Joint Experts Statements and Reports

Joint statements of experts for each party to a dispute are not compulsory unless they are specifically ordered by the Court.

Paragraph 9.1 of Practice Direction 35, (which supplements Part 35 of the Civil Procedure Rules) states that “parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so when.”

The purpose of discussions between experts is not for the experts to settle cases on behalf of the party they are representing but to try and agree and narrow as best as they can the issues between the parties and in particular to identify

(i)            the extent of the agreement between them;

(ii)           the points and short reasons for any disagreement;

(iii)          action, if any, which may be taken to resolve any outstanding points of disagreement; and

(iv)         any further material issues not raised and the extent to which these issues are agreed.

As a result of this, the joint statement of the experts should focus upon the areas of disagreement, apart from the necessity for the claimant’s expert to consider and respond to material, information and commentary included within the defendant’s expert’s report and vice versa.

A joint statement may therefore include the claimant’s expert’s comments on the defendant’s expert’s report and the defendant’s expert’s response to such comments.

If the experts have been working from the same basic information and documentation, there should be “common ground” between them, and they should also be able to agree matters of fact without any difficulty. This is the theory but does not always occur in practice. However, and where new facts come to light, it is of course always open for experts to prepare supplementary reports covering specific issues.

Joint experts statements and reports are likely to add significant value to a dispute by assisting the parties and the Court in summarising the differences between the experts which will have an influence not on the way the parties consider their respective positions in the dispute (which may then encourage settlement discussions) but ultimately will assist the Court in making a decision.