Evidence and disclosure - Single joint experts and expert discussions

Learning Outcomes

This article outlines the rules and procedures relating to the use of single joint experts (SJEs) and expert discussions in civil litigation under the Civil Procedure Rules (CPR). For the SQE1 assessment, you will need to understand when an SJE might be appointed, the duties experts owe, and the process for discussions between experts, including the creation of joint statements. This knowledge will enable you to advise clients on expert evidence strategy and apply the relevant CPR provisions to assessment scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the court's approach to expert evidence, particularly in managing costs and promoting efficiency through single joint experts and expert discussions. Your understanding should cover:

  • The court's power to direct the use of a single joint expert (CPR 35.7).
  • The overriding duty of experts to the court (CPR 35.3).
  • The purpose and procedure for discussions between experts (CPR 35.12).
  • The requirements and status of joint statements prepared by experts following discussions (CPR 35.12(3)).
  • The potential costs consequences relating to expert evidence and discussions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under CPR Part 35, to whom does an expert witness owe their primary duty?
    1. The party instructing them
    2. The court
    3. The party paying their fees
    4. Both parties jointly
  2. Which of the following factors will the court consider when deciding whether to direct the use of a single joint expert?
    1. The value of the claim
    2. The complexity of the issue requiring expert evidence
    3. Whether the parties have already instructed their own experts
    4. All of the above
  3. What is the primary purpose of discussions between experts under CPR 35.12?
    1. To decide which expert's opinion is correct
    2. To prepare questions for cross-examination
    3. To identify and narrow the issues on which they agree/disagree
    4. To agree on the final amount of damages

Introduction

Expert evidence plays an essential role in civil litigation where technical or specialist knowledge is required to assist the court in understanding complex issues. The Civil Procedure Rules (CPR) provide a framework for managing expert evidence, aiming to ensure it is restricted to that which is reasonably required to resolve the proceedings (CPR 35.1). Two key mechanisms within this framework are the use of single joint experts (SJEs) and structured discussions between experts instructed by opposing parties. This article examines the rules governing SJEs and expert discussions, highlighting their practical implications for case management and costs.

Single Joint Experts (SJEs)

An SJE is an expert instructed to prepare a report for the court on behalf of two or more parties involved in the proceedings. This approach contrasts with the traditional method where each party instructs their own expert.

Key Term: Single Joint Expert (SJE)
An expert instructed to prepare a report for the court on behalf of two or more of the parties (including the claimant) to the proceedings (CPR 35.2(2)).

Appointment of an SJE

The court has the power to direct that evidence on a particular issue should be given by an SJE (CPR 35.7(1)). This power reflects the court's duty under the overriding objective to deal with cases justly and at proportionate cost. The court will consider various factors when deciding whether to direct the use of an SJE, including:

  • The proportionality of instructing separate experts relative to the amount in dispute, the importance of the issue, and its complexity (PD 35 para 7(a)).
  • Whether instructing an SJE is likely to be faster and more cost-effective (PD 35 para 7(b)).
  • The nature of the issue (liability, causation, or quantum) (PD 35 para 7(c)).
  • Whether the issue falls within a substantially established area of knowledge where a range of opinion is unlikely (PD 35 para 7(d)).
  • Whether a party has already instructed an expert (PD 35 para 7(e)).

Parties are encouraged to agree on the appointment of an SJE where appropriate. If they cannot agree, the court may select the expert from a list prepared by the parties or direct an alternative selection method (CPR 35.7(2)).

Worked Example 1.1

In a fast-track claim valued at £18,000 concerning allegedly defective plumbing installation, the main technical issue relates to the standard of workmanship. Both parties indicate in their directions questionnaires that they wish to rely on expert plumbing evidence. What approach is the court likely to take regarding expert evidence?

Answer: The court is likely to direct that the plumbing evidence be given by a single joint expert. Fast-track cases generally favour the use of SJEs for reasons of proportionality and cost-effectiveness (PD 28 para 3.9(4)), especially where the issue relates to a standard assessment like workmanship quality.

Instructions and Reporting

Instructions to an SJE should ideally be agreed jointly by the parties. If agreement cannot be reached, the parties should provide separate instructions, which should then be copied to the other instructing parties (PD 35 para 9.8). The SJE's report is addressed to the court and sent simultaneously to all instructing parties.

Questioning an SJE

Any party can put written questions to the SJE about their report within 28 days of service (CPR 35.6(2)). These questions must be proportionate and for clarification purposes only. The SJE's answers are treated as part of their report.

Advantages and Disadvantages

Using an SJE can lead to significant cost savings and reduce the adversarial nature of expert evidence. However, a party may feel that the SJE's opinion does not fully reflect the nuances of their case or may disagree with the conclusions. In such situations, the party may seek the court's permission to instruct their own expert, but permission will only be granted if there is a good reason, especially in lower-value claims.

Exam Warning

Remember that while the use of an SJE is encouraged, particularly in lower-value or less complex cases, it is not mandatory in all circumstances. The court retains discretion, and factors like the complexity of the issue or a significant divergence in potential expert opinion might justify separate experts, especially in multi-track cases.

Expert Discussions

Where parties have instructed separate experts, the court often directs those experts to hold discussions.

Key Term: Expert Discussion
A meeting or communication between experts instructed by different parties in proceedings, aimed at identifying and narrowing issues and reaching agreed opinions where possible (CPR 35.12).

Purpose of Discussions

The primary purposes of expert discussions, as outlined in CPR 35.12(1), are for the experts to:

  • Identify and discuss the expert issues in the proceedings.
  • Reach agreed opinions on those issues where possible.
  • If they cannot reach agreement on an issue, narrow the scope of disagreement.

Discussions are intended to assist the court by clarifying the expert evidence and focusing on the key points of contention, thereby saving court time and costs.

Procedure

The court may specify the issues the experts must discuss. Parties and their legal representatives should cooperate to produce an agenda for the discussion if necessary, ensuring it is focused and neutral (PD 35 para 9.2 & 9.3). Legal representatives must not attend the discussions unless all parties agree or the court orders it (PD 35 para 9.4). Importantly, the content of the discussions is generally "without prejudice" and cannot be referred to at trial unless the parties agree (CPR 35.12(4)).

Key Term: Without Prejudice
A legal principle meaning that statements made in a genuine attempt to settle a dispute cannot usually be put before the court as evidence of admissions against the interest of the party that made them.

Joint Statement

Following their discussions, the experts must prepare a joint statement for the court (CPR 35.12(3)). This statement must record:

  • The issues on which they agree.
  • The issues on which they disagree, including a summary of their reasons for disagreement.

Key Term: Joint Statement
A written statement prepared by experts following their discussions, detailing the issues on which they agree and disagree, submitted to the court (CPR 35.12(3)).

The joint statement must be signed by the experts within 7 days of the discussion and provided to the parties within 14 days of signing (PD 35 para 9.6). The experts do not need the parties' authority to sign the statement (PD 35 para 9.7). Any agreement reached between experts during discussions does not bind the parties unless they expressly agree to be bound (CPR 35.12(5)).

Revision Tip

The joint statement is an essential document. It helps the court understand the expert evidence and can significantly narrow the issues for trial. Pay close attention to its requirements and implications when advising clients or preparing for hearings.

Worked Example 1.2

In a multi-track clinical negligence claim, the Claimant (C) and Defendant (D) have each instructed their own orthopaedic expert. The court directs the experts to hold discussions and prepare a joint statement. Following discussions, the experts agree on the nature of C's injury but disagree fundamentally on whether D's actions fell below the required standard of care (breach of duty). What should the joint statement contain?

Answer: The joint statement should clearly state that the experts agree on the nature of C's injury (specifying the agreed points). It must then clearly state that they disagree on the issue of breach of duty and provide a summary of the reasons given by each expert for their differing opinions on this critical issue.

Interaction Between SJEs and Expert Discussions

It is important to note that expert discussions under CPR 35.12 are designed for situations where parties have instructed separate experts. If an SJE has been appointed for a particular issue, there would typically be no need for expert discussions on that specific issue, as there is only one expert opinion before the court. However, a case might involve both an SJE on one issue and separate experts (requiring discussions) on other issues.

Key Point Checklist

This article has covered the following key knowledge points:

  • The court can direct parties to use a Single Joint Expert (SJE) to provide evidence on a specific issue (CPR 35.7).
  • The decision to appoint an SJE considers proportionality, cost-effectiveness, and the nature of the dispute (PD 35 para 7).
  • Experts, including SJEs, owe an overriding duty to the court (CPR 35.3).
  • Parties can put written questions to an SJE for clarification (CPR 35.6).
  • Where separate experts are instructed, the court often directs them to hold discussions to identify areas of agreement and disagreement (CPR 35.12).
  • Discussions between experts are generally without prejudice (CPR 35.12(4)).
  • Following discussions, experts must prepare a joint statement for the court outlining agreed and disagreed points with reasons (CPR 35.12(3)).
  • Agreements reached between experts do not bind the parties unless expressly agreed (CPR 35.12(5)).

Key Terms and Concepts

  • Single Joint Expert (SJE)
  • Expert Discussion
  • Without Prejudice
  • Joint Statement
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