Abandoning a Single Joint Expert

The single joint expert’s decision can often have a decisive effect upon the viability and outcome of a given claim, particularly a disease claim.

If the expert’s opinion is unfavourable, the aggrieved party will want to try and salvage the position.

Unfortunately, given how busy single joint experts often are, by the time the report is delivered to the parties, there is limited time available before the trial to try to rescue the position, whether by Part 35 questions (although technically these are not for challenge but clarification) or by obtaining fresh, unilateral expert evidence.

It can be very difficult, almost unheard of, to persuade a trial judge to depart from a single joint expert’s opinion. The decision relating to ‘uncontroverted expert evidence’ in Griffiths v TUI [2020] EWHC 2268 (QB) – albeit currently pending an appeal – makes departing from the single joint expert’s opinion even harder.

A new expert can be instructed at any time by either party. What really matters is whether the court will permit a party to rely on that expert evidence in due course.

The authorities indicate that such an application will need to be made on notice and swiftly.

The authorities also indicate that the party seeking new evidence (and therefore to be ‘released’ from a single joint expert’s unfavourable opinion) will also need to show that it will be proportionate to the value and complexity of the issues in dispute.

In Daniels v Walker [2000] 1 WLR 1382 the defendant was dissatisfied with a single joint expert’s report, which was considered to be too generous to the claimant in terms of how it characterised his care needs and the consequential, high-value claim to which it gave rise.  The defendant sought permission to abandon the joint expert and to appoint its own expert evidence dealing with the claimant’s potential care needs.

The trial fixture was not at risk and, although the additional expert evidence would increase the costs, this was a high-value case and the Court of Appeal considered it proportionate in the circumstances to allow the defendant’s application.

In Bulic v Harwoods [2012] EWHC 3657 (QB) the central issue was what had caused a car engine to fail. A judge had made a case management decision refusing the claimant permission to call his own engineering expert and limiting the parties instead to a single joint expert on that issue.

At first instance, the claimant, who was unhappy with the single joint expert’s conclusions, sought permission (a week before trial) to instruct his own engineering expert and for the single joint expert to become the defendant’s expert.  The claimant’s concerns included that the single joint expert lacked the requisite expertise and had previously accepted instructions from parties related to the defendant (matters which could and perhaps should have been established before the parties agreed to the expert’s instruction), as well as the more fundamental complaint that the expert had inadequately analysed the facts of the case before reaching his decision. The judge refused the claimant’s application. The claimant appealed.

Eady J, in allowing the appeal and permitting the Claimant to rely upon its own engineering evidence, observed that:

• the issue upon which the single joint expert was reporting was both central to the case and highly technical;
• therefore, the court would be more likely to be assisted by comparing between the opinions of two experts;
• whilst the case was of far lower value than in Daniels v Walker, the court felt that this was not a decisive factor: fairness to the parties and the need to avoid ‘trial by expert’ on a controversial and complex point outweighed it; and
• the obiter comments of HHJ MacDuff QC (as he then was) in Kay v West Midlands Strategic Health Authority (unrep. 2007), to the effect that it would only be in “exceptional” cases that permission would be given to depart from a single joint expert’s opinion, did not establish any hard and fast rule: instead, each case turned on its own facts, and each application on its own merit.

In Hinson v Hare Realizations Ltd [2020] EWHC 2386 (QB), a standard noise-induced hearing loss claim limited to £5,000, the single joint engineer had concluded that conditions in the defendant’s premises would not have been noisy enough to have given rise to a foreseeable risk of injury.  The claimant’s solicitors had then come into possession of certain arguments which might undermine the single joint engineer’s views and approach. The claimant put further Part 35 questions to the single joint engineer, based on these new arguments, but the engineer maintained her original view.

The claimant obtained a new engineer’s report, but time had been marching on, and that report only came into the claimant’s possession 3 days before the trial. It was, not unsurprisingly, favourable to the claimant, and so the claimant made an immediate application for:

• permission to rely upon the unilateral engineer’s report;
• permission for the previous single joint expert to become the defendant’s expert;
• vacation of the trial date three days later; and
• re-allocation to the Multi-Track.

There was no time to hear that application before the morning of the Fast Track trial.

The trial judge accepted that the claimant had lost confidence in the single joint expert’s opinion and that the expert’s opinion was likely to be decisive on the liability issues in the case. However, she dismissed the application on the basis it would cause the loss of the trial date and would be disproportionate in the context of a £5,000 Fast Track case. The trial judge went on to hear the trial, dismissing the claim on the basis that the claimant could not establish a breach of duty (in reliance upon the expert engineer’s evidence). 

The claimant appealed the trial judge’s case management decision relating to the single joint engineer. Martin Spencer J, observing that the purpose of the appeal was to review the trial judge’s decision (it being an appeal against a case management decision over which judges had a broad discretion), found that the trial judge had not erred in the exercise of that discretion and had carefully evaluated all the relevant factors.

Practice Points

It is clear that any application to abandon a single joint expert should be made as soon as practicable, so as to avoid it being heard where possible on the morning of trial.

Such an application is only likely to succeed if the issue upon which the expert is commenting is particularly technical, is a decisive issue in the case, and/or the case is of sufficient financial value or importance to justify interfering with the timetable and vacating any trial date (if necessary).

This can cause difficulties in disease cases, where single joint experts’ reports typically arrive at the very end of the case management timetable, giving little room to manoeuvre and little time to deal with the appointment of a new expert.

It would therefore be wise to consider giving the single joint expert a little less time within which to report, or to consider building some additional time into directions at the back end of the timetable, in the event that an application of this sort has to be made.