All for One or One for All?

Originally published in January 2002

We are all familiar with the idea of "our expert". We instruct an expert to advise, we discuss his views - often in conference - and, if he supports our case, we serve his report on the other side. That pattern has been eroded by the concept of single joint experts, but at least we have had a say in when to agree a joint expert and when to instruct our own. That may now be changing.

In the recent case of MP1 , the Court of Appeal was asked to consider whether a party could have sole access to a jointly instructed non-medical expert witness. Lord Woolf (Lord Chief Justice) took the opportunity to give detailed guidance of a more general nature concerning the use of non-medical experts in clinical negligence claims. Lord Woolf's comments are likely to have significant repercussions.

In MP (a cerebral palsy claim brought on behalf of a five year old child), the parties had agreed to a court order appointing joint non-medical quantum experts in seven disciplines. The claimant's parents subsequently decided that they wanted some of the experts to attend a conference with the claimant's counsel, without there being any representative of the Trust present. Unsurprisingly, the Trust considered that proposal to be unacceptable, and the parents applied to Master Ungley to give a ruling.

The Master agreed with the Trust that it would not be appropriate for a conference of that nature to take place, and the application was refused. The matter came before the Court of Appeal on 5 November 2001.

Sole Access

The claimant's appeal was unanimously rejected by the Court of Appeal. The court considered that it was entirely inappropriate for an expert who had 2 been jointly instructed by both parties to attend a conference with the lawyers for one side but not the other. The Court of Appeal endorsed the advice set out in the code of guidance for experts, published by the Academy of Experts on 1 June 2001. The code recommends that single joint experts should not attend any conference that is not a joint one, unless all the parties have first agreed in writing. As there was no such agreement from the Trust in this case, the parents' application was refused.

Use of Single Joint Experts

The court's ruling on the "sole access" point contained few surprises, but Lord Woolf's comments concerning the use of jointly instructed non-medical experts in clinical negligence cases are of wider significance.

Lord Woolf made it...