The importance of getting agreement between experts
When the late Judge Newey qc, Official Referee, first suggested that expert witnesses should meet to discuss disputed issues before the case went to trial, most people thought it was a jolly good idea. In some cases it is only the experts who really understand the subject matter of the dispute, and in others they bring a breath of common sense to the proceedings, often for the first time.
Most cases benefit from frank discussion between experts, usually once the issues have been defined but before reports are exchanged. Problems arose, however, as to the status of these meetings, particularly when the experts reached a measure of agreement, or even more dramatically, total agreement, over matters in dispute. In Richard Roberts Holdings v Douglas Smith Stimson Partnership (1989), for example, the quantum experts met during the course of the trial and appeared to agree the total sums to be paid by the defendants. It turned out that the agreed sum was less than had previously been offered by the defendants in settlement and that the plaintiffs risked losing their right to recover the (not inconsiderable) sums spent in costs, if the agreement were binding.
As a result of that case and other similar experiences, experts' meetings became less effective, either because the experts were instructed not to agree anything or because they were told to revert to the lawyers for ratification of any agreement reached. This practice has been frowned upon by Lord Woolf for undermining the objective of the experts' meeting. He has recommended that it should be unprofessional conduct for an expert to be given or accept instructions not to agree.
These problems were considered afresh by tcc Judge Bowsher qc in Robin Ellis Ltd v Malwright Ltd (1.2.99). He explained that the court orders experts to meet 'without prejudice' before trial because it is in the public interest that the parties should be able to hold frank discussions and put their cards on the table with a view to resolving their dispute without fear of reprisals should the matter proceed to a trial. The experts should be able to consider and refine their evidence as far as possible and even, if appropriate, change their minds. This is done for the benefit of the court. The parties interfere with that process at their peril and risk the judge preventing their expert giving evidence at trial.
The objective is that the experts will either reach agreement or at least narrow the scope of the dispute. In doing so, however, they are not settling the action nor producing an agreement which is binding on the parties. Unless the experts have received express instructions giving them some special additional authority, they have no power to bind the parties by their agreement.
For meetings held before trial this is generally understood to be the position. Once the trial commences, however, experts are often encouraged by the judge to meet to discuss issues, particularly to try to agree quantum.
To avoid the problems experienced in the Richard Roberts case, the judge said it was essential that the role of the experts should be made clear: either they are to meet further to define the issues for the benefit of the court or they are meeting with the authority of the parties to settle the disputed sums. If not, the parties may find themselves embroiled in a trial-within-a-trial, with evidence being given by experts, solicitors and counsel, to establish whether an unfavourable experts' agreement is binding upon them.