Evidence and disclosure - Single joint experts and expert discussions

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Overview

In civil litigation, managing expert evidence efficiently is key to streamlining cases and ensuring fair outcomes. This article delves into two important methods: single joint experts (SJEs) and expert discussions, guided by the Civil Procedure Rules (CPR). For SQE1 FLK1 exam candidates, understanding these ideas is vital, as they form an integral part of modern civil litigation and reflect the principles of fairness and efficiency in the English legal system.

Single Joint Experts (SJEs)

Definition and Purpose

A single joint expert (SJE) is an unbiased specialist appointed by mutual agreement of the parties or by court order to provide expertise on specific technical issues. Governed by CPR Part 35, SJEs are mainly accountable to the court rather than any instructing parties.

Appointment Considerations

Several factors influence the decision to appoint an SJE:

  1. Proportionality: Assess if using individual experts would incur excessive costs compared to the claim's value or complexity.
  2. Nature of the Issues: Determine if a single expert can address all technical aspects.
  3. Equality of Arms: Ensure that an SJE does not unfairly disadvantage a party, especially when there is a resource imbalance.
  4. Consent of the Parties: Though not decisive, agreement on an SJE is a significant consideration.

If parties struggle to agree, the court may select an expert from a proposed list as per CPR 35.7.

Advantages and Considerations

Using SJEs offers several benefits:

  • Cost Efficiency: Costs are reduced as parties share a single expert.
  • Streamlined Proceedings: A unified opinion can speed up the resolution process.
  • Consistency: Avoids conflicting expert opinions, providing the court with clear guidance.

However, there are possible drawbacks:

  • Limited Views: Relying on one expert may restrict exploration of different perspectives.
  • Pressure on SJE: The single expert carries the burden of responsibility.
  • Independence Questions: Concerns about bias may arise if a party previously interacted with the expert.

Expert Discussions

Function and Framework

Expert discussions, critical when involving multiple experts, are governed by CPR 35.12. They aim to narrow disputed issues and promote agreement, conducted on a "without prejudice" basis to ensure openness.

Objectives and Approach

The main goals of expert discussions are:

  1. Identify Issues: Highlight key technical points for resolution.
  2. Facilitate Agreement: Seek consensus on non-contentious matters.
  3. Clarify Disagreements: Define the nature and extent of differences.
  4. Align Methodology: Discuss and possibly agree on approaches to disputed issues.

The discussions generally follow a structured process:

  • Preparation: Experts review materials and prepare their positions.
  • Facilitated Dialogue: A neutral chair may guide the discussion.
  • Issue-by-Issue: Experts systematically address a pre-set agenda.
  • Documentation: Notes are taken to assist in creating the joint statement.

Written Joint Statements

After discussions, experts draft a joint statement as per CPR 35.12(3), covering:

  • Agreements: Points where consensus was reached.
  • Remaining Disagreements: Ongoing disputes and reasons.
  • Next Steps: Suggestions for further actions or studies.

Experts should resist any pressure to alter their opinions from instructing parties.

Non-Participation Consequences

Avoiding participation in expert discussions can have serious effects:

  • Costs Penalty: Courts may impose costs on non-compliant parties.
  • Weakened Evidence: The court may give less weight to the evidence of non-participating experts.
  • Delays: Non-cooperation could result in additional hearings.
  • Reputational Damage: Continual failure to engage can harm an expert's professional standing.

Application and Examples

Example 1: Construction Dispute

In a case about defective building work, an SJE structural engineer was appointed to evaluate foundation problems. The expert's report offered a unified basis for assessing damages and responsibility, streamlining the process.

Example 2: Medical Negligence Case

In a complex medical negligence scenario, expert discussions between neurologists led to consensus on the standard of care, but spotlighted a disagreement on causation, thus focusing the court on the main issue, reducing trial time and costs.

Example 3: Intellectual Property Infringement

In a patent dispute, expert discussions reduced technical issues from twelve to three key points, resulting in a more efficient trial.

Conclusion

Effective use of single joint experts and expert discussions is essential in civil litigation. These methods reflect the CPR's focus on efficiency and cooperation. For SQE1 FLK1 exam candidates, understanding these tools is crucial for both exam success and future legal practice. As emphasis on cost-effective dispute resolution continues, the value of these techniques will increase.

Key points to remember:

  1. SJEs provide a unified expert view, cutting costs and simplifying cases.
  2. Expert discussions aim to narrow issues and foster agreements between experts.
  3. Joint statements are vital, detailing consensus, disputes, and suggested actions.
  4. Non-participating in discussions can have severe penalties, including costs.
  5. These methods align with the CPR's focus on proportionality and efficiency.