Summary chapter 12

CIVIL LITIGATION

Chapter 12.13.8 – The single joint expert (r 35.7)

 When appropriate?
 fast track - general approach of court, order single joint expert unless good reason not to
(para 3.9 PD 28).
 A joint expert is less likely to be ordered in a multi-track case.
 Even if court allows seperate expert evidence on issue of liability, it may order a joint expert
on any quantum issues that require expert evidence.
 PD 35, para 7 provides as follows:
 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.
 Both the Queen’s Bench Division and the Chancery Court Guides provide that:
 In very many cases it is possible for the question of expert evidence to be dealt with by a
single expert.
 Single experts are appropriate to deal with questions of quantum in cases where the primary
issues are as to liability.
 Likewise, where expert evidence is required in order to acquaint the court with matters of
expert fact, as opposed to opinion, a single expert will usually be appropriate.
 In cases where the issue for determination is as to whether a party acted in accordance with
proper professional standards, it will often be of value to the court to hear the opinions of
more than one expert as to the proper standard in order that the court becomes acquainted
with the range of views existing upon the question and in order that the evidence can be
tested in cross examination.
 Court direction
 Where the court orders a single joint expert it will usually direct that:
 (a) the parties should prepare joint instructions for the expert;
 (b) the expert’s fees should be paid jointly by the parties; and