When your SJE gives the “wrong” answer
The Single Joint Expert (SJE) was developed by Lord Wolf in his Access to Justice, and has featured in the Civil Procedure Rules ever since they were launched.?The SJE is very popular with the courts, and no wonder. For example, where there is need to value the family business where a clean break is envisaged, in the old days I would frequently see a situation where the valuer for the husband (me, say) valued the business at £nil and the valuer for the wife said £1million.?I don’t exaggerate; these were the precise values given in one of my early cases.?Which valuer was right? I was! The business collapsed during the proceedings, with no realisable assets. I was right, but I didn’t get paid – a salutary lesson all round.
But the point is that, if the proceedings had continued, the district judge would have had to make a decision. That would have been expensive in court time, and with an uncertain outcome because a DJ is not a business valuer.??
The same arises with civil cases.
You and your opponent have taken great care to choose an SJE; you’ve put forward three names, your opponent has put forward three different names, you’ve discussed them, perhaps had to call on the judge to make a decision, and now both of you must rely on the opinions of the chosen one.
But what do you do if the joint expert comes up with opinions which you simply can’t accept?
The first step is to ask questions of the expert. They must be put according to the rules.? Under CPR (other rules are available!) at Part 35.6 they must be in writing, proportionate, put only once, put within 28 days of service of the expert’s report, and for the purposes of clarification only. This may be helpful, but it won’t amount to a requirement that the expert re-writes his report, or changes his opinion drastically.
So then what?
You could apply to the court for your own party expert under Daniels -v- Walker [2000] 1 WLR 1382 CA. In that leading case, Lord Woolf (who of course was anxious to see that his new CPR code was working correctly) said this:
“…where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions…the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert or, if appropriate, to rely on the evidence of another expert.? In a substantial case…the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. ? It is to be hoped that in the majority of cases it will not be the first step but the last step.? 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, then they should, subject to the discretion of the court, be permitted to obtain that evidence.”
So this was a gentle approach; if the reasons for wanting a party expert were “not fanciful”, the court should allow a party expert to go on the record.
But in Bulic -v- Harwoods & Ors [2012] EWHC 3657 (QB) it was not so straightforward.? Eady J picked up another phrase from Lord Woolf’s words above, namely “subject to the discretion of the court”.?That of course must be right; any expert is permitted to give evidence only with the permission of the court in any circumstances. Eady J said this:
“…In referring simply to requiring a ‘good reason’ (Lord Woolf) was clearly recognising the need for flexibility.? What is a ‘good reason’ in one case may prove quite inadequate in another.? None of these judicial observations, made in the context of applying broad principles to very specific factual circumstances, should detract from the breadth of the court’s discretion from the general terms in which the guidance was given in the earlier cases.”
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In other words, the matter is case specific.
There has been further clarification in the recent case of Hinson -v- Hare Realizations Ltd (2) [2020] EWHC 2386 (QB), which concerned Noise Induced Hearing Loss. The claimant alleged that he had been exposed to high levels of noise in the defendants’ factory, and had not been given adequate hearing protection or training. The SJE produced a report which was not helpful to the claimant.??
The claimant’s solicitor, in handling a similar case, came across an expert who considered that the SJE’s report in Hinson was defective.?Three days before the hearing, the solicitor applied to the court for a party expert’s report to be admitted and for the trial to be vacated and elevated to the multi-track. Miss Recorder McNeill QC refused the claimant’s application to vacate the trial and to rely on the new expert’s evidence. The claimant appealed.
The question for the court was similar to that in Bulic, and the higher court rejected the claimant’s appeal. Martin Spencer J said this:
…but he quoted the words of Eady J in Bulic as follows:
Martin Spencer J then produced a checklist of matters to be considered, with one factor being no more important than another, as follows:
There is no easy answer to all of this.? The SJE must of course be chosen with care, and must be instructed fully and carefully. After that, it’s hold your breath time, and hope that the SJE comes up with opinions which are not unhelpful to your case. And if you consider that it is essential to have a party expert, make application to the court promptly (not within three days of the hearing as in Hinson!) and prepare very clear and persuasive arguments for why the party expert is essential if justice is to be served.
Good luck with that!
First appeared on the?Chris Makin blog