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20.7
The consultation response
Most respondents to the consultation were not opposed to Proposal 40 as such but
expressed concern that orders might be made requiring the parties to appoint a single
joint expert ("SJE") in unsuitable cases, with highly counter-productive results.
Plainly (as recognized in the Interim Report), if a SJE were to be inappropriately
imposed in a case, numerous difficulties are likely to arise.
(a)
Where the expert issues are contentious, justice may be best served by the court
sampling a range of expert opinions rather than being confined to the views of a
SJE.
(b)
In contentious cases, the parties may well feel driven to appointing their own
"shadow experts" to monitor and, if necessary, to challenge or make
representations to the SJE, thereby increasing costs.
(c)
Where the SJE direction is made after a party has already instructed and had
advice from "his own" expert, that direction is likely to be very unwelcome. As
the AE puts it :-
"Generally the last thing that many parties want to do when they have had the
involvement of their ‘own' expert is to appoint a new SJE. In addition to the
perceived cost implications, parties may feel that to do so gives them less control and
reduces their ability to influence the result of the case in their favour."
(d)
The parties may find it very difficult to agree who should be appointed and what
instructions and information the SJE should be given.
(e)
The SJE may be found wanting, or an unanticipated point of controversy may
emerge, giving rise to a need for further party-appointed experts ("PAEs") to be
brought into the case, increasing costs.
Notes
A concern voiced by many respondents including the Bar Association, the BSCPI, the Law Society,
the HKMLA and the BCC.
A concern adverted to by the AE, the LAD, the APAA, the SCLHK and two firms of solicitors,
among others.
As in Daniels v Walker [2000] 1 WLR 1382.
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