Experts always have to remember that they are there to help the court, even if they are instructed, and paid, by one party.There are inevitably tensions created by this system.Single joint experts, on the other hand, receive instructions from both sides, the contents of which are known to both parties.One of the perceived benefits of single joint experts is that they are untainted by being the claimant's, or the defendant's, expert.
Their views frequently swing the balance in a case firmly in one direction, often resulting in settlement. It follows that the potential influence of a single joint expert is great, so they should be chosen with care. In the recent case of Smolen v Solon Cooperative Housing Services (12 August 2003) the Court of Appeal considered a case in which a claimant managed to have a single joint expert removed because the defendant's solicitor had instr- ucted him before.The decision raises points of interest about considerations that arise when appointing a single joint expert, and the problem of paying him if he is removed.
Mr Smolen owned some houses in east London. The houses were in disrepair, and he let them to Solon for six years under an agreement by which Solon would carry out works to the houses and then let them to tenants. Mr Smolen and Solon fell out about the works that Solon carried out, and the lease was terminated. Mr Smolen claimed damages, while Solon argued that it had done the work that it was required to do.
The Technology and Construction Court ordered that Mr Reddin, a surveyor, should be appointed as single joint expert. It later came to light that Mr Reddin had been instructed on many occasions by Solon's solicitors on behalf of other clients.
Mr Smolen complained - presumably because justice should not only be done but be seen to be done - that Mr Reddin was not visibly impartial.The judge ordered Solon's solicitor to produce a witness statement setting out details of instructions they had given to Mr Reddin for the preceding two years, and instructions given to Mr Reddin in relation to Solon for the preceding four years.
This evidence was considered when the matter of Mr Reddin's appointment came back to court for a decision.Solon argued that Mr Smolen's real objection was that Mr Reddin's report was unfavourable for him. But although the judge made no finding against Mr Reddin, it was decided that Mr Smolen's concerns about the expert's possible lack of impartiality had some substance. The judge reluctantly ordered the removal of Mr Reddin.
However, the sting in the tail for Mr Smolen was that he was ordered to pay half the costs of Mr Reddin, having been instructed in the first place, including Mr Reddin's fees.
Mr Smolen appealed the decision that he pay half the costs.
The Court of Appeal refused to reverse the costs order. There had been no impropriety in the instruction of Mr Reddin, it was simply that Mr Smolen's attitude towards him was understandable. In other words Mr Reddin could have continued but for Mr Smolen's objection, and was entitled to be paid for what he had done.
This judgment tells us that a single joint expert who has previously been instructed by one party may quite properly be appointed, and proceed without fault, but still be removed at a later stage if their previous dealings with one party or their solicitor come to light and the other side objects.
Such an exercise is wasteful of both time and money. It is notable that Mr Reddin's previous association with Solon's solicitor only emerged after he had started to act.
Presumably, if Mr Smolen had known about it from the outset he would either have objected then, and Mr Reddin would not have been instructed, or Mr Smolen would have acceded to the appointment, in which case the court would have taken a rather dimmer view of his subsequently seeking Mr Reddin's removal.
The moral of this case seems to be that when a single joint expert is to be instructed, their previous associations with any party or their lawyer should be made clear at the outset, so that any objection can be dealt with before substantial costs are incurred. If this does not happen, the expert risks removal.