S V W HC AK CIV 2011-404-3775

S V W HC AK CIV 2011-404-3775 7 December 2011IN TERMS OF INTERIM ORDER MADE BY VENNING J ON 24 JUNE 2011AS EXTENDED BY LANG J ON 29 JUNE 2011 ORDER PROHIBITINGPUBLICATION OF JUDGMENT AND ANY PART OF THE PROCEEDING(INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNETOR OTHER PUBLICLY AVAILABLE DATABASE UNTIL TRIAL.PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2011-404-3775IN THE MATTER OF the Declaratory Judgments Act 1908,Declarations at Common Law and Ordersunder the Protection of Personal andProperty Rights Act 1988BETWEEN SApplicantAND WRespondentHearing: 1 December 2011Appearances: J Miles QC and A F Grant for SA H Waalkens QC and J Lethbridge for WK Davenport for CWJudgment: 7 December 2011 at 4:00 PMJUDGMENT OF WHITE JThis judgment was delivered by me on 7 December 2011 at 4.00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Introduction[1] In this proceeding S is applying for declarations and orders from the High Court that W lacked the requisite mental capacity to revoke his powers of attorney in favour of S, to make new powers of attorney and a new will, and to apply to the Family Court for dissolution of his marriage with S and division of their relationship property.[2] In support of her application, S has filed expert affidavit evidence as to W'slack of mental capacity from Dr Jonathan Simcock, neurologist, Dr Gregory Finucane, neuropsychiatrist, and Dr Bede McIvor, consultant psychiatrist and psycho-geriatrician (S's expert witnesses). The evidence of Drs Simcock and Finucane was provided without the opportunity of examining W because he declined to agree to be examined by them. Dr McIvor had examined W on two occasions in March 2010 for the purpose of assessing whether or not he had dementia.[3] In support of his opposition to S's application and in response to S's expertwitnesses, W has filed affidavit evidence from his two general practitioners and four experts, namely Dr Alan Jenner, geriatrician, Dr Phillip Wood, geriatrician, Dr Alexander Srzich, psychiatrist, and Dr Ian Goodwin, psychiatrist (W's expert witnesses). Each of W's expert witnesses deposed that he had had the opportunity toexamine W on at least two occasions before providing his affidavit. Both Drs Jenner and Goodwin commented adversely on the fact that Drs Simcock and Finucane had not assessed W personally, but had relied on the truth of statements made by S.[4] Faced with the evidence of W's expert witnesses, all of whom had examined W, S has made an interlocutory application to the Court under r 9.30 of the High Court Rules for an order under s 100 of the Judicature Act 1908 that W be examinedby her expert witnesses. The application is made on the grounds that as W's mentalcapacity is in issue in the proceeding her expert witnesses should be entitled to examine W to ensure that they are not disadvantaged in giving their evidence and she is not prevented from obtaining a just determination of her case.[5] W does not now oppose an order by the Court under s 100 for hisexamination, but objects to examination by S's expert witnesses on the grounds thatthey will not be able to conduct an "independent medical examination" as requiredby s 100 because, contrary to r 9.43 of the High Court Rules and s 26(1) of the Evidence Act 2006, their affidavit evidence breaches the requirements of the code of conduct for expert witnesses under the High Court Rules and, while bias in fact isnot alleged, there is a "reasonable apprehension" of bias on their part such that a just determination of the case requires examination by truly independent medical practitioners rather than S's expert witnesses. W did not suggest that S's expertwitnesses were not entitled to give their affidavit evidence, but argued that they ought to have qualified their evidence and not expressed emphatic opinions on theissue of W's mental capacity without the benefit of examining him.[6] A separate application by S that W also be examined by a neuropsychologist was opposed by W on the ground that a neuropsychologist is not within theexpression "medical practitioner" under s 100. It was submitted for S that the expression "medical practitioner" should be construed so as to permit the named medical practitioners to obtain a report from a neuropsychologist or that the Court should exercise its inherent jurisdiction to make the order sought.[7] W also sought the imposition of a number of conditions to the order for the independent medical examination under s 100. Most of the conditions were initially opposed by S, but by the end of the hearing there was no real disagreement as to the nature and scope of the appropriate conditions.[8] The principal issue for determination therefore is whether the order under s 100 should require W to be examined by S's expert witnesses or whether he should be examined by other appropriate specialist medical practitioners not previously involved in the case. To determine this issue it is necessary to refer to the legal principles relating to the interpretation and application of s 100 and the respective requirements for expert witnesses and testamentary capacity, before summarising thesubmissions for the parties and examining the affidavits of S's expert witnesses insome detail.The interpretation and application of s 100[9] Section 100 of the Judicature Act 1908 provides:Independent medical examination(1) Where the physical or mental condition of a person who is a party to any civil proceedings is relevant to any matter in question in those proceedings, the High Court may order that that person submit himself to examination at a time and place specified in the order by one or more medical practitioners named in the order.(2) A person required by an order under subsection (1) of this section to submit to examination may have a medical practitioner chosen by that person attend that person's examination.(3) The Court may order that the party seeking the order pay to the person to be examined a reasonable sum to meet that person's travelling and other expenses of and incidental to the examination, including the expenses of having a medical practitioner chosen by that person attend that person's examination.(4) Where an order is made under subsection (1) of this section, the person required by that order to submit to examination shall do all things reasonably requested, and answer all questions reasonably asked of that person, by the medical practitioner for the purposes of the examination.(5) If a person ordered under subsection (1) of this section to submit to examination fails, without reasonable excuse, to comply with the order, or in any way obstructs the examination, the Court may, on terms, stay the proceedings or strike out the pleading of that person.(6) This section applies to the Crown and every Department of the public service.(7) Nothing in this section affects the provisions of the Workers' Compensation Act 1956.[10] In the present case the parties are in agreement that, as W's mental conditionis relevant to matters in question in this proceeding, the Court should exercise its discretion under s 100(1) to make an order that W submit himself for examination at times and places to be specified in the order by appropriate specialist medical practitioners named in the order. This case is not concerned with whether the Court should exercise its discretion, but the manner in which the discretion should be exercised. In exercising its discretion, the Court will be guided by the purpose of the provision and the approach adopted in previous cases.[11] The purpose of s 100, which was first enacted in the Accidents Compensation Act 1901, is to ensure that when the physical or mental condition of one party to a proceeding is relevant the other party may obtain an order from the Court for the independent medical examination of the first party in order to avoid the significant disadvantage that is inherent in the Court having evidence from the medical practitioner(s) for one party only and thus preventing the just determination of the case: Anderson v Northland Health Ltd, Murray v Roman Catholic Archdiocese of Wellington, and Wiffin v Attorney-General.1[12] With this purpose in mind, it has been held in a line of New Zealand decisions on s 100 that the party seeking the order is entitled to nominate suitably qualified medical practitioners to conduct the examination and that an objection by the party to be examined by those medical practitioners will only be upheld if a soundly based and just determination of the case would be prejudiced:(a) Anderson v Northland Health Ltd at 341-342. The person to be examined objected to the nominated medical practitioner, who had previously examined and reported on her, on the grounds that: she did not find his style of examination easy; he did not establish a rapport; he was unsympathetic and not really interested in her; he was biased against her; and she was distressed by his conduct and report. Laurenson J, having read the report by the nominated medical practitioner, rejected the objection as unsubstantiated.(b) New Zealand Permanent Trustees Ltd v National Mutual Life Association of Australia Ltd.2 Associate Judge Gendall rejected as unsubstantiated an objection to the nominated medical practitioner by the person to be examined on the ground that there was no evidence to support the proposition that the medical practitioner would not be able to provide a truly independent examination.1 Anderson v Northland Health Ltd (1998) 12 PRNZ 338 (HC) at 342; Murray v Roman CatholicArchdiocese of Wellington (2004) 17 PRNZ 216 (HC) at [17]-[18] and [33]-[34]; and Wiffin vAttorney-General (2009) 19 PRNZ 307 (HC) at [17].2 New Zealand Permanent Trustees Ltd v National Mutual Life Association of Australia Ltd HC Wellington CIV-2005-485-411, 17 July 2006, at [54].(c) Pickard v Ambrose.3 The persons to be examined by the nominated medical practitioner objected on the grounds that the practitioner had previously completed a report in respect of them, on the basis of written information made available to him about them which was characterised by them as unqualified and final and not recognising any need for a personal examination. It was also argued that once committed to that stance, characterised as being supportive of theother parties' case, there would be a subconscious reluctance by anyexpert in the medical practitioner's position to resile from it ifenhanced knowledge of their situation once he had examined them would otherwise lead to a contrary view. In rejecting these objections, Dobson J in the High Court said:[26] Acceptance of this criticism would involve one of two alternative findings against Professor Gorman. Either, a rejection of his clearly expressed assurances in his affidavit that he understands his duty to assist the Court impartially, that he is not an advocate for the defendants, and that he agrees to comply with the Code of Conduct for expert witnesses. Any such rejection of his sworn testimony would be on the basis of the content of his earlier report. That is entirely unwarranted.[27] The second alternative would involve a rather subtleconclusion that notwithstanding the Professor's articulatedintention to come to the matter with an impartial mind, subconsciously he would favour a report downplaying theplaintiffs' prospects because he has done that in the past. Isee no justification for that....[29] Assessed overall, I fail to see that this 2004 report would lead to the prospect of some subconscious bias against the plaintiffs. As Mr Simms submitted, the prioritygiven to ongoing integrity of a senior academic's reputation,and the integrity of the Auckland School of Medicine which he heads, should operate as a far greater discipline than anyvestige of "ownership" or subconscious need to protect the2004 report by producing an analysis ostensibly consistent with it.3 Pickard v Ambrose (2008) 18 PRNZ 848 (HC) at [24]-[29].[13] Reference was made in all of these New Zealand decisions to the English Court of Appeal decision in Starr v National Coal Board,4 which involved a personal injuries claim where the plaintiff made no attack on the professional competence or personal integrity of the nominated doctor, who was a distinguished consultant neurologist, but asserted that he was apprehensive that the doctor would produce a misleading report because, so the plaintiff alleged, the doctor had been unprofessional in his conduct in examining and reporting on other plaintiffs in the past. The plaintiff also suggested that the doctor was a hostile examiner of plaintiffs. The plaintiff was willing to be examined by any consultant neurologist other than the nominated doctor. As this decision was relied on by Mr Waalkens QC for W, it is appropriate to set out the relevant passages from the leading judgment of Scarman LJ at 250-251 in full:The test here must be related to the necessity, so far as the court can assist, ofensuring a 'just determination of the cause'. It was here that counsel for theplaintiff had to pass to his second submission. Unable, as he was in my judgment, to rely on the proposition that the plaintiff need give no reasons, he secondarily submitted that there was in this case good reason, associated with a just determination of the cause, for the plaintiff to refuse examination by this particular doctor. Both counsel recognised that an investigation into the reasons for the plaintiff's decision – or, more accurately, for the decisiontaken by him on his solicitors' advice – leads the court into difficult waters. In some cases it might not be at all difficult to reach a conclusion, withoutany criticism of the doctor, that the plaintiff was entitled to say: 'Not this doctor'. An obvious illustration of such a case would be a woman plaintiffwho had an injury which she would prefer to have examined by a woman doctor. One can envisage other cases where objection of a very personal character, in no way reflecting on the competence or character of the doctor, might exist why the plaintiff should say: 'Not this doctor, but another.' Butthat is not this case. It is alleged in this case that the professional conduct of Dr X in examining and reporting on other plaintiffs in the past was such as to suggest that he might well not produce a report which was not misleading. Counsel for the plaintiff put it in this way: that the plaintiff's solicitors werenot fully confident, based on their experience of his reports in the past, that he would prepare a report which was not misleading. Counsel for the plaintiff made it clear that there was no suggestion of lack of competence or of lack of honesty or of professional honour, but there were indications in earlier reports in other cases, which were produced for our examination, which would appear to suggest that this doctor was not always successful in making a full, complete, and not misleading report.I certainly do not think that it is incumbent on a plaintiff, in this situation, to have to prove to the satisfaction of the court that the doctor had erred in the past in the way suggested, or was likely to make in this case the sort of mistake or error that he might appear to have made earlier. All that has to4 Starr v National Coal Board [1977] 1 All ER 243 (EWCA).be proved is that the plaintiff and his advisers were entertaining reasonable apprehension that that might be so, and that those apprehensions, if realised, might make a 'just determination of the cause' more difficult than it would be if another doctor conducted theexamination.This is indeed difficult territory, since the doctor has not been represented and cannot, under the necessities of the case, be represented, in this court.Counsel for the plaintiff has taken us through three previous cases in which this doctor was called on by these defendants to examine plaintiffs on their behalf. I will say no more about those cases than that, after a thorough study of the material put before us – a study in which we have been greatly helped by counsel for the plaintiff, and by counsel for the defendants– I am not satisfied that there is anything in them that substantiates the submission made by counsel for the plaintiff that here is a doctor who has difficulty in providing reports which are not misleading.The view which I have taken, at the end of the day, is that there is nothing in the three cases to undermine confidence in the impartiality or professional expertise of this very distinguished doctor. I say no more, because to get into a discussion of these matters could only create further embarrassment for all concerned. I have, therefore, come to the conclusion that the request for medical examination of the plaintiff by this particular consultant neurologist was a reasonable one; and I have come to the conclusion that, notwithstanding the matters that have been developed in argument, the plaintiff was unreasonable in refusing to submit himself to examination and that there is, in the matters that have been adduced to this court, no indication that justice to the plaintiff is liable to be imperilled if this doctor examines him, reports and ultimately gives evidence.(emphasis added)[14] As Mr Waalkens also claimed in the present case that, as a result of theirbreaches of the code of conduct, S's expert witnesses did not have the requisiteindependence for appointment under s 100, it is helpful to refer to the views of Dobson J in Pickard v Ambrose at [15] on this point:Notwithstanding the distinction between Court-appointed, and party- retained, experts, I do not consider that the independence required is any more than that needed to comply with the Code of Conduct for experts under the High Court Rules. The natural and ordinary meanings of "independent" include autonomous, thinking for oneself, not influenced by others in one'sopinions. In the context of personal injury litigation 100 years ago, that would be an appropriate and sufficient attribute. More recent articulation ofthe Courts' expectations of experts more generally reflects similarexpectations. When coupled with the requirement that all experts explicitly acknowledge that they participate to assist the Court, and not to advocate for any cause, the ultimate aim of affording assistance to the Court in determining a relevant issue is appropriately protected.[15] I agree.The requirements for expert witnesses[16] The requirements for expert witnesses in New Zealand are governed by both the High Court Rules and the Evidence Act 2006.[17] Rule 9.43 of the High Court Rules provides:Expert witness to comply with code of conduct(1) A party to a proceeding who engages an expert witness must give the expert witness a copy of the code of conduct set out in Schedule 4.(2) An expert witness must—(a) state in any written statement of the proposed evidence of the witness served under rule 9.2 or 9.3, or at the time of giving any oral evidence, or in any affidavit containing the evidence of the expert witness, that the expert witness has read the code of conduct and agrees to comply with it:(b) comply with the code of conduct in preparing any written statement of the proposed evidence of the witness to be served under rule 9.2 or 9.3 or in giving any oral or affidavit evidence in any proceeding.(3) The evidence of an expert witness who has not complied with subclause (2)(a) may be offered only with the leave of the court.[18] The code of conduct for expert witnesses in Schedule 4 of the High Court Rules reads as follows:Duty to the court1 An expert witness has an overriding duty to assist the court impartially on relevant matters within the expert's area of expertise.2 An expert witness is not an advocate for the party who engages the witness.Evidence of expert witness3 In any evidence given by an expert witness, the expert witness must—(a) acknowledge that the expert witness has read this code of conduct and agrees to comply with it:(b) state the expert witness' qualifications as an expert:(c) state the issues the evidence of the expert witness addresses and that the evidence is within the expert's area of expertise:(d) state the facts and assumptions on which the opinions of the expert witness are based:(e) state the reasons for the opinions given by the expert witness:(f) specify any literature or other material used or relied on in support of the opinions expressed by the expert witness:(g) describe any examinations, tests, or other investigations on which the expert witness has relied and identify, and give details of the qualifications of, any person who carried them out.4 If an expert witness believes that his or her evidence or any part of it may be incomplete or inaccurate without some qualification, that qualification must be stated in his or her evidence.5 If an expert witness believes that his or her opinion is not a concluded opinion because of insufficient research or data or for any other reason, this must be stated in his or her evidence.Duty to confer6 An expert witness must comply with any direction of the court to—(a) confer with another expert witness:(b) try to reach agreement with the other expert witness on matters within the field of expertise of the expert witnesses:(c) prepare and sign a joint witness statement stating the matters on which the expert witnesses agree and the matters on which they do not agree, including the reasons for their disagreement.7 In conferring with another expert witness, the expert witness must exercise independent and professional judgment, and must not act on the instructions or directions of any person to withhold or avoid agreement.[19] As Mr Waalkens pointed out, the requirements of the code of conduct reflect a long line of common law authority: Plimpton v Spiller, National Justice Companie Naviera SA v Prudential Assurance Co Ltd (The" Ikarian Reefer"), Re J, LiverpoolRoman Catholic Archdiocesan Trustees Inc v Goldberg (No 3), R v B(T) andJonathan Karras QC "Standard Bearers".5[20] The relevant provisions of the Evidence Act 2006 are:4 Interpretation(1) In this Act, unless the context otherwise requires,—...expert means a person who has specialised knowledge or skill based on training, study, or experienceexpert evidence means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion...7 Fundamental principle that relevant evidence admissible(1) All relevant evidence is admissible in a proceeding except evidence that is—(a) inadmissible under this Act or any other Act; or(b) excluded under this Act or any other Act.(2) Evidence that is not relevant is not admissible in a proceeding.(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding....25 Admissibility of expert opinion evidence(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.5 Plimpton v Spiller (1877) 6 Ch D 412 (EWCA); National Justice Companie Naviera SA v PrudentialAssurance Co Ltd (The" Ikarian Reefer") [1993] 2 Lloyd's Rep 68 (EWHC) at 81-82; Re J, TheTimes 31 July 1990 (reported as Re R (a minor) (Experts' Evidence) [1991] 1 FLR 291 (EWHC));Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) [2001] 1 WLR 2337(EWHC); R v B(T) [2006] 2 Cr App R 22 (EWCA) at [174]-[178]; and Jonathan Karras QC "StandardBearers" [2010] 160 NLJ 318.(2) An opinion by an expert is not inadmissible simply because it is about—(a) an ultimate issue to be determined in a proceeding; or(b) a matter of common knowledge.(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.(4) If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made to the expert about the person's state of mind, then—(a) the statement of the person is admissible to establish the facts on which the expert's opinion is based; and(b) neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person.(5) Subsection (3) is subject to subsection (4).26 Conduct of experts in civil proceedings(1) In a civil proceeding, experts are to conduct themselves in preparing and giving expert evidence in accordance with the applicable rules of court relating to the conduct of experts.(2) The expert evidence of an expert who has not complied with rules of court of the kind specified in subsection (1) may be given only with the permission of the Judge.[21] The question of the relationship between the requirements of the code of conduct relating to impartiality and s 25 of the Evidence Act 2006 as to the test of substantial helpfulness was addressed by the Court of Appeal in Commissioner of Inland Revenue v BNZ Investments Ltd6 in the following terms:[22] In the New Zealand context, the question for decision is whether the proposed expert evidence will meet the tests set out in ss 7 and 25 of the Evidence Act. To the extent the Simcock/McLeod evidence is evidence of fact, it must be relevant, and to the extent it is expression of an opinion, it must be substantially helpful to the fact finder. We accept that there may be cases in which the position of the proposed expert is so lacking in independence as to make it obvious that an opinion he or she expresses in evidence will not be able to be substantially helpful, and in those6 Commissioner of Inland Revenue v BNZ Investments Ltd (2009) 19 PRNZ 553. The reference at[24] to the need to exclude legal submissions from the evidence of expert witnesses has subsequentlybeen confirmed by the Supreme Court in Penny v Commissioner of Inland Revenue [2011] NZSC 95at [32].circumstances it may be appropriate to rule out the evidence at the pretrial stage in order to avoid the costs which may otherwise be incurred in responding to it.[23] However, we do not see this case as being in that category. Rather, we see the position of Mr Simcock and Mr McLeod as advisers to (or as members of firms which have provided advice to) taxpayers facing similar litigation as a factor affecting the weight to be attributed to their evidence (to the extent it is admissible). This assessment is properly to be made by the trial Judge, in his role as fact finder.[24] Rule 9.43(2) of the recently enacted High Court Rules requires expert witnesses to comply with the code of conduct set out in Schedule 4. That code states that expert witnesses have "an overriding duty to assist the court impartially" and are not to act as advocates for the party that hasengaged them. We do not see anything in this case which presently leads us to conclude that Mr Simcock and Mr McLeod will not conduct themselves in accordance with these requirements. We accept that much of their evidence could fairly be classified as legal submission, which arguably means they are acting as advocates for the respondents (and are not complying with the code of conduct), but we see the solution to that as being the removal of the material which is, in essence, submission, rather than the disqualification of them as expert witnesses.The requirements for testamentary capacity[22] The requirements for testamentary capacity are conveniently summarised in the judgment of the Court of Appeal delivered by Baragwanath J in Woodward v Smith:7[19] The celebrated judgment of the Court of Cockburn CJ in the Queen'sBench (Cockburn CJ, Blackburn, Mellor and Hannen JJ) in Banks v Goodfellow (1870) LR 5 QB 549 remains the leading authority on testamentary capacity. We paraphrase and number the propositions stated in that case at 565-8:(1) Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will(2) It is essential to the exercise of such a power that a testator:[i] understands the nature of the act and its effects; and also the extent of the property of which he is disposing;[ii] is able to comprehend and appreciate the claims to which he ought to give effect;[iii] be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in7 Woodward v Smith [2009] NZCA 215.disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.(3) Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But[i] though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.[ii] it is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.(4) It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.(5) In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.(6) A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.(7) Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;(8) Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.(9) But if that standard is not met, he will lack capacity....Submissions for W[23] For W, Mr Waalkens submitted that the Court should not appoint S's expertwitnesses as the medical practitioners to examine W under s 100 because:(a) They had breached paragraphs 4 and 5 of the code of conduct in that they had failed to qualify the opinions expressed in their affidavits. As they had not examined W, they ought to have expressly qualified their opinions to that effect.(b) Their opinions, especially those of Dr Simcock, were expressed so emphatically that they could not been seen to be entirely independent and objective.(c) The risk of contamination (mindset or predetermination) on the part ofeach of S's expert witnesses by the fact that each had reached and articulated a firm and negative opinion with respect to the central issues in this litigation as set out in their affidavits meant that there was "a reasonable apprehension of unconscious bias" on their part which disqualified them from being appointed under s 100.(d) The fact that S's expert witnesses had not complied with the code ofconduct meant that in terms of r 9.43(3) of the High Court Rules and s 26(2) of the Evidence Act 2006 their evidence could only be given with the permission of a judge.[24] Mr Waalkens made detailed submissions relating to the three affidavits of S'sexpert witnesses which I will refer to later when considering them.[25] On the basis that the Court accepted that S's expert witnesses should not beappointed, Mr Waalkens suggested other appropriate independent specialist medical practitioners acceptable to W. In this respect he relied on the evidence of Dr Goodwin for W. Mr Waalkens submitted that the Court should "err on the side of caution" and exercise its own initiative under r 9.30(1)(b) of the High Court Rules to appoint new independent experts to examine W.Submissions for S[26] For S, Mr Miles QC pointed out first that S was seeking on order under s 100 for the examination of W by her expert witnesses. She was not asking the Court to act on its own initiative under r 9.30(1)(b) and appoint independent experts to conduct the examinations. Mr Miles then submitted that:(a) It was unarguable that S would be disadvantaged in the proceeding if her expert witnesses were not able to examine W.(b) It was unreasonable for W to choose not to be examined by them while being examined by his four experts on at least two occasions.(c) It was precisely these circumstances that s 100 was designed to deal with in order to prevent one party from skewing the litigation by refusing to be examined.(d) The case had nothing to do with "unconscious bias", but everything todo with S's specialists being able to examine W to ensure a levelplaying field and to enable the Court properly to determine the dispute.(e) In all the cases that had been cited to the Court where the person to be examined had objected to the nominated medical practitioners, the Court had made the orders for examination that had been sought. The fact that this was the first case involving the issue of testamentarycapacity was irrelevant when S's expert witnesses were reputable,well-known specialists who would clearly abide the Court order. There was no evidence that they should be disqualified from appointment. There was no reason for not allowing them to be assisted by personal examination of W.(f) As in Starr v National Coal Board, no actual bias was established. Itwas simply a matter of perception. S's expert witnesses would besubstantially more helpful to the Court if they had the opportunity to examine W personally.[27] Mr Miles also made detailed submissions relating to the affidavits of S'sexpert witnesses to show that they had complied with the requirements of the code of conduct.Submissions for CW[28] For CW, the youngest child of S and W, Ms Davenport supported the submissions of Mr Miles for S. She submitted that there was no evidence to showany lack of independence on the part of S's expert witnesses. The fact that they hadnot seen W was not sufficient to establish predetermination on their part.Affidavits of S's expert witnesses[29] There is no dispute between the parties or their experts that in order to ascertain whether a person has the requisite mental capacity to revoke a power of attorney, or to make a new one or a new will, a medical practitioner will need to assess the person concerned. In the case of assessing the testamentary capacity of persons, the medical practitioner needs to make the inquiries referred to by the Court of Appeal in Woodward v Smith.[30] Each of S's expert witnesses deposed that he was aware of the legalrequirements for testamentary capacity. They nonetheless proceeded to expressopinions on the issue of W's mental capacity without examining him. The questionis whether in doing so they breached the requirements of the code of conduct for expert witnesses in the High Court Rules and consequently disqualified themselves from appointment under s 100.[31] It is not disputed that:(a) Each of S's expert witnesses is a highly qualified, experienced andwell-respected specialist medical practitioner in his respective fieldwith the requisite "specialised knowledge or skill based on training,study, or experience" to be an "expert" witness in terms of thedefinition of that expression in s 4 of the Evidence Act 2006;(b) The affidavit evidence of each of S's expert witnesses is the evidenceof an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion in terms of thedefinition of the expression "expert evidence" in s 4 of the EvidenceAct 2006;(c) The affidavit evidence of each of S's expert witnesses is relevant to the issue in the proceeding of W's mental capacity and is thereforeadmissible under s 7 of the Evidence Act 2006; and(d) The affidavit evidence of each of S's expert witnesses is admissibleunder s 25(1) of the Evidence Act 2006 as the Court is likely to obtain"substantial help" from their opinions in the determination of theproceeding.[32] The issue is whether S's expert witnesses have failed to comply with the requirements of the code of conduct for expert witnesses, particularly paragraphs 4 and 5. To determine this issue it is necessary to consider each of the affidavits of S'sexpert witnesses in some detail.Dr Simcock's evidence[33] Turning to the affidavit of Dr Simcock, he attached his curriculum vitae and referred to his current roles in relation to neurology before setting out the questions on which his opinion had been sought. He then deposed:5. I have given advice on testamentary capacity on several occasions.It is usual to examine a person whose mental capacity is suspect but I have not been able to do this in the case of [W]. I understand that either he is not willing to submit himself to me for examination or his advisers are not willing to allow me to examine him.6. The opinions that I give this affidavit are therefore based upon information that I have been given.(emphasis added)[34] Dr Simcock then set out in detail the information on which he had made hisassessments of W's mental capacity and deposed that:9. In making my assessments I have been asked to assume that the evidence which the various witnesses have given in their affidavits is factually correct.[35] After stating that he was familiar with the code of conduct and agreed to comply with it and after referring to the requirements of the law of testamentary capacity he set out the ways by which neurologists and others assess mental capacity. He referred to the standardised forms for quick assessments, which generally involve asking questions of general knowledge, memory, calculation and orientation, and theneed in some cases to obtain a neuropsychological assessment to assess a person'scognitive abilities. This assessment would involve further separate tests.[36] Dr Simcock then deposed:23. When I am asked to assess testamentary capacity I usually focus particularly on whether a person knows his/her assets; the people who might be expected to receive a benefit under the will; and the factors that would typically guide the will-maker to decide to leave property to one person rather than another.[37] Dr Simcock then referred to the various medical reports annexed to S'saffidavit which he had read. He summarised these reports in some detail in his affidavit. Dr Simcock then recorded his opinion as follows:42. As a result of my reading of the various medical reports to which I have referred, and the affidavits that I recorded at the outset of this affidavit, I have reached the following conclusions.[38] He continued :43. One of the important elements of the test to determine testamentary capacity is to assess knowledge of assets. I consider that [W] has an impairment of memory which has prevented him from having a sufficient knowledge of his assets. In saying this I have in mind a number of factors including the following: His inability to recall his income. His inability to remember various property assets. His inability to remember how much money he had. His belief that he did not have enough money to pay for his medication. His inability to remember the existence of substantial tax losses. (A knowledge of liabilities is as important as a knowledge of assets). His inability to recall the property in [ABC] which was the focus of the initial [XYZ] success....45. I consider that [W] has a disorder of the mind (behaviour) with limited insight in that he is not able to make a sound assessment of the people to whom he should dispose his property...46. I am also of the opinion that it cannot be said that [W] is free of any disorder of the mind which would pervert his sense of right. The evidence that I have seen shows that he has impaired memory, and that he is unable to ascertain when he has been conned with regard to financial transactions. It was demonstrated as far back as 2003 that [W] had major impairment of executive function and, with the progressive nature of the cerebrovascular disease, I consider that he does not have testamentary capacity and has not had it since at least 2009....51. It seems clear from this incident that [W] did not understand the nature of his decision to cancel the power of attorney relating to his personal welfare.[39] In respect of the question of granting a power of attorney, Dr Simcock concluded that W lacked the understanding and knowledge required to do so. Hereached similar conclusions in respect of W's ability to give instructions as to thedissolution of his marriage and the issue of relationship property litigation.[40] Mr Waalkens for W strongly criticised Dr Simcock for failing to qualify his"emphatic opinions" as to W's lack of mental capacity. Mr Waalkens submitted thatDr Simcock ought to have made it clear that, as required by paragraphs 4 and 5 of the code of conduct for expert witnesses, his opinions were provisional or qualified because he had had no opportunity to examine W. In Mr Waalkens' viewDr Simcock's affidavit showed a mindset of such a nature that there was a risk orperception that the outcome of an examination by Dr Simcock of W would be unsatisfactory.[41] Having considered Dr Simcock's affidavit carefully, I do not accept that he has breached the code of conduct for the following reasons (which reflect in part the submissions of Mr Miles for S):(a) The affidavit demonstrates that Dr Simcock recognised his overriding duty to assist the Court impartially on matters within his area of expertise and that he was not to be an advocate for S. He has therefore complied with his duty to the court as set out in paragraphs 1 and 2 of the code of conduct. Mr Waalkens did not submit that he had failed to do so.(b) The affidavit of Dr Simcock also complied with the requirements of paragraph 3(a) to (e) of the code of conduct in that he acknowledged that he had read the code of conduct and had agreed to comply with it. He stated his qualifications as an expert; the issues that he addressed and that the evidence was within his area of expertise; the facts and assumptions on which his opinions were based; and the reasons for his opinions. Again Mr Waalkens did not suggest that Dr Simcock had failed to comply with these requirements.(c) As required by paragraphs 4 and 5 of the code of conduct, Dr Simcock referred expressly to the fact that he had not examined W and that in assessing the mental capacity of a person he would usuallydo so. It is clear from Dr Simcock's affidavit that the refusal of W to make himself available for examination meant that Dr Simcock was forced to base his opinions on the other evidence, including the medical reports, referred to in his affidavit. Mr Waalkens did not submit that in these circumstances Dr Simcock ought not to have expressed any opinion. The submission was rather that he had failed to qualify his opinions adequately. I do not accept that he did in fact fail to do so.(d) Dr Simcock reached his opinions as set out in his affidavit on the basis of the evidence that was available to him. Not being able toexamine W personally, he was unable to do anything else. His opinions are clear, but nothing is added to that view by describingthem as "emphatic".(e) I agree with Mr Miles that Dr Simcock's evidence will besubstantially more helpful in terms of s 25(1) of the Evidence Act 2006 if he is permitted to examine W.Dr Finucane's evidence[42] Turning next to the affidavit of Dr Finucane, he also attached his curriculum vitae and referred to the matters on which his opinion had been sought. He also set out the information on which his opinions were based and stated that he proceeded on the assumption that the evidence in the affidavits was accurate. After stating that he had read the code of conduct and that he had complied with it, Dr Finucane then summarised the medical evidence that he had seen relating to W. He then referred to the requirements for dementia, the law relating to testamentary capacity and the relevant evidence, before concluding:29. I consider that [W's] testamentary capacity is in serious doubtdue to the demonstrated impairment of memory, impairment of executive function, vulnerability to coercion, inability to recall his assets, inability to understand the significance of the loss of tax losses, inability to formulate a will, and other factors. I consider that a thorough evaluation of his mental condition would be required before the validity of any changes to his will should be accepted.(emphasis added)[43] Dr Finucane reached similar conclusions in respect of the mental capacity of W to revoke his powers of attorney, to grant a new power of attorney, to give instructions for the dissolution of his marriage and to issue relationship property litigation.[44] Although Mr Waalkens criticised Dr Finucane's affidavit for reasons similar to those advanced in respect of Dr Simcock's affidavit, he accepted that theconclusion reached by Dr Finucane in paragraph 29 of his affidavit was qualified and provisional. I agree. In my view it is clear that Dr Finucane's affidavit compliedwith the requirements of the code of conduct for expert witnesses, particularly paragraphs 4 and 5. I therefore do not consider that he breached the code of conduct.Dr McIvor's evidence[45] Turning next to the affidavit of Dr McIvor, he too attached his curriculum vitae and described his experience in assessing mental capacity and the questions he had been asked to provide an opinion on. He then set out the affidavits that he had read and stated that his opinions were based on the presumption that the evidence which the various witnesses had given in their affidavits was accurate. He referred to the fact that he had previously assessed W on two occasions in March 2010. He too said that he had read the code of conduct and confirmed that he had complied with it. He summarised the medical evidence which he had read and the assessmentsof W in March 2010. He then expressed his opinion as to W's mental capacity basedon the medical information and his earlier examinations of W. On the issue of W'stestamentary capacity Dr McIvor said:22. In my opinion it is probable (i.e. more likely than not) that [W] did not have testamentary capacity around the time that a Will was made several weeks ago.[46] Dr McIvor reached similar conclusions and expressed similar opinions on thequestions of the revocation of W's powers of attorney, the granting of a new power of attorney, the giving of instructions for the dissolution of his marriage and the issue of relationship property litigation.[47] Having considered Dr McIvor's affidavit carefully, I do not accept that he hasbreached the code of conduct in any respect. The fact that he had examined W on two occasions in March 2010 for the purpose of assessing whether or not he had dementia meant that it was not necessary for him to qualify his opinion on the basis that he had not done so.Conclusions[48] In my view therefore there is no reasonable basis for W's objections to the appointment of S's expert witnesses as medical practitioners for the purpose of the examinations under s 100(1). As in Starr v National Coal Board, there was no attackon their professional competence or personal integrity. I do not accept that the affidavits that they have provided are in breach of the code of conduct or that there is any reasonable basis for concluding in advance that they will fail to comply with the code of conduct in providing further evidence following their examinations of W. The objections are not soundly based and the just determination of the case would not be prejudiced by making the order sought. On the contrary, it is S's case thatwould be disadvantaged if her expert witnesses were not able to examine W in the same way as his experts have been able to. I have therefore reached the same conclusion as was reached in all the other cases, including Starr v National Coal Board. I do not consider that the affidavits of S's expert witnesses establish predetermination or "any reasonable apprehension of unconscious bias" on their part.[49] There is no reason to suppose that S's expert witnesses will not comply withthe code of conduct when they provide their further affidavit evidence to the Court after they have examined W and taken into account all the evidence for W, including the affidavit evidence from W's expert witnesses. In complying with their overridingduty to assist the Court impartially and to avoid being advocates for S, they would be expected to consider whether they should maintain their original opinions in light of their examination of W and all the evidence for W. There is no evidence before the Court to suggest that they would not do so.[50] If, after examining W and considering the evidence for W, S's expertwitnesses decide to maintain their original opinions, they would be expected when complying with the code of conduct to state their reasons for doing so and their reasons for disagreeing with W's expert witnesses.[51] Furthermore, it should be remembered that, while in terms of s 25(2)(a) of the Evidence Act 2006 the experts are entitled to assist the Court by expressing opinionson the issue of W's mental capacity, that issue will ultimately be determined by the Court itself after reading all the affidavit evidence and after hearing from the witnesses who are called for cross-examination on their affidavits. In the event of disagreement between the experts for S and W, the Court will have the benefit of seeing and hearing all the respective experts being cross-examined by leadingcounsel and the Court itself will also be able to question the witnesses. In this waythe just determination of S's proceeding should be ensured.[52] For these reasons I do not accept the submission of Mr Waalkens for W that new independent experts should be appointed to examine W. To do so would leaveW's expert witnesses, who have examined W, at a potentially significant advantageover S's expert witnesses, who have not had that opportunity. That outcome woulddefeat the purpose of s 100 in a case where the objections to the proposed medical practitioners have not been shown to be soundly based.Application for examination by a neuropsychologist[53] In addition to an order under s 100(1) for the examination of W by S's expertwitnesses, S seeks an order that W be examined by a neuropsychologist. The order is sought because both Dr Simcock and Dr Finucane have referred in their affidavits (paragraphs 16 and 45 respectively) to the desirability of obtaining an up-to-date neuropsychological assessment of W similar to that provided by Mr James Cunningham in April 2003. Testing by a neuropsychologist is regarded as animportant tool for the assessment of the extent of a person's cognitive function.[54] Mr Miles for S accepted that the Court had no jurisdiction to make an order under s 100(1) for W to be examined by a neuropsychologist because aneuropsychologist is not a "medical practitioner" under the Health PractitionersCompetence Assurance Act 2003. That Act provides in s 159 that:Reference to medical practitioners in other enactmentsEvery reference in any enactment to a medical practitioner or registered medical practitioner or duly qualified medical practitioner must, unless a different intention appears, be taken to be a reference to a person who is, or is deemed to be, registered under this Act with the Medical Council of New Zealand and who is practising medicine in accordance with his or her scope of practice.There was no dispute that a neuropsychologist is not a "medical practitioner" under that Act and that no different intention appeared in s 100(1) of the Judicature Act1908. There was also no dispute that the reference to a "medical practitioner namedin the order" precluded delegation by that person of the total examination function toanother person such as a partner: McGechan on Procedure.8[55] Faced with these difficulties, Mr Miles submitted in the alternative that:(a) The reference to examination by a medical practitioner under s 100(1) should be construed so as to permit the named medical practitioner(s) to obtain such assistance from clinical psychologists, radiographers, physiotherapists and others to complete a proper examination in accordance with established medical practice: McGechan on Procedure.9(b) The Court should exercise its inherent jurisdiction to make the order sought: cf Pickard v Ambrose.10[56] In support of these submissions, Mr Miles pointed out that a medical practitioner frequently requires the assistance of other professionals to diagnose a patient. Examples mentioned were radiographers, who take X-rays or MRI scans, to assist an orthopaedic surgeon's assessment of a person's mobility, and a laboratorytechnician, who provides the results of blood tests to assist a medical practitioner inthe diagnosis of a patient's condition. Mr Miles submitted that a report from a neuropsychologist is similarly necessary to assist a neurologist's overall assessmentof the cognitive function of a patient and that testing by a neuropsychologist would not constitute delegation by the medical practitioner in this case.[57] Mr Waalkens submitted for W that the Court should not make the order sought for examination by a neuropsychologist because:(a) An assessment by a neuropsychologist, which could take up to four hours, was both intrusive and substantial and therefore not at all analogous to the examples given of medical practitioners having assistance from X-rays or blood tests.8 McGechan on Procedure (looseleaf ed, LexisNexis) at [J100.04].9 At [J100.04].10 Pickard v Ambrose HC Wellington CIV-2003-091-143, 14 April 2008, at [49](c) to [50].(b) Psychometric testing by a neuropsychologist would be akin to a delegation of the power to order a medical practitioner to undertake an examination. After conducting the testing, the psychologist would be required to reach his or her own opinion or assessment as to what the testing revealed.(c) No such psychological testing is necessary for assessing testamentarycapacity. This point was made by W's expert, Dr Goodwin, andDr Simcock recognised the limited use of the testing in this respect. The appointed medical practitioner would be able to do the requisitetesting: cf Robin Jacoby and Peter Steer "How to assess capacity to make a will" British Medical Journal, and Kenneth I Shulman,Carmelle Peisah, Robin Jacoby, Jeremia Heinik and Sanford Finkel,"Contemporaneous assessment of testamentary capacity" InternationalPsychogeriatrics.11(d) Accordingly, an order for W to undertake further neuropsychological testing would be unreasonable.[58] Mr Waalkens also submitted in the alternative that, if neuropsychological testing were ordered, it should occur on a separate occasion from any independent medical examination to ensure that W was not subject to lengthy examinations on the same day.[59] I am not prepared at this stage to exercise any inherent jurisdiction the Court may have to make an order that W be examined by a neuropsychologist. The existence of any inherent jurisdiction to do so must be at least doubtful in the face of the express provisions of s 100(1): cf McGechan on Procedure.12 In Pickard v Ambrose, relied on by counsel for S, no objection was taken to the appointment of aneuropsychologist so the reference by Associate Judge Gendall to the Court'sinherent jurisdiction was obiter.11 Robin Jacoby and Peter Steer "How to assess capacity to make a will" [2007] BMJ 335 at 156; andKenneth I Shulman, Carmelle Peisah, Robin Jacoby, Jeremia Heinik and Sanford Finkel"Contemporaneous assessment of testamentary capacity" (2009) 21:3 International Psychogeriatrics433 at 437.12 McGechan on Procedure (looseleaf ed, LexisNexis) at [J16.01] ff.[60] But I accept the submission for S that, in carrying out their examinations under s 100(1), named medical practitioners are entitled to obtain assistance from such other health professionals as may be necessary for them to complete a proper examination in accordance with established medical practice. This approach to the interpretation of s 100(1) is consistent with the purpose of the provision which is to ensure that the named medical practitioners have such necessary assistance. It would be illogical and impractical to construe s 100(1) in a manner which deprived them of this assistance.[61] This approach to the interpretation of s 100(1) is reinforced by s 100(4)which requires the person the subject of an order for examination to "do all things reasonably requested" by the medical practitioner for the purposes of the examination.[62] This approach is also consistent with the general law relating to expert witnesses which recognises that they may need to rely on assistance provided by other persons: Cross on Evidence.13 The need for an expert to do so is reflected in paragraph 3(g) of the code of conduct for expert witnesses which requires an expert to:describe any examinations, tests, or other investigations on which the expert witness has relied and identify, and give details of the qualifications of, any person who carried them out.[63] This approach means that, if Dr Simcock and/or Dr Finucane decide that it is necessary for them to have W tested by a neuropsychologist in order for them to complete their examinations and assessments of W's mental capacity and to reachtheir opinions, then they may arrange for that testing to be carried out for that purpose. In making their decisions, Dr Simcock and Dr Finucane will no doubt consider the opinion of Dr Goodwin to the contrary and the views expressed in the medical journal articles cited by counsel for W.[64] If Dr Simcock and/or Dr Finucane decide that a neuropsychologist should beretained to test W for them, then they should in my view accept W's preference,conveyed in the memorandum of Mr Waalkens dated 6 December 2011, that13 Cross on Evidence (looseleaf ed, LexisNexis) at [EVA25.10].Mr Webb rather than Mr Cunningham be retained. It is desirable that this testing be undertaken by an independent neuropsychologist in whom both parties have confidence. While Mr Miles for S was content to leave it to Dr Simcock and Dr Finucane to decide between Mr Webb and Mr Cunningham, I consider that in thisinstance it would be advantageous for W's preference to be accepted.[65] Dr Simcock and Dr Finucane may not delegate the task of reaching their opinions to the neuropsychologist, but they may take into account theneuropsychologist's report on his or her testing of W in reaching their opinions. In providing their further affidavit evidence to the Court they will also need to comply with the requirements of paragraph 3(g) of the code of conduct.[66] I do not consider that testing by a neuropsychologist is likely to be significantly more intrusive or substantial than assistance provided by other health professionals such as radiographers (e.g. MRI scans) and laboratory technicians. No question of the rights to refuse medical experimentation or treatment in terms of ss 10 and 11 of the New Zealand Bill of Rights Act 1990 arises: cf Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary.14 I am also confident that Dr Simcock and Dr Finucane would ensure that any necessary testing by a neuropsychologist was carried out at a separate time from their examinations of W.[67] The question whether, if a neuropsychologist is retained, he would also need to be called to give evidence at the trial may need to be given further consideration.15Conditions[68] In respect of the order to be made under s 100(1), W sought the following conditions:(a) The time, date and place of the assessments be at his convenience and agreed with him;14 cf Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (LexisNexis, Wellington, 2008) at [11.6.18]-[11.6.19] and [11.8.4]-[11.8.6].15 Cross on Evidence (looseleaf ed, LexisNexis) at [EVA25.10].(b) He be permitted to have a doctor present with him at the assessments, with that doctor to be paid for by S;(c) No other person be present;(d) S (having sought that he be assessed) pay for the assessment to be carried out;(e) The assessment be for a period no longer than 120 minutes;(f) Any notes or documents created by the medical practitioners during the assessment to be provided to him together with any documents that have been relied upon by them;(g) A recording be taken of the consultation and a copy be provided to him; and(h) A copy of the reports of any experts who examine him pursuant to the order of this Court be provided to him and to the Court.[69] Aspects of a number of these conditions ((b), (d), (f)) were initially opposed by S, but by the end of the hearing most of the issues relating to the conditions had been resolved so that I am able to summarise the position reached.[70] As required by s 100(1), the times, dates and places of the assessments by S'sexpert witnesses will need to be specified in the order of the Court. Bearing in mind the need for the parties to arrange the necessary appointments with these specialists at times convenient for them and W, leave will be reserved for counsel to file a joint memorandum advising the Court of the details to be included in the Court's formalorder.[71] Although it was submitted for S, in reliance on evidence from Dr Simcock and the decision of the English Court of Appeal in Hall v Avon Area Health Authority(Teaching),16 that W should not be permitted to have a doctor present with him at the assessments, it was also conceded that in terms of s 100(2) he was probably entitled to do so. This concession was properly made. The language in s 100(2) is clear and the decision in Hall is distinguishable on the ground that there is no equivalent statutory provision in England.[72] There was no dispute that no other person should be present at the assessments.[73] There was, in the end, no dispute that in terms of s 100(3) S would need tomeet W's expenses of and incidental to the examinations, including the expenses of having a medical practitioner chosen by him attend the examinations.[74] The period of the assessments should be left to the good sense andprofessionalism of S's expert witnesses. I record, however, that it was accepted thatit was unlikely that they would exceed 120 minutes each.[75] It was agreed, on a reciprocal basis, that any notes or documents created byS's expert witnesses during their assessments should be provided to W together withany documents that have been relied upon by them. As already noted, they will need to take the latter step in order to comply with the requirements of the code of conduct.[76] There was no dispute that a recording should be taken of each consultation and copies provided to W.[77] As required by r 9.31(a) and (b) and r 9.32(1) of the High Court Rules, copiesof the reports of S's expert witnesses are to be provided to the Court, S and W. Thereports may be provided in the form of affidavits in the proceeding. The parties are to advise in their joint memorandum the time to be specified in the formal Court order for the purpose of r 9.31(a).16 Hall v Avon Area Health Authority (Teaching) [1980] 1All ER 516 (EWCA).Discovery[78] For completeness, I record that the parties appeared to have resolved thediscovery issues raised in S's interlocutory application. Leave is reserved for the parties to advise the Court in their joint memorandum whether any issues remain for determination or whether any formal orders are required.Result[79] The interlocutory application by S is granted to the extent that there will be an order under s 100(1) of the Judicature Act 1908 that:(a) For the purpose of assessing the mental capacity of W, he submit himself to examination by Dr Simcock, Dr Finucane and Dr McIvor at times and places to be specified in the order;(b) The times and places to be specified in the order for the examinations are to be advised by counsel for the parties by way of joint memorandum;(c) The order for examination is subject to the conditions referred to in [70] to [77] above; and(d) The times to be specified in the order for the provision of the reports of Dr Simcock, Dr Finucane and Dr McIvor are to be advised by counsel for the parties in their joint memorandum.[80] There will not be an order of the Court that W submit himself to examination by a neuropsychologist, but, if Dr Simcock and/or Dr Finucane decide that it is necessary for them to have W tested by a neuropsychologist in order for them tocomplete their examinations and assessments of W's mental capacity, then they mayarrange for that testing to be carried out for that purpose by Mr Webb.[81] As the proceeding does not seem to have been allocated to a costs category and as I did not hear from the parties on the questions of costs, costs on thisinterlocutory application are reserved. If counsel wish the question of costs to be resolved before trial, counsel for S may file a memorandum by 22 December 2011 and counsel for W may respond by 26 January 2012.[82] I note that the question of costs for Ms Davenport as counsel for CW is addressed in the minute of Lang J dated 14 September 2011 at [3].____________________D J White J