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1. (MY) Rules of Court 2012 ORDER 40 Court Expert

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 (MY) Rules of Court 2012 ORDER 40 Court Expert
Malaysian Court Practice - Trial Courts

Malaysian Court Practice - Trial Courts > Rules of Court 2012 > Rules of Court 2012

ORDER 40 COURT EXPERT1 Appointment of expert to report on certain question (O 40 r 1)

(1) In any cause or matter in which any question for an expert witness arises, the Court may at any time, on its own
motion or on the application of any party, appoint an independent expert or, if more than one such question arises,
two or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law
or of construction.

(2) An expert appointed under this Order or under Order 32 rule 12 shall be referred to as a “Court expert”.

(3) Any Court expert in a cause or matter shall, if possible, be a person agreed between the parties and, failing
agreement, shall be nominated by the Court.

(4) The question to be submitted to the Court expert and the instructions, if any, given to him shall, failing
agreement between the parties, be settled by the Court.

(5) In this rule “expert”, in relation to any question arising in a cause or matter, means any person who has such
knowledge or experience of or in connection with that question that his opinion on it would be admissible in
evidence.

[40.1.1] Comparative legislation

Cf RHC O 40, r 1; RC (Sing) O 40, r 1; RSC (UK) O 40, r 1.

[40.1.2] Scope

Court experts should be distinguished from experts appointed by the parties to give evidence. A court expert has an
independent role. The role of an expert is to inquire and report on any question of fact or opinion not involving
questions of law or of construction: see UEM Sunrise Bhd & 6 Ors v Majlis Perbandaran Johor Bahru Tengah
[2016] 11 MLJ 133. In Lian Chen Fah @ Lian Chen Lee v Gimo Holdings Sdn Bhd [2008] 1 MLJ 135, the court
made an order pursuant to an application by the plaintiffs under RHC O 40 (which is similar to RC O 40), that the
Pentadbir Tanah and/or Pengarah Ukur Wilayah Persekutuan be appointed as a court expert and to furnish his
written reports to the court. UEM Sunrise Bhd & 6 Ors v Majlis Perbandaran Johor Bahru Tengah [2016] 11 MLJ
133; Lian Chen @ Fah Lian Chen Lee v Gimo Holdings Sdn Bhd [2008] 1 MLJ 135
[40.1.3] Purpose
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(MY) Rules of Court 2012 ORDER 40 Court Expert

The purpose of this rule is to enable the parties to save the cost and expense of engaging individual experts in
respect of a technical question which may be resolved quickly and relatively cheaper by an independent expert
appointed by the court: UEM Sunrise Bhd & 6 Ors v Majlis Perbandaran Johor Bahru Tengah [2016] 11 MLJ 133;
Lian Chen Fah @ Lian Chen Lee v Gimo Holdings Sdn Bhd [2008] 1 MLJ 135. Engaging such experts provides the
court with expert assistance especially in cases where experts of the parties give contradictory evidence on
technical questions: see Fishenden v Higgs & Hill Ltd [1935] All ER Rep 435 (CA, Eng).

A court expert is appointed if it would lead to a just, expeditious and economical disposal of the action. The primary
duty of a court appointed expert is to assist the court in its consideration of substantial matters relevant to a case
and to provide the court with the expertise and knowledge that is required to resolve the dispute between the
parties: Pembangunan Yasal Sdn Bhd v Teo Lee Chun @ Jenny Chin Lee Chu [2011] MLJU 1169. This Order is
therefore not confined to complex, scientific or technical matters. Thus, a valuer might be appointed to assess the
true value of a property in an action for negligent valuation. Furthermore, the court expert may make inquiries by
any fair means and may incorporate in his report material which was inadmissible hearsay (particularly as an expert
does not normally have personal knowledge of the circumstances): see Abbey National Mortgages plc v Key
Surveyors Nationwide Ltd [1996] 3 All ER 184, [1996] 1 WLR 1534 (CA, Eng); Pembangunan Yasal Sdn Bhd v Teo
Lee Chun @ Jenny Chin Lee Chu [2011] 1 LNS 583.

It should be noted the fact that the parties have agreed to accept the views of a court expert on an issue does not
preclude a right of appeal even if the court has endorsed his views. This is because agreement to a court appointed
expert does not extend to the decision of the court which must be distinguished from the views of the expert: see
Riduan bin Yusof v Khng Thian Huat [2005] 2 SLR 188 (CA, Eng). Once the parties agree the valuation of a
mutually agreed expert ‘will be final’, the court will not intervene unless there is ‘fraud or some patent error’: see
Hoban Steven Maurice Dixon v Scanlon Graeme John [2005] 2 SLR 632.
[40.1.4] ‘… expert witness…’

A court expert is defined under r 1(5) and includes scientific persons, medical men, engineers, accountants,
actuaries, architects, surveyors and other specially skilled persons.

The definition of ‘expert’ is in the Evidence Act 1950 (Act 56) s 45. See Kong Nen Siew v Lim Siew Hong [1971] 1
MLJ 262 (psychiatric nurse was held to be an expert witness under the Evidence Ordinance 1950 (Ord No 11 of
1950) s 45 (now the Evidence Act 1950 s 45) to give evidence and opinion relating to mental health in general).
See also Re Saxton [1962] 2 All ER 618, [1962] 1 WLR 859 (Ch D).

In the case of Sri Paandi Restaurant Sdn Bhd & Anor v Saraswathy a/p Kesavan & Ors [2017] MLJU 628, [2017] 1
LNS 619, the court held that a Registrar’s statutory powers, duties and functions does indicate that the Registrar is
an ‘expert’.
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(MY) Rules of Court 2012 ORDER 40 Court Expert

[40.1.5] ‘… the Court may at any time …’

‘Any time’ should be understood to mean within a reasonable time in the given circumstances. In Ernest Cheong
Yong Yin (di bawah amalan nama dan gelaran Ernest Cheong PTL Chartered Suryeyors) lwn KM Engineering &
Development Sdn Bhd [1996] 4 MLJ 438, it was held that the plaintiff’s application under RHC O 40, r 1(1) for the
appointment of a court expert after the close of his case should not be allowed.
[40.1.6] ‘… two or more such experts …’

In the event ‘if more than one such question arises’, the court may on its own accord appoint more than one expert
(see r 1(1)). This shows that the court may appoint an expert for independent questions requiring expertise. The
rule disregards the appointment of two or more expertise in relation to the same question: see UEM Sunrise Bhd &
6 Ors v Majlis Perbandaran Johor Bahru Tengah [2016] 11 MLJ 133.
[40.1.7] ‘… on its own motion or application of any party…’

The role of the court expert is to assist the court on matters requiring expertise. The court may appoint an expert on
its own initiative, although in practice, this is likely to be rare in the absence of a request by a party. Application may
be made by a party for an appointment of a court expert. Ultimately, the court has the discretion in deciding whether
or not a court expert should be appointed (r 1(1)). Where the application is made by a party to the suit, there needs
to be a consensus between the parties on the expert: see Hwang Da-lin & Anor v Wong Ching Man & Ors
(unreported, HCCW No 643 of 1996). Where one party applies for the appointment of the court expert and the other
party does not object to the application, the latter cannot contend that the court ought to look at the report with
caution: see Lian Chen Fah @ Lian Chen Lee & 3 Ors v Gimo Holdings Sdn Bhd [2008] 1 MLJ 135.
[40.1.8] ‘… agreed between the parties and, failing agreement, shall be nominated by the Court’

Although it is ultimately for the court to appoint the expert, it will, in accordance with the rules, be guided by the
agreement of the parties. If the parties cannot agree, the court will make its own determination as to who should be
appointed as the expert (r 1(3)).
[40.1.9] ‘… question to be submitted to the Court expert…’

The procedure is for the question (requiring the views of the court expert) to be submitted to the court expert with
instructions. In the absence of consensus between the parties on the instructions to be given, the court will settle
the appropriate instructions (r 1(4)).
[40.1.10] Distinction between court expert and other experts

There is a significant distinction between a court expert and an expert appointed by a party. The procedure
governing the latter is found in O 40A below. There may however be a situation involving both a court expert and a
party’s expert. For a case involving expert evidence on the authenticity of the mandate signature, see Yogambikai
Nagarajah v Indian Overseas Bank [1997] 1 SLR 258 (CA, Sing). In the High Court, the forgery suit proceedings
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(MY) Rules of Court 2012 ORDER 40 Court Expert

were dominated by expert evidence on the authenticity of the mandate signature. The Singapore Court of Appeal
observed that the learned trial judge weighed the opposing opinions of either party’s expert as well as the court
expert and held that the mandate signature was genuine. See also Tenaga Nasional Berhad v Yeoh Seok Hong
[2020] MLJ 837 wherein the learned judge distinguished between an expert appointed pursuant to O 40A and O 40,
the latter being applicable to situations where an independent expert is appointed by the Court on its own motion or
on the application of any party. Such an expert is a joint expert of the Court. This distinction was also discussed in
Temurun Dinamik Sdn Bhd v Kerajaan Malaysia [2018] 1 LNS 343.

2 Report of Court expert (O 40 r 2)

(1) The Court expert shall send his report to the Court, together with such number of copies thereof as the Court
may direct, and the Registrar shall send copies of the report to the parties or their solicitors.

(2) The Court may direct the Court expert to make a further or supplemental report.

(3) Any part of a Court expert’s report which is not accepted by all the parties to the cause or matter in which it is
made shall be treated as information furnished to the Court and be given such weight as the Court thinks fit.

[40.2.1] Comparative legislation

Cf RHC O 40, r 2; RC (Sing) O 40, r 2; RSC (UK) O 40, r 2.

[40.2.2] ‘… shall send his report…’

The court expert must give his opinion in the form of a report which is sent to the court (with the requisite copies).
The report is then furnished by the court to the parties (or their solicitors) (r 2(1)).
[40.2.3] ‘… a further or supplemental report…’

Supplemental reports may be made if directed by the court (r 2(2)).

[40.2.4] ‘… not accepted by all parties…’

The court will consider the report even if the parties do not accept it (or any part) and give it the weight it deserves.
[40.2.5] ‘… information furnished to the Court…’

The report is ‘treated as information furnished to the Court’ where the parties do not accept the report or any part of
it. The court’s discretion on the weight to be accorded to the report in these circumstances signifies that the report
forms part of the evidence in the case (r 2(3)). It is the duty of the court to look at the report and obtain from it (with
or without cross-examination as the case may be) whatever help it can: see Non-Drip Measure Co Ltd v Strangers
Ltd (1943) 6 RPC 142. This however does not mean that the court is bound to accept the report: see also
Minnesota Mining & Manufacturing Co v Beiersdorf Aust Ltd (1980) 144 CLR 253.
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(MY) Rules of Court 2012 ORDER 40 Court Expert

3 Experiments and tests (O 40 r 3)

If the Court expert is of the opinion that an experiment or test of any kind (other than one of a trifling character) is
necessary to enable him to make a satisfactory report, he shall inform the parties or their solicitors and shall, if
possible, make an arrangement with them as to the expenses involved, the person to attend and other relevant
matters and if the parties are unable to agree on any of those matters, it shall be settled by the Court.

[40.3.1] Comparative legislation

Cf RHC O 40, r 3; RC (Sing) O 40, r 3; RSC (UK) O 40, r 3.

[40.3.2] Matters related to evidence of court expert

In appropriate circumstances, the court expert may need to conduct experiments or tests, in which case he must
inform the parties so that the necessary arrangements can be made, including agreement as to the expenses
involved. The court will settle matters if parties are unable to agree.

4 Cross-examination of Court expert (O 40 r 4)

Any party may, within fourteen days after receiving a copy of the Court expert’s report, apply to the Court for leave
to cross-examine the expert on his report, and on that application, the Court shall make an order for the cross-
examination of the expert by all the parties either—

(a) at the trial; or

(b) before an examiner at such time and place as may be specified in the order.

[40.4.1] Comparative legislation

Cf RHC O 40, r 4; RC (Sing) O 40, r 4; RSC (UK) O 40, r 4.

[40.4.2] ‘…cross-examine the expert…’

The expert may be cross-examined by the parties. For the process of cross-examination, see O 38, r 1 above. The
cross-examination of an expert witness should take place during the trial or before the trial: Ernest Cheong Yong
Yin v KM Engineering & Development Sdn Bhd [1996] 4 MLJ 438. Where a party does not avail itself of the
opportunity to cross-examine the court expert, it will be too late for that party to contend that the court ought to look
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(MY) Rules of Court 2012 ORDER 40 Court Expert

at the report with caution: see Lian Chen Fah @ Lian Chen Lee & 3 Ors v Gimo Holdings Sdn Bhd [2008] 1 MLJ
135.

See also Prisma Kuat Sdn Bhd v Taman Positif (M) Sdn Bhd [2019] MLJU 547, [2019] 1 LNS 786 wherein the
plaintiff’s application to cross-examine an expert was allowed on appeal despite an agreement recorded between
the plaintiff and defendant that they would be bound by the calculations by the court expert.

5 Remuneration of Court expert (O 40 r 5)

(1) The remuneration of the Court expert shall be fixed by the Court and shall include a fee for his report and a
proper sum for each day during which he is required to be present either in Court or before an examiner.

(2) Without prejudice to any order providing for payment of the Court expert’s remuneration as part of the costs of
the cause or matter, the parties shall be jointly and severally liable to pay the amount fixed by the Court for his
remuneration, but where the appointment of a Court expert is opposed the Court may, as a condition of making the
appointment, require the party applying for the appointment to give such security for the remuneration of the expert
as the Court thinks fit.

[40.5.1] Comparative legislation

Cf RHC O 40, r 5; RC (Sing) O 40, r 5; RSC (UK) O 40, r 5.

[40.5.2] ‘… remuneration of the Court expert…’

The court determines the remuneration of the expert as he is appointed by the court. In this regard, the court will
take into account the expert’s preparation and attendance (in court or before an examiner, if any).
[40.5.3] ‘…parties shall be jointly and severally liable…’

The court in exercising its discretion would make an order on the expert’s remuneration which would generally be
part of the costs payable by one party to another (see RC O 59, r 3(2) below). However, subject to this
determination, the parties are ‘jointly and severally liable to pay the amount fixed by the court’ for the expert’s
remuneration. If his appointment is opposed, the party who sought the appointment may be required to give security
for the expert’s remuneration. The court may make the provision of security a condition for appointment of the
expert.

6 Calling of expert witnesses (O 40 r 6)

Where a Court expert is appointed in a cause or matter, any party may, on giving to the other party a reasonable
time before the trial notice of his intention to do so, call one expert witness to give evidence on the question
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(MY) Rules of Court 2012 ORDER 40 Court Expert

reported on by the Court expert but no party may call more than one such witness without the leave of the Court,
and the Court shall not grant leave unless it considers it reasonable in the circumstances of the case.

[40.6.1] Comparative legislation

Cf RHC O 40, r 6; RC (Sing) O 40, r 6; RSC (UK) O 40, r 6.

[40.6.2] ‘….any party may … call one expert witness…’

If reasonable notice is given, a party may call his own expert witness to deal with the report of the court expert.
However, unless leave is granted, a party may not call more than one witness for this purpose. As to experts of
parties, see O 40A below.

End of Document