Single Joint Experts

Single joint experts in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]An order may be made, at the first case management conference or thereafter, that a single joint expert should address particular issues between the parties. Such an order would be made pursuant to Civil Procedure Rules Parts 35.7 and 35.8. Single joint experts are not usually appropriate for the principal liability disputes in a large case, or in a case where considerable sums have been spent on an expert in the preaction stage. They are generally inappropriate where the issue involves questions of risk assessment or professional competence. On the other hand, single joint experts can often be appropriate: • in low value cases, where technical evidence is required but the cost of adversarial expert evidence may be prohibitive; • where the topic with which the single joint expert’s report deals is a separate and self- contained part of the case, such as the valuation of particular heads of claim; • where there is a subsidiary issue, which requires particular expertise of a relatively uncontroversial nature to resolve; • where testing or analysis is required, and this can conveniently be done by one laboratory or firm on behalf of all parties. Where a single joint expert is to be appointed or is to be directed by the court, the parties should attempt to devise a protocol covering all relevant aspects of the appointment (save for those matters specifically provided for by Civil Procedure Rules 35.6, 35.7 and 35.8). The matters to be considered should include: any ceiling on fees and disbursements that are to be charged and payable by the parties; how, when and by whom fees will be paid to the expert on an interim basis pending any costs order in the proceedings; how the expert’s fees will be secured; how the terms of reference are to be agreed; what is to happen if terms of reference cannot be agreed; how and to whom the jointly appointed expert may address further enquiries and from whom he should seek further information and documents; the timetable for preparing any report or for undertaking any other preparatory step; the possible effect on such timetable of any supplementary or further instructions. Where these matters cannot be agreed, an application to the court, which may often be capable of being dealt with as a paper application, will be necessary. The usual procedure for a single joint expert will involve: • The preparation of the expert’s instructions. These instructions should clearly identify those issues or matters where the parties are in conflict, whether on the facts or on matters of opinion. If the parties can agree joint instructions, then a single set of instructions should be delivered to the expert. However, rule 35.8 expressly permits separate instructions and these are necessary where joint instructions cannot be agreed • The preparation of the agreed bundle, which is to be provided to the expert. This bundle must include Civil Procedure Rules Part 35, the Practice Direction supplementing Part 35 and the section 13 of the Technology and Construction Court Guide. • The preparation and production of the expert’s report. • The provision to the expert of any written questions from the parties, which the expert must answer in writing. In most cases the single joint expert’s report, supplemented by any written answers to questions from the parties, will be sufficient for the purposes of the trial. Sometimes, however, it is necessary for a single joint expert to be called to give oral evidence. In those circumstances, the usual practice is for the judge to call the expert and then allow each party the opportunity to cross-examine. Such cross-examination should be conducted with appropriate restraint, since the witness has been instructed by the parties. Where the expert’s report is strongly in favour of one party’s position, it may be appropriate to allow only the other party to cross-examine.