Acting as a Single Joint Expert
Article, Law Society Gazette – February 2012
Legal / Disputes
Catherine Rawlin discusses the various points to take into account when appointing a single joint expert. The principle of single joint experts (SJE) has been in existence for many years now but how often is it used?
The principle of single joint experts (SJE) has been in existence for many years now but how often is it used? In a straw poll conducted amongst my colleagues, it has seldom been adopted by our clients. It may be more commonly used in the types and/or sizes of cases where we are not usually appointed, so our experience may not reflect the wider picture. That aside, the categories of case where we have been appointed as SJEs are:
- Commercial litigation – where liability is the key issue and the Court is of opinion that quantum can be dealt with by a single expert
- Divorce ancillary relief – where there is a requirement to value a family business in order to quantify the divorcing couple’s assets.
- Personal injury – where a loss of earnings claim needs to be calculated
In his Review of Civil Litigation Costs: Preliminary Report published in May 2009, Lord Justice Jackson set out a proposal for the ‘presumption that all quantum experts will be instructed on a “single joint” basis, unless the Court decides that there is good reason for the individual experts to be permitted’. This proposal was not carried through to his final report. This is not surprising as, in our experience, there are a good number of cases where key issues are quantum-related and therefore parties do need their own quantum expert.
By the time his final report was published in December 2009, civil procedure rule part 35 had been amended and in Jackson’s view, ‘clear and sensible guidance has been given as to when it is appropriate to instruct a single joint expert’.
Paragraph 7 of practise direction 35 sets out the circumstances that a Court should take into account in deciding whether to appoint an SJE. These are such factors as:
- Proportionally (with reference to amount, complexity and importance)
- The cost and speed of resolving the issue i.e. will it be faster/less expensive to use SJE
- The type of issue at stake e.g. liability, causation or quantum
- Likely width of range of opinion
- Whether questions to the expert will conclusively deal with all aspects
- Whether a conference with others makes an SJE appointment impractical
- What has already happened on expert appointment(s) and privilege-related issues
These are the legal considerations, but what’s it really like to be an SJE rather than a party-appointed expert? These are some key themes that have emerged from the SJE work we have done.
1. Instructions & fees
It is much harder and more cumbersome to get two (or more) parties who are already opposed to each other in a litigation case to agree instructions and to confirm acceptance of fee estimates. This can be frustrating for the expert and often slows down the progress of the case. It is also sometimes evident that the very first step of agreeing who the expert should be has caused a time-consuming debate between parties.
As a party-appointed expert, you can talk to your instructing solicitors and gain a good understanding of the case and its status as regards timetables and the like. As an SJE, you are hampered by the need to communicate with both parties at the same time. You are therefore sometimes not aware of the progress in the case or whether, for example, the parties would like to call you to give verbal evidence. You are also isolated in the sense that you do not have another expert on the other side to debate calculations and approaches with. We find discussions with colleagues and peer review will help alleviate this to some extent, but not completely.
3. Will an SJE cover all the issues
Some parties fear that their view of the case may not be clearly or fully represented when an SJE is used rather than a party-appointed expert. In our experience, for quantum experts, it is important that the parties are clear in their instructions and the factual matrix that forms the foundation of their case. If this is so, then it is possible to calculate figures under scenarios, resulting in a range of calculation.
4. Use of SJE evidence
In most cases where we have been appointed SJE, we have found that once we have prepared our report, we are far more likely to receive CPR part 35.6 questions from the parties than when we are acting as a party-appointed expert. This makes sense as where there is an expert for each party, you would expect this kind of testing to occur expert to expert. I have given oral evidence as an SJE just once, in a divorce matter. This was a strange experience as it involved being cross-examined twice. However, counsel approached the exercise in a very respectful way!
Finally, to the key reason for use of SJEs – does it save costs? To coin a phrase, it depends. It could be argued that having only one expert doing the work, no experts meetings, joint statements or trial preparation would result in reduced costs. However, the combination of the way in which you must work as an SJE as well as the potential instruction of a shadow expert by each party may mean that, overall. Savings are limited or non-existent.
From our experience, and it may be the type of work we do, we have seen the use of SJEs become less frequent recently. It will be interesting to watch how the role develops over time and whether it becomes more popular and widely used, or whether it recedes into the background of the litigation landscape.
As appeared in Law Society Gazette, February 2012.