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It is likely that the application of such guidelines would result in SJE orders being
confined to the category of "low value, low complexity" cases where no reasons
militate against use of a SJE, and that such cases would represent a relatively small
minority. The Working Party does not consider such an outcome objectionable if
savings and benefits can nonetheless be achieved in those cases while avoiding the
counter-productive effects of SJE orders made inappropriately. As pointed out in the
Interim Report (at §516), where an order for a SJE proves to have been made
inappropriately, the Court may direct that the parties be allowed to call their own
experts.
Where a court is in doubt as to the benefits of making a SJE order, it may wish to
encourage the parties to consider such an appointment by consent (if necessary,
choosing the relevant expert with the help of professional bodies such as the AE). It
may be helpful if the questionnaire forming part of the summons for directions
procedure recommended above
were to require the parties to state whether they
consider appointing a SJE appropriate in the case and if not, why not.
Recommendation 107: The court should be given power to order the parties to
appoint a single joint expert upon application by at least one of the parties,
subject to the court being satisfied, having taken into account certain specified
matters, that the other party's refusal to agree to a SJE is unreasonable in the
circumstances.
Notes
As occurred in Daniels v Walker [2000] 1 WLR 1382.
Section 13.5
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