When formulating the new Civil Procedure Rules (cpr), Lord Woolf was of the view that one of the major generators of unnecessary cost in civil litigation was expert evidence. In his report 'Access to Justice' he noted with distaste that a large litigation support industry, which generated a multi-million pound fee income, had grown up among professions such as architects. You could tell from the trenchant style of his prose that he was resolved to put an end to it all.
Part 35 of the new cpr, which deals with experts, may well do just that. It gives the courts power to order that expert evidence be given by one expert only. The notion of a court-appointed expert has been much debated over recent years. Although superficially attractive, it could cause more problems than it solves. Who is to pay these experts? Are the parties to be allowed to question them, or are they to be foisted with an opinion untested by cross examination? How would they know what to ask without input from an expert of their own? How can the parties be protected from discreditable or plain lazy experts?
Part 35 of the cpr addresses some of the practicalities of court-appointed experts without tackling the fundamental principle. Owners of defective buildings, for example, tend not to know what the problem is, or who may be responsible for it, until the defects have been investigated by an expert. Under the cpr introduced on 26 April, however, prospective litigants should not consider instructing their own expert without first investigating the possibility of instructing one jointly with the other side. Failure to do so could incur the wrath of the court which may refuse to allow the expert's report to be used at all or may order that a second expert be jointly instructed by the parties. Either way the rash litigant will have to bear the cost of their original mistake.
Where a single joint expert is instructed, the parties are encouraged to agree on his or her identity, failing which the court can make a selection from an existing list or by some other means.
Experience from the world of arbitration has shown that once the parties have fallen out, they cannot agree on anything, least of all the identity of an arbitrator. In fact, they are highly suspicious of the names put forward by the opposing party. Despite the protestations of their legal advisers, who may be better placed to assess the abilities of available arbitrators, the parties invariably end up with their tribunal being appointed by the president of one of the professional bodies, such as the riba or Chartered Institute of Arbitrators.
The basis upon which presidential appointments are made varies from body to body. The criteria used are not well publicised and, much as they may resent the label, from the parties' point of view it is still something of a lottery.
Even if the parties can agree on the choice of expert, they are unlikely to agree upon the terms of reference. The cpr provide that both parties may send instructions to the expert, provided that they copy in the opposition. The cpr go further however, giving the court power to decide upon the issues to be referred to the expert, dictate what investigations should be carried out and determine the limit of fees to be incurred. Thus the experts of the future will find themselves responding to the demands of not one master but of at least three, each of the parties plus the court.