Court managed expert evidence (CMEE)

1. What is court managed expert evidence?

In most cases in the Land Court the expert witnesses will give evidence. If there is more than one expert in a discipline or area of expertise, the court will make directions for the preparation of a joint expert witness report.

In complex cases, or where the court considers that closer supervision of the briefing and conferencing of expert witnesses is necessary, the court may direct the parties to engage in court managed expert evidence (CMEE). Unless otherwise directed, the CMEE process is ‘without prejudice’.

CMEE is conducted by a member, the judicial registrar or a convenor from the court’s ADR panel. Their role is to ensure the expert evidence is well prepared and promotes a fair and effective hearing.

2. How does CMEE start?

The court will direct CMEE for the case. The CMEE convenor will start the process by meeting with the parties and their representatives.

3. What is the role of the CMEE convenor?

The CMEE convenor will have the power to make such directions as are reasonably required for the efficient management of the CMEE process.

If the CMEE convenor is not the judicial registrar or a member of the court, or there is an issue which is fundamental to the scope of the litigation which requires a ruling by the court, the CMEE convenor may refer an issue to the court for determination. The CMEE convenor will not preside at the hearing of the case.

The CMEE convenor will not preside at the hearing of the matter unless all parties otherwise consent, in writing. A CMEE convenor may decline the request and is not required to give reasons for doing so.

How closely the CMEE convenor supervises the CMEE will depend on:

  • the nature of the case
  • how actively the parties and the expert witnesses engage in the CMEE.

4. The CMEE convenor may:

  • Assist the parties and expert witnesses to identify the issues in dispute and deciding which of those issues will require expert witness evidence.
  • Ensure the expert witnesses have the information they need to fulfil their function.
  • Determine the sequence in which the expert witnesses’ meetings take place.
  • Decide whether expert witnesses’ meetings should be chaired by the CMEE convenor.
  • Manage communication between the expert witnesses and the parties once the expert witnesses have commenced their meetings.
  • Manage and adjust the CMEE timetable.
  • Oversee the production and filing of joint expert witness reports.
  • Convene a meeting between the parties and the expert witnesses to discuss the conclusions of the joint expert witness reports and whether those conclusions alter the ongoing dispute.
  • Set a timetable for further steps in the dispute.
  • Report on progress of the dispute to the president (subject to the obligation of confidentiality) and list the proceeding for further conferences if required.

5. Working with the experts

If a CMEE convenor chairs a meeting of expert witnesses, the CMEE convenor will not give legal advice but may:

  • Reality test assumptions and conclusions.
  • Ask for clarification or explanation of a point or comment, to demonstrate that the Court may have a similar difficulty in understanding the expert witnesses’ conclusions.
  • Assist in discussions where the expert witnesses:
    • Have different levels of experience.
    • Have difficulty in communicating with each other.
    • Show a tendency towards advocacy, rather than independence.
    • Indicate a lack of expert witnesses in the particular discipline.
  • Explain to less experienced expert witnesses how a trial is conducted and what the court will expect when the expert witnesses are giving evidence.
  • Explain the process of concurrent evidence.
  • Conduct the meeting in a way that gives all expert witnesses an opportunity to speak and ensures that one expert witness does not dominate the discussion.

6. How long does the CMEE process take?

The court will generally provide a period of three months from the date of the first conference for completion of the CMEE. At the conclusion of that period, the CMEE convenor will report to the president or member managing the relevant list, as to whether additional time for completion of the CMEE is required and, if so, why.