The power
of the court to direct that expert evidence on a particular issue be given by
one expert only is one of the main changes introduced by the new Civil
Procedure Rules (CPR). Whilst the notion that the courts will promote the
appointment of single joint experts to be “shared”? by the parties and the
court is not new, the former power to do so was rarely used. The new provision
of the CPR, however, given its prominence, is expected to become a popular
measure with the courts.
What the
Rules provide
Rule
35.7(1) provides that “where two or more parties wish to submit expert
evidence on a particular issue, the court may direct that the evidence on that
issue is to be given by one expert only …”
Rule
35.7(3) states that “where the instructing parties cannot agree who should
be the expert, the court may -
(a) select the expert from a list prepared
or identified by the instructing parties; or
(b) direct
that the expert be selected in such other manner as the court may direct.”
Under Rule
35.8(1), each party may give instructions to the single joint expert; under
Rule 35.8(4), before such an expert is instructed, the court may -
(a) limit the amount that can be paid by way
of fees and expenses to the expert; and
(b) direct that the instructing parties pay
that amount into court.
Under Rule
35.8(5), unless the court otherwise directs, the instructing parties are
jointly and severally liable for the payment of the single joint expert’s fees
and expenses.
In an
Admiralty Case, (Owners of the Ship “Pelopidas”
v Owners of the Ship “TRSL Concord” 8 October 1999) Judge David Steel QC reiterated that expert evidence was
not admissible without leave of the court. If parties sought expert advice without an Order enabling
them to do so, those costs would not be recoverable. He also noted the
potential advantages of a single expert to run the software necessary to plot
the course of ships: something specific to those courts maybe, but a useful pointer to
judicial thinking in general.
However,
this may not be the case, at least in more complex matters, in every court. The
Commercial Court Guide says parties: “… should be prepared to consider the
use of single joint experts. However, cases… frequently are of a size and of a
complexity or nature such that the use of single joint experts is not
appropriate. In such cases, parties will generally be given permission each to
call one expert whom they have retained in each field requiring expert
evidence.”
Note the
references to “size” and “complexity”. The courts are still concerned about
costs and the possibility of extensive expert evidence. In simple cases one
expert may be considered enough. Great weight is given to proportionality.
In the case
of Grobbelar v Sun Newspapers Limited (TLR, 12
August 1999), Lord Justice Potter said that the trial judge now has power under
the CPR to exclude evidence (Rule 32.1(2)). This power has no express
limitation but must be exercised to deal justly with the case. Under the CPR,
dealing justly with a case includes considering whether the likely benefit of
taking a particular step justifies the cost of taking it. In Thermos
v Aladdin Sales (Chancery Division, Patents Court ILR, 13 December 1999)
the court observed that where an issue in dispute is factual and obvious, the
court is unlikely to benefit from expert evidence.
Mr Justice
Dyson, when he gave a brief “whistlestop” tour of the reforms just after they
were implemented, entitled “The Future of Civil Litigation Post Woolf or The
Official Referees in Sheep’s Clothing”, made a similar point:
“I would
tentatively suggest that the court is most likely to order a single expert
where (i) the sums at stake in the litigation are small in relation to the
costs likely to be incurred, (ii) the expertise consists of personal judgment
or “feel” derived from experience (such as valuation evidence), (iii) the
evidence which the court needs to have explained is relatively uncontroversial or
(iv) the issue is relatively peripheral to the case.”
Cost of
a single joint expert
In Kranidiotes v Paschali & Anr [2001] EWCA Civ
357, the Court of Appeal had to consider the actions of a judge who had
appointed a single joint expert to prepare a report on the market value of
shares. A fee cap of £10,000 was
set. The expert realised that the
extent of the material supplied was such that he could not prepare a report
within the fee cap and accordingly sought directions from the judge.
The judge
decided he had to achieve a fair result and also one which was proportionate to
the issues in dispute. The maximum sum
recoverable by the claimant was £80,000.
The expert suggested that his costs could amount to £70,000. Therefore, the judge decided to use his discretion
and dispense with the services of the first expert and appoint a cheaper one.
The Court
of Appeal declined to interfere with this case management decision since it
felt that the judge had not exceeded his discretion. The judge believed that
the cheaper option would still ensure that guidance could be given at trial on
the claims being made. The sum of money
in issue had not warranted a payment of substantial costs and the judge had
stressed at all times the need to achieve a fair and proportionate result
.
In an
appropriate case, the court will direct that a single joint expert should
provide evidence on whether a company claimant would be able to pay the costs
of a successful defendant, for the purpose of a security for costs application
(in Guinle v Kirreh, unreported 3 August 1999).
In March
2001, the Lord Chancellor’s Department published a report entitled “Emerging
Findings”, reviewing the changes introduced by the CPR. When focusing on the
use of the single joint expert, the report declared that the “use of single
joint experts appears to have worked well. It is likely that their use has
contributed to a less adversarial culture, earlier settlement and may have cut
costs”.
According
to the LCD report, the single joint expert has been used in 41% of the cases
where there has been expert evidence. The report does not, however, distinguish
between particular types of cases. It remains likely that in the larger, more
complex cases, even if a single expert has been appointed, the parties will
appoint their own expert to shadow the court-appointed expert, thereby not
achieving the costs saving which was part of the whole point of the change.
This has
been recognised by Lord Woolf, who, in the case of Daniels
v Walker [2000] 1 WLR 1382, said:-
“In a
case where there is a substantial sum involved, one starts, as I have
indicated, from the position that, wherever possible, a joint report is
obtained. If there is disagreement on that report, then there would be an issue
as to whether to ask questions (under CPR 35.6) or whether to get your own
expert’s report. If questions do not resolve the matter and a party, or both
parties, obtain their own expert’s reports, then that will result in a decision
having to be reached as to what evidence should be called. That decision should not be taken until
there has been a meeting between the experts involved. It may be that agreement
could then be reached; it may be that agreement is reached as a result of
asking the appropriate questions. It is only as a last resort that you accept
that it is necessary for oral evidence to be given by the experts before the
court . . .
The
great advantage of adopting the course of instructing a joint expert at the
outset is that in the majority of cases it will have the effect of narrowing
the issues. The fact that additional experts may have to be involved is
regrettable, but in the majority of cases the expert issues will already have
been reduced. Even if you have the unfortunate result that there are three
different views as to the right outcome on a particular issue, the expense which
will be incurred as a result of that is justified by the prospects of it being
avoided in the majority of cases.”
In Cosgrove & Anr v Pattison & Anr (unreported,
27 November 2000), Mr Justice Neuberger considered the above Court of Appeal
case of Daniels v Walker when allowing an appeal by the defendants that
they be permitted to instruct an expert of their own since they were unhappy
with the report prepared by the single joint expert. Amongst the relevant
factors were the facts that thousands of pounds were at stake and the hearing
was some way off. Permission was given. The judge held that whether or not to
grant permission for a separate expert depends on the following criteria -
Where the
court has directed that the evidence on a particular issue is to be given by
one expert only and there are a number of disciplines relevant to that issue,
the Practice Direction to CPR 35.7 says that a leading expert in the dominant
discipline should be identified as the single joint expert. He should prepare
the general part of the report and be responsible for annexing or incorporating
the contents of any reports from experts in other disciplines. The task of the
lead expert may be complicated by conflicting opinion evidence from the other
experts or by the lead expert disagreeing with some of the other experts’
opinions.
The opinion
of the joint expert is not binding on the parties; it may be that they will
agree that the evidence need not be given at trial or that it may be submitted
as a written report without the expert being called. However, it could be the
case that the single joint expert will be called to give oral evidence at trial
so that both parties have the opportunity to cross-examine him.
If the
single joint expert is asked questions, either in writing or under
cross-examination, then, as Lord Woolf anticipated, a party may appoint its own
expert to advise it, known as a “shadow expert”. As a shadow expert’s role is not to give evidence themselves,
they do not have an overriding duty to the court and Part 35 of the CPR does
not apply to them.
The
appointment of single joint experts has an additional advantage which may not
have been foreseen when the court rules were changed; in the case of Holmes v SGB Services Plc [LTL 19 February 2001] the
Court of Appeal allowed the claimant to postpone his trial when the
court-appointed single joint expert put forward a different explanation as to
why an accident had happened than the claimant had previously put forward. This
was done so as to give him time to amend his case to include the new
explanation. It is highly unlikely that the court would have postponed the
claimant’s trial if his own expert had produced such an explanation so close to
the trial, as the problem would then have been of the claimant’s own making.
The recent
(unreported) decision of HHJ Wilcox in A de Grouchy
Holdings Ltd v House of Fraser Stores Ltd gives a good example of the
single joint expert at work in the TCC.
Here the
expert understood his role to “put myself in the shoes of the PQS and
provide a report to the court.”
HHJ Wilcox
said of the court expert:-
“…The only expert evidence before me
is that of Mr Wishart. I judge him to
be an independent witness, who is both highly experienced and impressive. The court’?s duty is to consider his
evidence as evidence in the case in the light of the instructions he has been
given by the parties and to give it the appropriate weight after cross
examination and any testing there may be, together with all of the other
evidence there may be. Merely because a witness is a jointly instructed expert
does not mean that he is deciding the case on these issues. Nonetheless, where the approach of the
expert is careful and reasoned and where by his approach he demonstrates that
he is both an experienced and well qualified witness in the field that he is
giving evidence in, the court would have to have a very good reason for
substituting another view and for not giving considerable weight to his
evidence. It is evident in this case
that Mr Wishart was put under pressure of time. That of course can affect the
degree of care that can be given to the consideration of the technical issues. Where
it did so, Mr Wishart properly pointed that out. Where he would have
wanted substantiation, and either none was available, or incomplete
substantiation was provided, he said so and the effect upon his ascertainment
figures was apparent and clear to the court …”
February 2002 Victoria Russell