the questions specified in the court order, working through each question and recording their positions in the joint report.
For each question, the joint report records: where the experts agree, the agreed position; where they disagree, each expert's position and the reasons for the difference. The reasons for disagreement are important because they identify the specific factual or technical disputes that the court must resolve through the hearing evidence.
The duty to the court applies fully at joint conferences. An expert who enters the conference determined not to concede anything, or who changes their position under pressure without genuine justification, is not acting consistently with the code of conduct. Genuine concessions that narrow the issues are a sign of independence and credibility, not weakness.
Preparing for a Joint Expert Conference
Preparation for a joint conference is primarily the expert's responsibility, but solicitors can assist by ensuring the expert has a complete set of the relevant documents, has reviewed the opposing expert's report thoroughly, and understands the specific questions the conference is to address. A pre-conference specialist conference with briefed counsel allows counsel to understand the technical issues and advise on any legal questions that may arise.
Solicitors should advise their expert of any particular areas of weakness in the opposing expert's report, any factual disputes that may be relevant to the expert's technical analysis, and any questions that are likely to be contentious in the conference. However, solicitors should not attempt to coach the expert on what positions to take. The conference is the expert's professional engagement, not an extension of the litigation strategy.
The Joint Report: Structure and Effect
The joint report produced after the conference is signed by both experts and filed with the court. It is a highly influential document because it represents the experts' own assessment of what is genuinely agreed and genuinely in dispute. Courts take joint reports seriously and are unlikely to accept a party's attempt to re-open matters that the experts have agreed upon.
The joint report does not preclude the experts from giving oral evidence at hearing. Where matters remain in dispute, both experts may be called to give evidence and be cross-examined. But the joint report focuses the oral evidence on the genuine disputes rather than the full range of issues, which saves significant hearing time. For detail on Karim's joint conference service, see joint expert conferences. For the expert report service, see expert witness reports.
Frequently Asked Questions
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Can solicitors attend a joint expert conference?
Practice varies by jurisdiction and by the specific court order. In many cases, solicitors are not permitted to be present during the substantive expert discussion. Some orders permit solicitors to be present for administrative matters only. Where solicitors can attend, they must not interfere in the expert discussion. The conference is the experts' professional meeting, not a forum for legal argument. Check the specific court order and the applicable practice direction for the rules that apply in your matter.
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Is the joint report admissible at trial?
Yes. The joint expert report is filed with the court and becomes part of the evidence in the proceedings. It is given significant weight because it represents the experts' own assessment of what is agreed and what remains in dispute, without the influence of the parties' legal representatives. Courts are reluctant to allow parties to re-litigate matters that the experts have agreed upon in the joint report.
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What if the experts cannot reach agreement?
Where the experts are unable to agree on a particular question, the joint report records each expert's position and the reasons for the difference. This identifies the specific technical or factual dispute that the court must resolve through hearing evidence. A joint report that records genuine disagreement with clear reasons is useful and admissible. Disagreement is expected on some points and does not indicate a failure of the conference process.