GUIDANCE ON INSTRUCTING EXPERTS (4): THE SINGLE JOINT EXPERT IS NOT A DEMIGOD
This blog looked recently at the case of O v B-M  EWFC B23 where the trial judge was critical of a jointly instructed expert’s attempt to find facts and state that something was “proven by overwhelming evidence”. That case contains important observations as to the role of the expert in these circumstances. It most certainly is not to displace the role of he trial judge. Here we look at the guidance available to the lawyer (and the expert) in relation to the instruction of a joint expert.
The rules give some basic guidance as to the steps to be taken when instructing a single joint expert. Firstly CPR 35.8.
(1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, any relevant party may give instructions to the expert.
(2) When a party gives instructions to the expert that party must, at the same time, send a copy to the other relevant parties.
(3) The court may give directions about –
(a) the payment of the expert’s fees and expenses; and
(b) any inspection, examination or experiments which the expert wishes to carry out.
(4) The court may, before an expert is instructed –
(a) limit the amount that can be paid by way of fees and expenses to the expert; and
(b) direct that some or all of the relevant parties pay that amount into court.
(5) Unless the court otherwise directs, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses.
THE PRACTICE DIRECTION
The Practice Direction is fairly light on the practical issue of instructing an expert, it provides some guidance as to when joint instruction should be considered.
“Single joint expert
7 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.”
THE CIVIL JUSTICE COUNCIL GUIDANCE FOR THE INSTRUCTION OF EXPERTS
More detailed guidance is to be found in the Civil Justice Council Guidance. Note, in particular, there are procedures in place if the parties cannot agree instructions and if the expert receives instructions from one party but not the other.