Background:

It is a growing trend for letters of instruction to be dated to be contemporaneous with the completion of an expert witness report. In BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup Pty Limited [2017] FCA 1268, Justice Lee made obiter dictum comments that suggest it is preferable for legal practitioners to steer clear of this practice, to avoid the risk of expert witness reports being excluded from the court’s consideration.

The Case:

The case involved determining whether Arup Pty Ltd produced misleading and negligent traffic forecasts for BrisConnections Finance. It was in the context of this judgement that Justice Lee made non-binding obiter dictum comments regarding the practice of contemporaneously dating letters of instruction.

Justice Lee’s Comments 

Justice Lee asserted that the purpose of the letter of instruction was not merely to “act out a stylised ritual, but to provide to the court a transparent indication of what has been provided to the expert and the questions that the expert has actually been asked to address”. [71] This is opposed to inverting the process by “using the expert’s specialised knowledge in order to identity the questions that should have been asked and the assumptions that should have been given”. [71] Justice Lee stated that, rather than retroactively ensuring the letter of instruction answers the questions in the report, supplementary instructions should be issued instead. [71]

His Honour was very critical of the contemporaneous dating of letters of instruction, questioning whether this practice “actually complies with the requirements of FCR 23.13(1)(d)” of the Federal Court Rules 2011 (Cth) [70] which states that an expert’s report must “identify the questions that the expert was asked to address.” [70] Although Justice Lee left the question open, he did say that in this matter, the letter of instruction could not be taken seriously, due to the fact that the document purported to be the first contact with the expert when in fact the expert witness had been “working hand in glove with the solicitors…for over a year.” [70].

Takeaways:

Justice Lee’s comments suggest that the contemporaneous dating of letters of instruction should be avoided to ensure compliance with the Federal Court Rules 2011 and to avoid the risk of expert witness evidence being excluded. Likewise, when a letter of instruction is finalised following the completion of an expert witness report, it should not inaccurately suggest that it represents the first contact with the expert.

There is likely to be more case law on the dating of letters of instruction in the near future, and legal practitioners should be careful to ensure that transparency is prioritised in communications with an expert witness.

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