Lord Woolf has inspired many lawyers to consider ways of cutting the time and cost of doing business in the civil courts.

It is therefore surprising that, for many years, one order of the Supreme Court practice has remained unfashionable.

But a recent decision has shone new light on ord 40, which deals with the appointment of a single expert by the court itself.

Ord 40 provides for an additional expert witness but limited to one per party without leave.

This should save costs by reducing the number of experts, and will inevitably lead to significant amounts of evidence remaining unopposed, and issues being substantially narrowed.In Abbey National Mortgages plc v Key Surveyors Nationwide Ltd [1995] EGCS 79 the plaintiff was proceeding against the defendants in the official referee's court in respect of allegedly negligent property valuations carried out by the defendants in the late 1980s.

This sort of case is not unusual, but here the case involved 51 separate properties around the country.In Abbey National His Honour Judge John Hicks QC made an order limiting expert valuation evidence to one witness for each party, but directed the parties to endeavour to agree means by which the valuation experts could incorporate in their evidence any necessary information as to local conditions outside their personal knowledge, with liberty to apply in case of failure to agree.

The parties failed to agree and the matter was returned to the judge.On 10 February 1995 the judge applied the little-used provisions of ord 40, which provides:1.(1) In any cause or matter which is to be tried without a jury and in which any question for an expert witness arises, the court may, at any time, on the application of any party, appoint an independent expert...to inquire and report upon any question of fact or opinion not involving questions of law or construction.(3) The question to be submitted to the court expert and the instructions (if any) given to him shall, failing agreement between the parties, be settled by the court.(4) In this rule, 'expert', in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.2.(1) The court expert must send his report to the court...and the proper office must send copies of the report to the parties or their solicitors.3.

Any part of a court expert's report which is not accepted by all the parties...shall be treated as information furnished to the court and be given such weight as the court thinks fit.4.

Any party may, within 14 days after receiving a copy of the court expert's report, apply to the court for leave to cross-examine the expert on his report, and on that application the court shall make an order for the cross-examination of the expert by all the parties either: (a) at the trial; or (b) before an examiner.6.

Where a court expert is appointed...any party may [on reasonable notice] call one expert witness...on the question reported on by the court expert.As Judge John Hicks QC observed, there have been no cases involving ord 40 in the official referee's court for many years.

The scant notes to the order in the White Book com ment that applications under the order 'have been very few in number'.

The judge therefore approached the issue from principle.

He decided that the appointment of a court expert would be right for the following reasons:-- An expert opinion expressed on the value of a property depends to a great extent on experience or 'feel', or on the balancing of unquantified or imponderable considerations.

It can be difficult for a non-expert judge in these matters to appraise two competing opinions of this nature and the assistance of a court expert is likely to be of substantial advantage in the just resolution of issues as to the true value of a property.-- The appointment of a court expert would advance both expedition and economy if it promoted settlement, as in a significant proportion of cases it would seem likely to do.

The expense would rise if the parties exercised their right to call their own expert evidence.

However, because of the paucity of experience, there is no way of predicting what will be the course of cases where a court expert is appointed.One of the arguments against the appointment of a court expert was that, in this case, an expert valuer had to be a local valuer because he or she alone had knowledge of comparable properties and the 'flavour' of the location.

A court-appointed expert would not be local to all the properties which were geographically disbursed.The judge said: 'This court is concerned with doing justice, not with achieving a state of expensive and unnecessary perfection.' Further, the judge found that there could be no unfairness because both parties would be in the same position with one expert each.

The judge recognised that the court-appointed expert might have to rely on hearsay evidence of comparables, unless he or she was personally concerned in the relevant transaction.

The case is now entering 'uncharted territory'.

It would appear that the court expert is not merely a witness.

Although he or she may be cross-examined (r.4), the status of his or her report provides that in the absence of acceptance by both parties, it is to be treated as 'information furnished to the court'.

It is not stated to be 'evidence'.

His or her role is also not solely to 'report' but also to 'inquire', and, unlike a normal expert witness, he or she can inquire into questions of fact as well as opinion (r.1(1)).

It does appear that the advantage of the court expert is that not only can he or she include matters which in an expert witness's report would be inadmissible hearsay, but also unlike a normal expert witness's he or she can 'inquire' into matters of fact.The judge was careful to make it clear that the court expert has no delegated jurisdiction of the kind held by a special referee under ord 36, r.10.

The parties in the case were directed to exchange and lodge in advance their proposals for supplementary directions to be given and it is likely that the role of the court expert in the case will emerge further.There remain a number of unturned stones in the old pond: it remains to be seen whether the brevity of the order will lead to a multiplicity of directions appointments, which the lower courts in particular have been keen to avoid, or a significant saving of time and costs; whether ord 40 will be applied in the county court; whether and how far ord 40 will extend to other areas such as personal injury and construction; to what extent it will lead to early settlements; and how the role of the court expert will develop.The Court of Appeal may still give further guidance on the use of ord 40.

It is quite possible that a court expert may be capable of being appointed by the court without an application by the parties and, furthermore, it may be that there will be no opportunity for a 'shadow' expert witness.1995