K16.4. Single joint experts
| 507. |
An important innovation aimed at avoiding
partisanship altogether and at saving costs is the power given to the court to appoint a
single joint expert. CPR 35.7 provides :- |
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"(1) |
Where two or more
parties wish to submit expert evidence on a particular issue, the court may direct that
the evidence on that issue is to given by one expert only. |
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(2) |
The parties wishing to
submit the expert evidence are called 'the instructing parties'. |
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(3) |
Where the instructing
parties cannot agree who should be the expert, the court may - |
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(a) |
select the expert from
a list prepared or identified by the instructing parties; or |
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(b) |
direct that the expert
be selected in such other manner as the court may direct." |
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| 508. |
It is noteworthy that such an expert is not a
court-appointed expert. The court is likely to direct that such an expert should be
appointed but then to leave it to the parties to select the expert by agreement or at
least to agree a shortlist of experts. Professional associations like the Academy of
Experts are again helpful in this context. They maintain directories and databases of
available experts to assist those looking for experts and can provide a neutral and
independent selection service if required. |
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| 509. |
By letting the parties pick the expert, the
court preserves some of the beneficial aspects of the adversarial system and avoids, for
instance, being seen to descend into the arena in its choice of expert or in the
formulation of his instructions. The CPR leaves the instruction and remuneration of the
single joint expert to the parties :- |
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"(1) |
Where the court gives a
direction under rule 35.7 for a single joint expert to be used, each instructing party may
give instructions to the expert. |
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(2) |
When an instructing
party gives instructions to the expert he must, at the same time, send a copy of the
instructions to the other instructing parties. |
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(3) |
The court may give
directions about - |
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(a) |
the payment of the
expert's fees and expenses; and |
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(b) |
any inspection,
examination or experiments which the expert wishes to carry out. |
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(4) |
The court may, before
an expert is instructed - |
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(a) |
limit the amount that
can be paid by way of fees and expenses to the expert; and |
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(b) |
direct that the
instructing parties pay that amount into court. |
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(5) |
Unless the court
otherwise directs, the instructing parties are jointly and severally liable for the
payment of the expert's fees and expenses." (Note 445) |
Notes
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