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K16.5. How the reforms have been received
| 510. | During his visit to Hong Kong in April 2000, Lord Woolf spoke enthusiastically about the introduction of single joint experts. He expressed the view that the new provisions could bring about a far-reaching cultural change amongst experts. It enhances an expert's appointability as a single joint expert if his opinions are known for their independence and objectivity. This becomes a strong incentive to avoid partisanship. |
| 511. | According to the White Book :- |
| "There is some evidence that within a short time of the implementation of the CPR lawyers, experts and the courts were accepting and applying the objectives of Part 35. In a survey carried out by an expert witness training organisation in December 1999, experts reported that workloads were down by 35%, 65% had been appointed as single joint experts, 64% had received written questions on their reports, and requests to give oral evidence were down by 30%." (Note 446) | ||
| 512. | After two years' operation, the Lord Chancellor's Department reported that post-CPR joint expert witnesses were used in 41% of cases involving any expert witnesses and a reduction in cases overall where at least one expert witness was instructed by each side; 11% in 2000 compared with 15% in 1997. In general, the Department reported :- |
| "The use of single joint experts appears to have worked well. It is likely that their use has contributed to a less adversarial culture, earlier settlement and may have cut costs." (Note 447) | ||
| 513. | The Lord Chancellor's Department does, however, acknowledge that there is "some doubt about the cost if parties do appoint their own experts." (Note 448) This doubt is certainly reflected by certain City firms in relation to heavy litigation. (Note 449) In such cases, if the court directs appointment of a single joint expert, the parties have tended to appoint their own "shadow" experts who will advise them (in terms protected by privilege and pursuant to non-disclosable instructions) on how to deal with the joint expert. This process is likely to mean increased costs (although some savings may nonetheless be achieved through a shortening of the trial). |
| 514. | It is obviously important to recognize that if a single joint expert procedure is introduced, it must be operated intelligently and that directions should be given only in appropriate cases. Where the expert issue arises in a well-trodden area, such as in relation to quantum in straightforward personal injury cases, (Note 450) one can readily see that a single joint expert may well be appropriate and cost-effective. Single joint experts may also function well, for instance, on uncontroversial questions of foreign law or for straightforward property or share valuations. |
| 515. | However, appointing a single joint expert in relation to a highly contentious expert issue is likely to be inappropriate and may lead to additional costs and delays being incurred. Genuine room may exist for serious expert debate among skilled and impartial experts. Justice is best served in such cases by allowing the parties to call their own experts. |
| 516. | This is illustrated by the English Court of Appeal decision in Daniels v Walker [2000] 1 WLR 1382. There, an occupational therapist was appointed joint expert to deal with a contentious question as to the care regime which an accident victim would require. The resulting report was hotly disputed and led to much solicitors' correspondence and the defendant eventually applying to the court for permission to call a further expert. The court allowed the application. Lord Woolf, giving the judgment, made it clear that appointment of a single joint expert did not preclude a further expert being appointed :- |
| "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......" | ||
| In such cases, the single joint expert direction will most probably have increased costs and delay. | |
| 517. | In interesting articles posted on the Internet, Mr S Clive Freedman, a barrister at 3 Verulam Buildings in Gray's Inn, describes some other practical difficulties that may be encountered with single joint expert directions. These include:- |
| * | Difficulties in getting agreement on who to select or how the selection is to be made, giving rise to much solicitors' correspondence (which of course runs up costs). | |
| * | Difficulties getting agreement as to the single joint expert's fees. | |
| * | Problems agreeing the expert's instructions and the scope of the report. | |
| * | Where the parties do not agree his instructions, the prescribed procedure is for each party to give him separate instructions or to supplement the other side's instructions. This obviously can cause the expert difficulty and may increase costs. | |
| * | Difficulties have also sometimes arisen in getting the expert provided with the necessary information and in getting agreement over things like tests, site visits, and so on. | |
| * | A single joint expert may sometimes be subject to badgering by each side making representations on how he should proceed. |
| 518. | Notwithstanding such problems, it seems clear that where single joint expert directions are appropriately given, the parties are likely to benefit and the court to be better served by independent and reliable expert assistance. Partisan conflicting views are avoided and only one set of fees and expenses incurred. These are important benefits making the single joint expert innovation one that clearly merits consideration for adoption. Readers are consulted on whether reforms should be adopted to address the problems of inappropriate, excessive and partisan expert evidence discussed above, and as to whether single joint expert directions should be introduced in Hong Kong: Proposals 38 to 40. |
Notes
| 446 | White Book 35.0.2. <back> |
| 447 | EF §4.16. <back> |
| 448 | EF §4.26. <back> |
| 449 | Freshfields, "The Civil Justice Reforms One Year On - Freshfields Assess their Progress" M Bramley & A Gouge (Butterworths, London 2000), p 133; Herbert Smith, Mr E P Greeno, Commerce And Industry Group Annual Legal Update: 15th March 2001; and Mr Andrew Jeffries, Allen & Overy, and Mr Harry Anderson, Herbert Smith, both at Conference on "Civil Procedure: Latest Developments and Prospects of Change" Hong Kong, 8 June 2001. <back> |
| 450 | "Used correctly, the single joint expert streamlines procedures, promotes settlement and expedites the conclusion of the case. Delay is offensive, and the majority of cases with simple medical issues can be competently dealt with by a good, joint expert. This type of case, such as a simple whiplash injury, (but not to suggest that all whiplash injuries are simple) litigated or otherwise forms the vast majority of personal injury work, in respect of which the reforms are welcomed and well suited. Thus to a very large extent, the new CPR has proved to be acceptable for the bulk of personal injury work." Carol Jackson, The Uses and Abuses of Experts and Their Evidence [2000] J.P.I.L. 19, 21. <back> |
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