THE MEETING OF EXPERTS: CASE LAW AND GUIDANCE
The case of Cintas Corp No 2 -v- Rhino Developments (2015 Ch D Newey J 10/6/2015) * reported on Lawtel today provides an interesting scenario in relation to the conduct of an expert and joint meetings. There is relatively little “jurisprudence” on the meeting of experts. However some commentators have identified this as a critical time in the litigation process. Here we look at some cases on this topic and the guidance available to lawyers and experts.
THE FACTS IN CINTAS
The parties had each instructed experts in relation to fire safety. A joint meeting of the experts took place. A second joint meeting took place and an joint statement was signed by both experts on the 11th May. The applicant was surprised at the conclusions reached and ask the expert to explain. The expert stated that he had sent amendments to the respondent’s expert and assumed the changes had been incorporated. In fact the applicant’s expert had not sent his proposed amendments until the 11th May. The applicant applied for permission to instruct a new expert.
The judge held that the applicant’s expert had acted improperly and been dishonest. It gave the applicant permission to rely on a new expert but only in relation to a limited number of matters still in dispute. Those matters agreed by the experts could not be re-opened nor could the matters where the applicant’s expert had been favourable to the respondent. The judge also held that there had been a waiver of privilege in relation to correspondence passing between the applicant and the expert after the joint meeting.
THE JOINT MEETING
I will look at this case again when the transcript is available. However it is worth noting that the joint meeting of experts, and the reports these product, is occasionally a problematic area in litigation.
FB -v- Rana & Princes Alexandra Hospital NHS Trust  EWHC 1536
This case was looked at in relation to the witness evidence in a recent post. The judge observed that the joint statement of the experts contained a number of contradictions.
97. It is immediately apparent that (i) Dr Ninis has allowed herself to “sign up” to a position (“does not allow us to conclude one way or another”) which is inconsistent with a view she expressed just two pages earlier in the Joint Statement, and (ii) Professor Kroll has allowed himself to articulate a somewhat unclear stance – on the one hand, he accepts the generalisation that feverish children with bacteraemia of this type may not appear particularly unwell, and on the other he appears immediately to resile from it and contend, without giving reasons, that the Bachur paper does not assist. In such circumstances, it seems to me that there is an issue which I must resolve on the basis of the oral evidence I have heard. In any event, neither party is bound by the Joint Statement: see CPR r.35.12(5).
IRAQI CIVILIANS -v- MINISTRY OF DEFENCE  EWHC 1254 (QB)
We have also looked at this case earlier. The trial judge gave short shrift to to an attempt by the claimant’s expert to resile from agreements made in the joint report.
“On the day before the trial, however, the claimants’ solicitors gave notice that Mr Dawood “does not agree” with two paragraphs of the joint experts’ report. Those paragraphs contained statements to similar effect to the passage quoted above (although the passage quoted above was not identified as one which Mr Dawood did not agree with). It was not apparent whether Mr Dawood was saying that the joint experts’ report did not accurately represent his view at the time when he signed it or that he had since changed his mind. Nor was any explanation given at that stage of his reasons for disagreeing with the paragraphs in question.”
A LOOK AT THE RULES
This is dealt with in CPR 35.12.
(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which –
(a) they agree; and
(b) they disagree, with a summary of their reasons for disagreeing.
(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.
THE PRACTICE DIRECTION (PD 35).
Discussions between experts
9.1 Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so when.
9.2 The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.
9.3 Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.
9.4 Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions.
9.5 If the legal representatives do attend –
(i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and
(ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives.
9.6 A statement must be prepared by the experts dealing with paragraphs 9.2(i) – (iv) above. Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.
9.7 Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.
9.8 If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.
Discussions between experts 68.
The court has the power to direct discussions between experts for the purposes set out in the Rules (CPR 35.12). Parties may also agree that discussions take place between their experts at any stage.
69. The purpose of discussions between experts should be, wherever possible, to: a. identify and discuss the expert issues in the proceedings; b. reach agreed opinions on those issues, and, if that is not possible, narrow the issues; c. identify those issues on which they agree and disagree and summarise their reasons for disagreement on any issue; and d. identify what action, if any, may be taken to resolve any of the outstanding issues between the parties. They are not to seek to settle the proceedings.
70. Where single joint experts have been instructed but parties have, with the permission of the court, instructed their own additional Part 35 experts, there may, if the court so orders or the parties agree, be discussions between the single joint experts and the additional Part 35 experts. Such discussions should be confined to those matters within the remit of the additional Part 35 experts or as ordered by the court.
71. Where there is sequential exchange of expert reports, with the defendant’s expert’s report prepared in accordance with the guidance at paragraph 61 above, the joint statement should focus upon the areas of disagreement, save for the need for the claimant’s expert to consider and respond to material, information and commentary included within the defendant’s expert’s report.
72. Arrangements for discussions between experts should be proportionate to the value of cases. In small claims and fast-tracks cases there should not normally be face to face meetings between experts: telephone discussion or an exchange of letters should usually suffice. In multi-track cases discussion may be face to face but the practicalities or the proportionality principle may require discussions to be by telephone or video-conference.
73. In multi-track cases the parties, their lawyers and experts should cooperate to produce an agenda for any discussion between experts, although primary responsibility for preparation of the agenda should normally lie with the parties’ solicitors.
74. The agenda should indicate what has been agreed and summarise concisely matters that are in dispute. It is often helpful to include questions to be answered by the experts. If agreement cannot be reached promptly or a party is unrepresented, the court may give directions for the drawing up of the agenda. The agenda should be circulated to experts and those instructing them to allow sufficient time for the experts to prepare for the discussion.
75. Those instructing experts must not instruct experts to avoid reaching agreement (or to defer doing so) on any matter within the experts’ competence. Experts are not permitted to accept such instructions.
76. The content of discussions between experts should not be referred to at trial unless the parties agree (CPR 35.12(4)). It is good practice for any such agreement to be in writing.
77. At the conclusion of any discussion between experts, a joint statement should be prepared setting out: a. issues that have been agreed and the basis of that agreement; b. issues that have not been agreed and the basis of the disagreement; c. any further issues that have arisen that were not included in the original agenda for discussion; and d. a record of further action, if any, to be taken or recommended, including if appropriate a further discussion between experts.
78. The joint statement should include a brief re-statement that the experts recognise their duties (or a cross-reference to the relevant statements in their respective reports). The joint statement should also include an express statement that the experts have not been instructed to avoid reaching agreement (or otherwise defer from doing so) on any matter within the experts’ competence.
79. The joint statement should be agreed and signed by all the parties to the discussion as soon as practicable.
80. Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound (CPR 35.12(5)). However, parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs.
81. Since April 2013 the court has had the power to order at any stage that experts of like disciplines give their evidence at trial concurrently, not sequentially with their party’s evidence as has been the norm hitherto: PD 35 paragraphs 11.1-11.4 (this is often known as “hot–tubbing”). The experts will then be questioned together, firstly by the judge based upon disagreements in the joint statement, and then by the parties’ advocates. Concurrent evidence can save time and costs, and assist the judge in assessing the difference of views between experts. Experts need to be told in advance of the trial if the court has made an order for concurrent evidence.
* This summary is based on the Lawtel note.