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15

T

he single joint expert (SJE) is not new.

LordWoolf introduced the concept some

20 years ago but it has not proved

particularly popular. However, given the

continual pressures on costs and efficiency,

particularly in the injury litigation landscape, I

can see the renewed attraction that the SJEmay

have to the courts. But what are the problems

and can the single expert bemade to work?

Little change

In his final‘Access to Justice’report (1996), Lord

Woolf acknowledged that therewas such a

considerable strength of opposition to his proposal

for the use of SJEs that it was not realistic to expect a

significant shift towards single experts in the short

term. Instead, he concluded that the parties and

procedural judges should always consider whether

a single expert could be appointed in a particular

case (this led to Civil Procedure Rules (CPR) 35.7).

In terms of injury litigation and the use of single

experts for loss quantum, my experience has been

that things haven’t really shifted since then.

I have seen little appetite (fromeither side) for

accountancy expert evidence in injury claims to be

given other than byway of the party expert.

In contrast, I have found the use of SJE

accountancy evidence reasonably common in

family finance proceedings, wheremy experience

suggests it works reasonablywell.This is probably

because the parties are dealing with a finite

‘financial pot’and typically the issue being

addressed is narrowly defined (e.g. the value of

a business interest and/or scope for raising

additional funds).

Cost savings

The‘driver’for using single experts has to be cost

– that is, the theoretical potential to save costs by

instructing just one expert with, in the majority of

circumstances, just one report, and nomeeting of

experts or joint statement (which can take several

drafts).

The saving of costs should not, however, be

presumed to be a given.This is because theremay

be associated cost increases in other areas – as

considerablymore time and effort is taken over

instructing the SJE, written questions are almost

invariablymore lengthy, and asked by both sides,

and partiesmay evenwish to test the expert’s work

(via a shadowexpert), perhaps in order to decide

whether they canmuster sufficiently reasonable

grounds to instruct a further expert themselves.

Risk of bias

There may be a natural presumption by procedural

judges that it is cheaper to use just one expert, and

that the SJE’s evidence will be more impartial than

that of a party expert.

However, stepping back a little fromconstraints of

costs and efficiency, the downside for the court has

to be that, with a single expert, it loses the

opportunity to see the full range of opinion that may

legitimately exist. Despite the stringent demands of

CPR 35, it is still not uncommon inmy experience to

see experts across a range of disciplines, not just

quantum, ignore such vital aspects of the rules (and

the Civil Justice Council (CJC) guidance) as the range

of opinion, whichmust be stated but is often

ignored, and the importance of reporting on

separate factual hypotheses.

As a result, the court often does not get to

consider which evidence it prefers over the

reasonable variation that may exist in a particular

field of expertise.

Further, there is the danger that the court

may be exposed to bias or prejudice on the

part of a single expert –while the SJEmay be

impartial as between the parties, the samemay

not necessarily be true of bias towards a certain

>>

Richard Formby

considers the pros and cons of using single experts on quantum matters

and asks whether appetite for their use with injury claims will increase

Single joint experts:

A new dawn?

Richard Formby is an accountancy

expert witness and a partner at

Monahans Chartered Accountants

@MonahansAccount

www.monahans.co.uk

SJ 160/6

Expert Witness Supplement Spring 2016

FEATURE

FORENSIC ACCOUNTING