Discussions between experts are not mandatory. They are, however routinely ordered by the courts to reduce court time, limit legal costs, and encourage settlement between parties.
Our Q&A provides a useful summary of what these discussions might involve. It also outlines how experts can communicate and conduct themselves more effectively to work to best practice standards.
1. Why do the courts order discussions between experts?
The purpose of discussions is to identify agreed areas and disagreed areas, and the reasons for any disagreement. This will allow the judge to gain a much clearer understanding of the outstanding issues in dispute. And ultimately it will help them decide how many hours of court time need to be allocated to the case.
Discussions may encourage the parties to come to a realistic settlement, but it is not the primary aim.
2. What aspects of joint discussions do experts find most difficult?
One of the main issues that occur between experts are personality clashes or differences in attitude and behaviour. For example, an expert might decide to enter discussions in a more contentious or aggressive manner. This is unlikely to be well received by their counterpart.
Other challenges can include:
- An expert feeling intimidated by their counterpart due to their experience, employer, or job title. This can lead to them ceding points in a discussion that perhaps they should stand firm on.
- An expert facing an opposing expert who appears to be an advocate for the party that has instructed them, who refuses to even attempt to seek agreement on any opinions reached by both experts.
3. What can experts do if they come across a difficult counterpart?
Dealing with (and overcoming) difficult and potentially aggressive personalities should form part of an expert’s preparation and/or training.
One tip is to remind yourself of your role and the purpose of the discussions. You are there to discuss the issues, to narrow them down and reach agreement (where possible), as well as highlight any issues that remain in dispute.
If the other expert is being obstructive, you could remind them that you are both working towards the same ultimate purpose. If they are still being obstructive, challenge their behaviour.
The purpose of discussions is to produce a joint statement. If the judge doesn’t get it, then they will want to know why. The complication, however, is that what is said in the meeting cannot be referred to in court without the agreement of both parties. Therefore, it would be difficult to tell the judge about obstructive behaviour.
Instead, you could offer to draft the joint statement, noting that you attempted to discuss issues but were unable to do so. This may lead to action and a more productive meeting.
4. What part do instructing solicitors play during these discussions?
Experts should be aware of the recent case of Patricia Andrews and others v Kronospan Ltd [2022] EWHC 479. Here, the claimant was prohibited from relying on their expert’s evidence due to his inability to remain independent.
This case serves as a timely warning on the limits imposed by the law on the working relationship between experts and their instructing solicitors.
Once experts have begun their joint discussions, it is essential that they are siloed from their instructing solicitors and left to prepare their joint statement without any outside influence.
For more information, please follow this link
5. Are there any aspects of these discussions that might prove difficult?
Where experts are of similar experience, discussions can become a point scoring exercise or a high-level academic debate, rather than a focused discussion on the issues in the case.
Another potentially difficult area is inequality of numbers. For example, an expert might act on a case where the other side has appointed more than one expert. This could prove quite daunting even for the most experienced expert. It would be more than acceptable for them to arrange to meet each expert separately.
6. Are they any implications for experts who fail to comply with their duty?
Part 35 of the CPR clearly states that:
(1) it is the duty of experts to help the court on matters within their expertise; and
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
This overriding duty should be at the forefront of an expert’s mind when participating in joint discussions. Particularly, in circumstances where they find themselves entering discussions with an adversarial counterpart, or if their original opinion was compromised/influenced and could not be supported by sound reasoning and evidence.
This duty to the court may cause experts to legitimately change their mind. If that is the case, they should inform their instructing party as soon as possible.
The landmark case of Jones v Kaney (2011) should be noted here, where an expert fundamentally changed their opinion in a discussion/joint meeting, which led to the Supreme Court removing expert’ immunity from suit.
This Q&A provides only a flavour of the types of issues involved in discussions between experts.
If you would like a more thorough, in-depth understanding of what these discussions entail, the court procedure rules that govern them and how to conduct yourself appropriately and compliantly, then please book onto our half-day Discussions Between Experts public course.