Do away with joint experts - who needs them anyway?
When Lord Woolf first proposed that the cost of litigation could be cut if the courts were assisted by only one expert instead of the traditional ranks of experts proffered by each disputing party, some commentators objected fervently.
The case against single experts was put particularly eloquently by construction barrister Anthony Speaight QC. (Actually, he put the case against court-appointed experts particularly pithily. ) 'Who is going to pay for them?' he asked.
'Obviously, it should be the Lord Chancellor's department, and, obviously, they won't. So that is the end of that.'
He also asked: 'What if there is a group of parents who believe that their children have been brain-damaged by a particular drug? What if general medical opinion is that the drug is harmless but there is one expert whose lifetime's research shows that the drug can be dangerous?
Without that expert's evidence the parents' claim for their injured children is hopeless. Should the courts be in the position of choosing between an expert from the majority view, thereby denying the families the opportunity of bringing their claim, and the one expert who may be able to win their case for them?' Makes you think, doesn't it?
Well, we know that the difficulties of courtappointed experts defeated Lord Woolf, and instead he and his civil procedural rules opted for a single expert jointly instructed by both parties.
This is all very well if the parties can agree upon:
the discipline of the expert;
the identity of the expert; and the terms of reference of the expert.
But, of course, very often they cannot and it is a moot point as to the extent to which the court can step in and do it for them.
The problem was illustrated admirably in the case of Oxley v Penwarden (2000), which, in line with Speaight's far-sighted example, was a medical negligence case. The claimant sued his doctor claiming that the doctor failed to diagnose and treat a condition with the result that the claimant's leg had to be amputated. The doctor denied that the diagnosis was negligent and denied that it caused the claimant's condition.
As we have discussed recently (AJ 8.2.01) causation can be a knotty problem in medical and construction cases alike. In this case, the judge, when directing how the case should be prepared, ordered that evidence on the issue of causation should be given by one vascular surgeon only. The judge made it plain that should the parties fail to agree on a single expert, the court would take upon itself the responsibility of appointing one. True to form, neither party approved of this approach and they took the matter to the Court of Appeal.
The appellate court demonstrated remarkable procedural doublethink. It was true, it said, that the object of the appointment of a single joint expert was to do away with the calling of multiple experts where, given the nature of the issue over which the parties were at odds, it was not justified. In this case, however, it was eminently necessary for the parties to have the opportunity of choosing their own expert to investigate the cause of the claimant's condition. The court recognised that the parties would have the greatest difficulty in agreeing on a single expert.
If the judge was then obliged to choose an expert he may have to choose between two different schools of thought on the issue of causation.
The judge's choice would effectively decide an essential question in the case without the opportunity for challenge. This would, of course, be quite wrong, and the parties should be allowed to choose their own experts.
All this, they said, was perfectly in line with Lord Woolf 's proposals. Well, despite the doublethink, when this case is considered together with the earlier decision of Daniels v Walker (AJ 20.7.00) in which even Lord Woolf had to admit that a dissatisfied party should be able to challenge a joint expert's findings with a second expert's views, you can see that there might not be much of a future for the single joint expert.
As Speaight so prophetically illustrated: there is more to justice than keeping down the cost.