Practice points on expert discussions and joint reports
The meeting of experts and the ensuing joint report is often a pivotal moment in the course of litigation.
The Civil Justice Council Guidance contains a number of provisions relating to discussions between experts and joint reports. Of particular interest in multi-track cases are the following points that are sometimes missed:
- the parties, their lawyers and experts are required co-operate to produce an agenda for any discussion between experts (a point that should also be borne in mind when compiling costs budgets).
- The joint statement should be prepared setting out, among other matters a record of further action, if any, to be taken or recommended, including if appropriate a further discussion between experts (this may be important if, for example, scans are outstanding or other tests may resolve matters).
It is not unheard of for an expert to completely change his or her conclusions in the joint statement. In such circumstances CPR Part 35 did not rule out the granting of permission to call a further expert.
However, under CPR PD 35 para 9(8), if an expert significantly alters his or her opinion in the joint statement, that statement must include a note by that expert explaining the change of opinion.
This was an issue that arose in the recent case of Wright v Firstgroup PLC (2018) 12th January 2018 where a Judge allowed a trial to be adjourned in order for a Claimant to instruct a new accident reconstruction expert following a road traffic accident, where his expert had changed his opinion following a joint meeting of the experts.
The Judge found that while a party did not have a right to change experts especially at such a late stage simply because the expert said something disadvantageous to them, in this case the Claimant was maintaining that his expert had significantly altered his opinion but that there had been no explanatory note in accordance with the CPR (see above).
The Judge considered that there was a lack of clarity regarding the claimant's expert's current view, and that this meant that the Claimant was at an unjustified disadvantage if forced to proceed on the basis of the current expert evidence.
If the Claimant had succeeded at trial his damages were likely to be substantial and so all in the circumstances the Court took the exceptional course to adjourn the trial and allow the claimant to instruct a new accident reconstruction expert.
Similarly in Stallwood v David and Adamson  EWHC 2600, QB, a Claimant's medical expert changed his opinion after a discussion with the defendant's expert. The Claimant was nonetheless allowed to call a second expert, partly because she had lost confidence in the first one, and partly because the judge had made comments at the case management conference that heightened the Claimant's sense of grievance.
After the joint report is signed it may be that an expert changes his mind on issues that were apparently agreed in that report.
Such a situation arose in Iraqi Civilians v Ministry of Defence  EWHC 1254 (QB). The Judge noted that while an expert was entitled to change his mind after a joint statement was signed, a clear explanation from him for this change of mind was required. In this case the Judge rejected expert's suggestion that the joint experts' report did not accurately represent his opinion at the time when he signed it.
Similarly in Garcia v Associated Newspapers Ltd  EWHC 3137 a Defendant applied to adduce a supplementary statement from an expert in which he qualified some of the statements that he had made in the joint statement of the experts. The Judge allowed this supplementary statement to be served because if the expert had changed his opinion on relevant matters it was necessary to know that as soon as possible, and serving a supplementary statement would provide the Claimant with a fair opportunity to consider that change of evidence before cross examination, where the change of mind would have been revealed in any event.