Previous contributors to the Trett Digest have considered the impact of the Woolf reforms on the use and misuse of expert evidence in civil litigation in England and Wales. With over two years having now elapsed since the introduction of the Civil Procedure Rules ("CPR") in April 1999, the writer wishes to consider one particular feature of the new regime insofar as it relates to experts, namely the use of single joint experts.

IT will perhaps come as something of a surprise that appointment of single experts by the courts is not a new concept; the right of a court to effect such an appointment was codified as long ago as 1934 within Order 40 of the Rules of the Supreme Court (RSC) and there it remained (although seldom exercised) until the RSC were swept away by the CPR in 1999. Single tribunal appointed experts are of course also nothing new in arbitration; for example, Article 20(4) of the ICC Rules of Conciliation and Arbitration has for many years given arbitrators the power to make such appointments in arbitrations conducted under their auspices.

Albeit that in the final report of "Access to Justice" Lord Woolf recognised that there was considerable resistance to his proposals on single joint experts, which he described as an "anathema" to many members of the legal profession, Rule 35.7 of the CPR was included as one of the planks upon which the new regime for civil litigation in England and Wales was seemingly founded.

Despite the concerns expressed by lawyers and others, the simple reality is that (particularly insofar as construction and engineering disputes are concerned) the courts have to date used their power to appoint single joint experts sparingly. Appointments in the Technology and Construction Court (TCC) are not common and perhaps this reticence can be explained by the experience in Abbey National Mortgages plc v Key Surveyors Nationwide (1995 75 BLR 124), which was one of the rare occasions when a single expert appointment was made in the TCC under the old RSC Order 40. The Abbey National Case (which related to allegations of negligence by a surveyor) took far longer to conclude than cases of a similar type where both parties retained their own experts.
Lord Woolf acknowledged in "Access to Justice" that:

"As a general principle, single experts should be used wherever the case or the issue is concerned with a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of options"

It is fair to say that, generally, the Courts have taken heed of Lord Woolf’s observations when appointing single experts. Large, complex and strongly contested cases are simply unsuitable for such appointments and (as Lord Woolf himself acknowledged) require the full "adversarial treatment" including the cross examination of opposing experts on particular issues. It is a fact that single joint experts are seldom (if ever) used in complicated or technical cases in either the TCC or the Commercial Court. Indeed, one Judge of the TCC (His Honour Judge Humphrey Lloyd QC) has gone so far as to say that it is most unlikely that a single expert will be instructed by the Court in a typical case involving a final account, or variations, or loss and expense claims or in a dilapidations case1. The exception to this may however be when one party is presenting the case itself or had not appointed an expert in circumstances where an impartial view could be beneficial to the Court.
Furthermore, a single expert may also be appropriate where one individual is the sole acknowledged authority in a particular area of expertise and both parties are prepared, in effect, to let him or her come to a conclusion which would almost certainly be followed by the judge.
The reality has tended to be that even when "single" experts have been appointed, the courts have been inclined to allow parties to adduce additional expert evidence. In the case of Daniels v Walker [2001] 1 WLR 1382, Lord Woolf himself said that the Court should be prepared to exercise its discretion and permit a party to appoint a further expert where this would enable additional evidence to be obtained in order that a decision could be made as to whether the single expert’s evidence should be challenged. The most important consideration though in any application to adduce further evidence would appear to be "the overall justice to the parties in the context of the litigation" (per Neuberger J in Cosgrove v Pattison (ChD) unreported). The cases seem to suggest that the court will also have regard to the amount at stake in the litigation, the timing of the application and the overall effect of the additional evidence which is to be adduced. Certainly, it will not be sufficient merely for one side to seek to rely on the evidence of a new expert because his opinion differs from that provided by the single expert.

One particular concern which many litigants and their advisers have in agreeing to the appointment of single joint experts is the fact that (under Part 35 of the CPR) any instructions to the expert will not attract privilege. As a result, there is a natural inclination for a party to be less open with the single joint expert than they would perhaps otherwise have been with a party appointed expert for fear that any weaknesses or limitations in their case will be seen by both the other side and the court.
It summary therefore it seems that, despite the widespread concerns expressed when "Access to Justice" first proposed the introduction of a regime of single experts, the reality, at least in the first two and a half years since the introduction of the CPR, is that in sizable construction and engineering disputes very few appointments have been made and that by and large a system of single, party appointed experts has been retained. Even where single appointments have been made, there has been a tendency thus far for parties to retain their own experts to advise them and, even in some cases, to seek to adduce evidence at trial which counters that of the single expert.

Whilst such an approach can perhaps be justified in the larger and more complex dispute, the ramifications in smaller scale litigation would appear to be that the cost of expert evidence will be increased rather than decreased. This was certainly not what Lord Woolf had in mind in "Access to Justice".

Christopher J. Hoar
Partner, Shadbolt & Co,
Hong Kong
Tel: +852 2851 4888
1 "Expert Evidence" by His Honour Judge Humphrey Lloyd- Paper to The Society of Construction Law Hong Kong- November 2000