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Expert evidence

Single joint experts

Changes to Part 35

50th changes to the Civil Procedure Rules – PDs

These changes, which came into force on 1 October 2009, include a number of changes to PD 35 in relation to expert evidence. In particular paragraph 7 sets out criteria for determining whether or not a single joint expert should be appointed. Paragraph 7 is in the following terms:
    "When considering whether to give permission for the parties to rely on expert evidence and whether that evidence should be from a single joint expert the court will take into account all the circumstances in particular, whether:
      (a) it is proportionate to have separate experts for each party on a particular issue with reference to—
        (i) the amount in dispute;
        (ii) the importance to the parties; and
        (iii) the complexity of the issue;
      (b) the instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts;
      (c) expert evidence is to be given on the issue of liability, causation or quantum;
      (d) the expert evidence falls within a substantially established area of knowledge which is unlikely to be in dispute or there is likely to be a range of expert opinion;
      (e) a party has already instructed an expert on the issue in question and whether or not that was done in compliance with any practice direction or relevant pre-action protocol;
      (f) questions put in accordance with rule 35.6 are likely to remove the need for the other party to instruct an expert if one party has already instructed an expert;
      (g) questions put to a single joint expert may not conclusively deal with all issues that may require testing prior to trial;
      (h) a conference may be required with the legal representatives, experts and other witnesses which may make instruction of a single joint expert impractical; and
      (i) a claim to privilege makes the instruction of any expert as a
      single joint expert inappropriate."

Meetings with single joint experts

Peet v Mid-Kent Healthcare Trust
[2001] EWCA Civ 1703

A single joint expert should not attend any meeting or conference that is not a joint one, unless all the parties have first agreed in writing.

In the normal way the report prepared by a single joint expert should be the evidence in the case. It should not therefore usually be necessary for that report to be amplified or tested in cross-examination. If this does occur such amplification or cross-examination should be restricted as far as possible.

Lord Woolf, para 28:
    "In the normal way, therefore, there should be no need for that report to be amplified or tested by cross-examination. If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen. The court may permit that to happen either prior to the hearing or at the hearing. But the assumption should be that the single joint expert's report is the evidence. Any amplification or any cross-examination should be restricted as far as possible. Equally, where parties agree that there should be a single joint expert, and a single joint expert produces a report, it is possible for the court still to permit a party to instruct his or her own expert and for that expert to be called at the hearing. However, there must be good reason for that course to be adopted. Normally, where the issue is of the sort that is covered by non-medical evidence, as in this case, the court should be slow to allow a second expert to be instructed.".

Buxton LJ, paras 37 and 38:
    "Counsel for the appellant said that one reason why a conference such as he sought was desirable (indeed in his view required) was not in order to persuade the expert to improve his or her report in favour of the claimant, but to enable the claimant's lawyers the better to assess the strength and range of the expert's report: with a view to their being able better to advise their client and to fulfil their duty to report to the court about the reasonableness of any proposed settlement, it being borne in mind that this was an infant's case.

    That, as it seemed to me, was the only even arguable practicable reason why such a conference should take place. But the argument is, in my view, clearly unsound. The machinery of the Civil Procedure Rules enables clarification of the report to be sought by way of questions under CPR Part 35.6. That process, together with informed reading of the report, should be amply sufficient to enable advisers with any experience of this area of litigation to judge the likely outcome of the case in the context of the expert's report. In my view, that process of reflection upon written material is likely to be much more reliable than probing viva voce at a conference. The desire for the latter process to be introduced into this part of the procedure reveals a scepticism about the efficacy of written procedure and clarification of issues on paper, which represents what perhaps was an earlier position of English law that the Civil Procedure Rules have gone a long way towards displacing."

Second Expert

Hajigeorgiou v Vasiliou
[2005] EWCA Civ 236

The court has the power to give permission to a party to rely on a second (replacement) expert but it should usually only exercise that power on condition that the report of the first expert is disclosed. That was (correctly) decided in Beck v Ministry of Defence [2003] EWCA 1043. This is so even though reports prepared for the purposes of litigation are, until they are disclosed, protected by privilege.
    "The principle established in Beck is important. It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular. Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness A in place of expert witness B, the court has the power to give permission on condition that A's report is disclosed to the other party or parties, and that such a condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court's permission to rely on a substitute expert, it will be required to waive privilege in the first expert's report as a condition of being permitted to do so. (Para 29).

    A question that was not considered in Beck is whether the condition of disclosure should relate only to the first expert's final report, or whether it should also relate to his or her earlier draft reports. In our view, it should not only apply to the first expert's "final" report, if by that is meant the report signed by the first expert as his or her report for disclosure. It should apply at least to the first expert's report(s) containing the substance of his or her opinion.

    In the present case, the first expert had produced a "draft interim report". It is reasonable to infer from the defendant's wish to change experts and refusal to provide an explanation that the draft interim report contains the substance of the first expert's opinion on some or all of the remaining issues in the case. In these circumstances, we consider that the judge was entirely justified in deciding that, if the defendant needed the permission of the court to rely on the evidence of Mr Negus, it should be a condition that he disclose to the claimant Mr Watson's draft interim report." (Paras 30 and 31)

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