Report No. 185

Section 45

In the 69th Report, after an elaborate discussion, the Commission recommended (end of para 17.44) to include 'footprints, palm impressions or typewriting, as the case may be' in section 45 and further recommended insertion of section 45A in regard to the duty of an expert witness to supply copy of his report to all parties, along with the grounds for opinion.

Sec. 45B was proposed to cover expert opinion on 'foreign law' as in the statutes of 1859, 1861 with two subsections.

We do not think 'foot prints and palm impressions' alone be added in 45. Typewriting, trade, technical terms, inventory of persons or animals must also be added. Section 45 should be amended as follows:

For the portion beginning with the words "When the court has to form an opinion" and ending with the words "Such persons are called experts" the following shall be substituted, namely:-

"When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to the identity of handwriting, or finger impressions or, footprints or, palm impressions or typewriting or usage of trade or technical terms or identity of persons or animals, the opinions, upon that point, of persons specially skilled in such foreign law, science or art, or as to the identity of handwriting, finger impressions, footprints, palm impressions, typewriting, usage of trade, technical terms or identity of persons or animals, as the case may be, are relevant facts. Such persons are called 'experts'."

Sec. 45A is to be inserted in regard to the duty of an expert witness to supply a copy of his report to all parties along with the grounds for opinion. No doubt, this is procedural and could be inserted in the Code of Civil and Criminal Procedure but instead, it could as well form part of the Evidence Act. The Report should be 'verified'. In this connection, we would wish to expand section 45 as proposed in the 69th Report further, on the model of the UK 'Practice Directions, Supplementary Civil Practice Rule 35' set out in para 44.24 of Phipson, in the manner stated below. We modify proposed section 45A as follows (see Phipson, paras 44.20 and 44.224):

"45A. Supply of copy of Expert`s Report.- (1) Except by leave of the Court, a witness shall not testify as an expert unless a copy of his report has, pursuant to subsections (2) and (3), been given to all the parties.

(2) An expert's report shall be addressed to the Court and not to the party on whose behalf he is examined and he shall owe a duty to help the Court and this duty shall override any obligation to the party on whose behalf he is examined.

(3) An expert's report mus.-

(a) give details of the expert's qualifications;

(b) give details of any literature or other material which the expert has relied on, in making the report;

(c) state who carried out any test or experiment which the expert has used for the report and whether or not the test or experiment has been carried out under the expert's supervision and the reasons if any, given by the person who conducted the test;

(d) give the qualifications of the person who carried out any such test or experiment;

(e) where there is a range of opinion on the matters dealt with in the repor.-

(i) summarise the range of opinion, and

(ii) give reasons for his own opinion;

(f) contain a summary of conclusions reached;

(g) contain a statement that the expert understood his duty to the Court and has complied with that duty;

(h) contain a statement setting out the substance of all material instructions (whether written or oral) of the party on whose behalf he is examined.;

(i) be verified by a statement of truth as follows:

"I believe that the facts I have stated in the report are true and that the opinion I have expressed are correct "; and

(j) contain a statement that the expert is conscious that if the report contained any false statement without an honest belief about its truth, proceedings may be brought for prosecution or for contempt of Court, with the permission and under the directions of Court."