You may remember that Lord Woolf had as one of his objectives of the new Civil Procedure Rules (CPR) the reduction of the cost of litigation. He discovered that expert evidence accounts for a large tranche of pretrial costs and he resolved to do something about it.
Expert evidence is costly, not because expensive experts spend too long in the witness box giving evidence, nor because they spend too long sitting in a court room, taking and passing notes while their opposite number gives evidence, although this sometimes happens. The total expert bill is usually large because it is necessary to involve people who understand technically complex issues, who have experience of analysing them, presenting them in digestible form and explaining them to a slightly baffled tribunal, persuasively and with confidence.
Ideally these people should be involved from the outset and inevitably they do not come cheap. Multiply their likely bill by the number of parties to the action and you have the sort of staggering figure Lord Woolf vowed to reduce.
One of his early ideas was that there should not be one expert for each party but instead only one expert appointed by the court. This notion ran into all sorts of difficulties early on and the general view was that a courtappointed expert would just end up increasing the expert head count by one.
Instead, the CPR provide for a single expert to be jointly instructed by the parties. Although in certain cases this may be an obvious course, in run-of-the-mill construction cases, the prospect of the parties jointly instructing one expert creates more problems than it solves. For cases involving defective buildings, for example, the real problem is identifying the discipline of the expert, particularly if the defendants are the usual mixture of contractors, specialists and professionals.
A building surveyor may be able to explain why the roof leaks but they cannot say whether the design impugned the competence of the architect. Even if the parties can agree on the appropriate discipline it is unlikely, human nature being what it is, that they will agree the identity of the individual expert. Even straightforward cases involving, for example, allegations of surveyors'negligence, can generate all manner of debate about experience of local geography, market peculiarities and the idiosyncrasies of the particular location which render every likely candidate unacceptable.
It seems that the court is increasingly being required to break the ensuing deadlock either by making its own choice or by calling upon the dispute resolution services of, for example, the RICS to appoint an expert.
Once the expert has been jointly appointed, the parties wait with baited breath to receive the expert's report. The big question, then, is whether the joint expert's views on liability or quantum or whatever will effectively put an end to the litigation.
The Court of Appeal recently considered this point in a personal injury case, Daniels v Walker. The claimant had been seriously injured in a collision with the defendant's car. The expert jointly instructed by the parties recommended that the claimant receive full time residential care. The defendant's insurer was unhappy with the decision, primarily on costs grounds and wanted the claimant examined by its own expert.
The Court of Appeal, headed up by Lord Woolf himself, indicated that in most cases the parties should be satisfied by the decision of the joint expert. If the sums of money at stake are sizeable, or the reasons for challenging the expert's views were more than fanciful, the defendant ought to be allowed to obtain a second opinion. The court went on to say that where a second expert was permitted, the experts should try to agree their evidence.The giving of oral evidence by both experts should be seen as a last resort.
It is clear, therefore, that the courts would like to think that the parties will accept and be bound by the joint expert's opinion. Now that they have been told that they do not have to, it remains to be seen whether they will.