In our latest article, Ann-Marie Christie, MAPS’ in-house solicitor, examines the legal and procedural framework surrounding joint expert discussions and statements in medico-legal cases. Highlighting key sections of CPR 35 and recent case law, it explores the expert’s role, common pitfalls and the importance of maintaining independence when preparing joint statements.
It can be quite daunting for an expert to prepare for a joint discussion and speak to his or her opposite number. Often the outcome of a case rests on the expert’s joint statement and so an expert must be sure that his or her opinion will carry some weight.
In the bigger cases, it is likely that there will be at least one meeting of the experts and the relevant sections as set out in P35 Civil Procedure Rules are:
- Practice Direction 35 9.1
Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so, when.
The court can make a direction under CPR 35.12 for a joint discussion but in practice, where each party has been granted permission to obtain their own expert of a similar discipline, it is expected that there will be a joint discussion unless, of course, there is no material disagreement between the experts.
There is no requirement for the meeting to be held face to face, although in some of the more complicated cases this may be necessary. Otherwise, the discussions can take place on the telephone or by Zoom/Teams.
The purpose of the discussion
One of the primary objectives is to enable the litigation to be carried out efficiently. The discussion may also identify the areas of agreement and disagreement between the experts, which can then allow the parties to narrow down the issues for the court to deal with. It also provides an opportunity for the parties to try and compromise a claim without the need for a court hearing.
CPR 35.12
(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –
- Identify and discuss the expert issues in the proceedings; and
- Where possible, reach an agreed opinion on those issues.
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which –
(a) they agree; and
(b) they disagree, with a summary of their reasons for disagreeing.
(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.
It should also be noted that where issues remain in dispute, the purpose of the discussion is to provide a summary of the reasons for the disagreement.
- Practice Direction 35 9.2
The purpose of the discussions between the experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
- The extent of the agreement between them;
- The points of and short reasons for any disagreement;
- Action, if any, which may be taken to resolve any outstanding points of disagreement; and
- Any further material issues not raised and the extent to which these issues are agreed.
Remember that compromising an opinion is for the lawyers or the judge. The role of the experts is to narrow the issues, making any possible compromise possible. The Statement of Truth, which also applies to the joint statement, makes it clear that the joint statement must still contain the experts’ “true and complete professional opinions on the matters to which they refer” – Practice Direction 35 3.3.
Lawyers should not interfere with the experts’ joint discussion or try to craft the joint statement.
See Oluseye Aderounmu (a protected party acting by his litigation friend John Edun) v. Dr Deborah Colvin here. Master Cook commented that the joint statement “was an overly lawyered document comprising 34 questions, many of which had numerous sub-clauses and in places descended into cross-examination. This is not helpful to the court. A joint statement should aid the understanding of key issues and each expert’s position on those issues.”
The Master went on to state that “Parties should resist the approach that has been taken in this case. A joint statement by experts pursuant to CPR 35.12 is for the benefit of the court and should not be a proving ground for the parties respective cases. Written questions should be put to experts under CPR 35.6 within 28 days of the service of an expert’s report.”
This is where the lawyers can assist by agreeing a well-worded agenda that does not include leading questions. The agenda should indicate what has been agreed and summarise concisely matters that are in dispute. It is often helpful to include questions to be answered by the experts. The agenda should be circulated to the experts, and those instructing them should allow sufficient time for the experts to prepare for the discussion. See Guidance for the Instruction of Experts in Civil Claims published by the Civil Justice Council and referred to in PD35.
In the case of Glover & Anor v. Fluid Structural Engineers & Technical Designers Ltd & Ors [2024], here the court found that the lawyers had tried to influence the contents of a joint statement following a meeting with the experts. The case was a construction dispute where the parties had permission to rely upon expert evidence. The court ordered that the experts meet and prepare a joint statement. The Defendant’s expert was concerned that the Claimant’s solicitors were becoming heavily involved in the drafting of the joint statement.
In correspondence, the Defendant’s solicitors continually asked the Claimant’s solicitors whether they had complied with their duties and did not stray into the drafting of the joint statement. The Claimant’s solicitors did not provide any definitive response. Eventually, the Defendant’s solicitors made an application seeking revocation of the Claimant’s right to rely upon their expert, resulting in the Claimant then making an application to seek permission to rely upon a new expert, which was granted on the basis that the judge thought the facts set out disclosed substantial and impermissible interference in the expert statement process by those acting for the Claimants. He said such interference was clearly contrary to both authority and the applicable guidance by the TCC.
When considering the question of a replacement expert, the court had to have regard to the overriding objective of enabling the court to deal with cases justly and at a proportionate cost. A considerable factor here for the court in allowing a replacement expert was that the trial date would not be affected.
In a witness statement to support the Claimant’s application, the partner with overall supervision of the Claimant’s claim stated that “I accept that my firm did not comply with the applicable rules and guidance. In particular, I accept that we made comments on and proposed amendments to draft 3 of the Joint Statement that we were not permitted to make.” He also confirmed that his firm had provided comments on and proposed amendments to drafts 2, 6 and 7 of the joint statement that they were not permitted to make. He stated that this non-compliance arose through a failure to understand the applicable rules and guidance.
Reference was made to The Technology and Construction Guide (TCC Guide), paragraph 13.6.3. It states:
“Whilst the parties’ legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement.”
The principles that govern expert evidence must be carefully observed, both by the experts themselves and their legal representatives. If experts are unaware of the principles, then they must have them explained to them by their instructing solicitors. Every expert should read CPR Part 35 and Practice Direction 35.
PD35 9.7 states: Experts must give their own opinions to assist the court and not require the authority of the parties to sign a joint statement.
The Practice Direction also gives clear guidance on who should be present at the meeting.
PD35 9.4 states: Unless ordered by the court, or agreed by all parties and the experts, neither the parties nor their legal representatives may attend experts’ discussions.
Any joint statement must be put into writing and signed by the experts.
PD35 9.6 states: A statement must be prepared by the experts dealing with 9.2 of PD35 (as above). Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.
PD35 9.8 states: If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.
Conclusion
The role and duties of an expert witness are embedded within CPR Part 35 and Practice Direction 35. An expert can meet the specific requirements of the role of an expert witness to a professional standard by familiarising themselves with the rules and guidance within CPR Part 35. At all times, the expert must act in accordance with his or her overriding duty to assist the court on matters within his or her expertise and should not be drawn into attempts by their representatives to draft or amend the joint statements for them. See Writing Medico-Legal Reports in Civil Claims – an essential guide by Giles Eyre and Lynden Alexander (2nd Edition).