By : Colm Nugent
The recent Court of Appeal decision in Daniels v Walker  1 WLR 1382, appears to significantly breach the general resistance of the courts to allow both parties to instruct their own experts.
"The introduction of the CPR brought with it a sea-change in the use of experts and their reports. No longer would both sides in litigation be able wheel out their beautifully indexed and paginated expert reports, replete with annotations and references, to batter their opponents into submission. The CPR heralded, we were told, 'the end of trial by experts'.
But the recent Court of Appeal decision in Daniels v Walker  1 WLR 1382, appears to significantly breach the general resistance of the courts to allow both parties to instruct their own experts.
Not all courts view joint experts, and their desirability, in the same way. Personal Injury matters may well lend themselves to single joint experts. The pre-action protocol encourages the nomination and agreement of experts with a view to them being jointly instructed if possible. However, the Commercial Court Guide makes no such presumption (para H2.4), and recognises that separate experts are sometimes necessary, and even desirable. The approach taken by the Guide is worth considering in respect of any substantial matter where experts may be required.
Further guidance as to general approach may be obtained from the Chancery Guide (para 6.11) where Lord Woolf MR is quoted directly:
"As a general principle, I believe that single experts should be used wherever the case (or the issues) is concerned with a substantially established area of knowledge and where it is not necessary for the Court directly to sample a range of opinions. The expert's duty to the Court will require him to set out in his report his view of the range of possible opinions."
Anecdotal evidence from the county courts suggests that judges are now more willing in personal injury matters to allow each party to have the expert of their choice and for differences to be rehearsed and/or resolved in a joint report. Often, the joint report makes the attendance at trial of either expert un-necessary. Such a step is clearly in keeping with both the overriding objective and the courts duty to restrict expert evidence.
Daniels v Walker  1 WLR 1382 cautions against the use of Human Rights legislation arguments - particularly under Article 6(1) - to further an argument that could easily be considered within the framework of the CPR. The decision in Daniels considered the proposed instruction of a further expert, in addition to a joint expert, and laid down a number of relevant criteria:
- Has there been a jointly instructed expert? There may be a distinction between a joint report and an expert nominated by one side, to whom the other side does not object.
- What is the value of the case - is it 'substantial', or at least not 'modest'?
- Are the reasons for wanting a further report 'fanciful'? This is, on its face, a very broad test. It does not appear to take much to lift reasons from 'fanciful' to 'real'. The reasons do not apparently need to be substantial.
- Has the joint expert been asked to address the live issue via questions? The implied query appears to be, if not, why not?
Therefore, if another expert is willing to prepare a short preliminary report indicating that the joint expert's view is contrary to another expert's opinion, it would appear that the reasons for wishing to call an additional expert move from the realms of 'fanciful' to 'real'. In those circumstances, says Daniels, subject to the court's discretion the party ".. should … be permitted to obtain that evidence." (p.1387F). The use of the word 'should' rather than 'may' is, in my view, significant.
The court retains to discretion to permit or refuse the additional expert to give oral evidence and so retains the ability to restrict evidence placed before the court. However, where a court has applied the Daniels criteria and permitted an additional report, if the issue identified remains both live and 'not fanciful' it is difficult to envisage circumstances where permission to call the oral evidence could be refused and still meet the overriding objective.
Save in what have been termed 'moderate' cases, the Court of Appeal appears to be inviting each side to consider their own experts where they can identify 'real' issues. What is a moderate case? Highly subjective, but anecdotal evidence suggests anything where damages do not exceed £30,000.
Persuading the court to permit a further expert report
Certainly until the Daniels case, where there was a joint expert report, the fact that another expert is willing to contradict or challenge those findings was not particularly relevant to the exercise of the courts discretion is allowing another expert. The key tests are (or were): · Whether the instructing of a further expert will assist the court in meeting the over-riding objective. · Whether, in the context of the case, the instruction of a further expert will add to cost and delay. · Whether the instruction of a further expert meets the 'proportionality' test - is it proportionate to the matters in issue and the damages likely to be awarded · How can the further report assist the court (rather than your client's case) in determining the matter?
In considering an application for further expert evidence on an issue, it will be useful to have had your expert do some work beforehand. If he is willing to produce a critique or mini-report as to the ways in which he can assist the court in the matter, so much the better. Such a critique/mini-report may wish to address the some of the following:
- There are a wide range of expert opinions in this area and the joint expert merely represents one area of opinion, without giving credence or consideration to any other
- The expertise required is highly subjective - relying wholly upon experience to make a subjective judgement (acceleration of symptoms; professional practice/procedure etc.) - although this reasoning could equally be used against granting of permission;
- The damages in this matter are so significant (and in my view this ought to be the case in any matter exceeding six figures) that the Claimant/Defendant ought to have the opportunity to have an independent expert review of the evidence;
- There are aspects of the evidence which the existing expert has ignored and which call into question his findings;
- A joint report will enable the court to have a more balanced view of the relevant expert issues, than that of a single report.
Have your proposed expert ready to produce a report within a relatively short period, ideally in no more than four weeks in appropriate cases. A four-week delay (unless the trial is very close by) is unlikely to be significant in any substantial litigation.
The current position on experts (with relevant cases) has been considered in various quarters, in particular Clive Freedman's article entitled 'Expert Witnesses and Legal proceedings' which can be found at http://www.3verulam.co.uk/articles/experts-cf.htm - to whom I am grateful for his assistance, and Laurie West-Knights QC website, the relevant parts of which can be found at http://www.lawonline.cc/locked/cpr/operatio.htm.
In cases where the opinion of the experts may make the difference between winning or losing, litigators will wish to carefully consider whether the instruction of a joint expert is necessary or desirable and whether, in any event, another expert ought to re-consider the issues afresh. Daniels v Walker provides the mechanism to do so.