One expert or two?

District Judge Pal Sanghera discusses the battle for separate expertsCivil Procedure Rules 1998 (CPR) rule 35.7 enables the court to direct that where expert evidence is necessary on a particular issue, it should be given by a single joint expert.

Pre-action protocols all encourage the use of single joint experts.

Even the clinical negligence protocol expresses the need for economy in the use of experts and a less adversarial approach.

The parties themselves should start from this position.

Separate experts, separately instructed, add to the costs and time not only of the trial but of the pre-trial process.

This is the thrust of the CPR, stated clearly in Daniels v Walker [2000] 1 WLR 1382 CA.

If one or the other party believes that it has sound reasons for obtaining its own evidence, it can obtain an order subject to the court's discretion.

But how often do parties in the allocation questionnaires, simply suggest separate experts when one will do? Too often.

Merely saying that the sums are substantial is no justification for departure from the normal rule that there should be one expert.

Guidance on this was given in Daniels, where the Master of the Rolls, Lord Woolf, said: 'If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.'The fact that a single joint expert should be the norm has been stated somewhat more forcibly by Lord Woolf in Peet v Mid Kent Healthcare Trust [2002] 1 WLR 210 when he said: 'The rules permit the court to require the parties to use a single expert.

This is not a matter of choice for the parties.

In the absence of special circumstances, I consider that the appropriate way that the power should be exercised is to require a single expert rather than an expert from each party.' The reasons now have to be somewhat more than unfanciful.

A case will need to be made out that the circumstances are special and the courts can be expected to take a more robust view.QuestionsThe first step should always be to ask questions of the single joint expert and, if those do not resolve the problem, then make an application to instruct another expert.

That expert should then discuss matters with the single joint expert.

Any decision as to oral evidence at trial cannot be made until after that discussion and the court has seen for itself the degree of disagreement.

Issues of proportionality, as ever, are relevant.

In a substantial case, it may be unjust to stop a party calling other or further expert evidence but in a more modest claim the additional costs may outweigh any evidential value.

Each case needs to be considered on its individual merits but from the starting point that there should be a single joint expert.

Moreover, oral evidence by experts in court should be a last resort.It is important to note that the CPR do not restrict the enquiries or advice that either party believes that its case requires.

They merely restrict the right to adduce such evidence at trial and to make the other side pay for it.

Rule 35.8 enables each party to give directions to a single joint expert direct but it is a mandatory requirement that a copy of such instructions must at the same time be sent to the other side.

However, when a single joint expert is instructed, his job is made much easier if one set of agreed instructions are sent.These agreed instructions can be followed up where necessary by agreed questions.

Ideal agreed allocation directions should not only provide for a single expert but also timetable the joint instructions and joint questions.

Unilateral conferenceShould one party be entitled to have a conference with the single joint expert in the absence of the other? No - see Smith v Stephens [2001] LTL 16 October QBD and Mid Kent Healthcare Trust [2002] 1 WLR 210.

Anything else would offend against the principle of openness.

However, there can be no objection to a joint conference where it is necessary.Codes of practiceIt is obvious that clear codes of practice that are well publicised and publicly available would greatly assist practitioners, experts, and the courts.

The clinical disputes forum has, after consultation, published guidance for discussions between experts in the context of clinical disputes.This guidance advocates the attendance of the lawyers at such meetings.

While this guidance is aimed solely at clinical negligence, it has general relevance for those occasions when separate experts are necessary.

The Academy of Experts and the Expert Witness Institute have both made laudable strides along the road of offering guidance to experts in all other types of cases.

They have both published their individual codes.

They are available on their respective Web sites at www.academy-experts.org and www.EWI.org.uk.

Both codes have much to commend them.

They have both received a certain measure of judicial support.

Both codes rightly say 'no' to contingency and conditional fees for experts.

Both codes set out broadly similar guidelines for instructions.

In essence, there is nothing of substance that divides the two codes.

It would be of great benefit if the two organisations could agree a single code which would then form the basis of any instructions.

It would enable better case management by the parties and the court.

Compliance (or non-compliance) with a single widely accepted code would be relevant to any directions or orders that the court might make.

Equally important, it would reduce the delay that is so often caused by late reports.

The parties now work to a strict timetable to trial.

There are no general adjournments.

The court manages the case much more proactively than before CPR.

This has put pressure on practitioners as well as the courts.

However, experts do not appear to have fully appreciated the change.

How often are there requests to move the trial window because experts cannot finalise reports or discussions in time? Are they that much busier than practitioners? The Expert Witness Institute's code provides that the instructions should include a 'time for delivery of report' and that experts must not accept instructions if they are not satisfied they can comply with any orders that have been made.'There is a similar provision in the Academy of Experts code which, in slightly more detail, says that those instructing the expert should agree with him:l Whether he is appropriately available;l An outline programme, consistent with good case management and the expert's availability, for the completion and delivery of each stage of the expert's work, and;l Provision for the programme to be varied as the case may progress, the court may direct and as the overriding objective may require.If instructions are issued on the basis of either code, then in the event of default which leads to a costs sanctions, those costs should, where appropriate, be passed on to the expert.

In litigation which increasingly requires expert evidence, experts who undertake litigation work, must expect to be bound by the same rules.

It is up to those that instruct them to ensure that this is clearly understood.The five commandments It would be wise for you to:l Agree which code you will adopt;l Agree your single joint expert.

This decision may influence or be influenced by your choice of code.l Issue clear instructions, in particular of the critical dates.l If a conference with the single joint expert is necessary, which should be the exception rather than the rule, make sure that it is jointly set up with the other side.l Make any necessary court applications at an appropriately early stage and then be prepared to justify properly any request made for a separate expert or oral evidence.District Judge Pal Sanghera sits at Coventry and Nuneaton County Courts