by Alec Samuels
Words: SJE - expertise - conflicts - solicitors
Abstract: The selection and instruction of the SJE - the risks - the fee - conflicts of interest - change of opinion - constraints on SJE - the role of the solicitor
Today the use of the single joint expert SJE is becoming increasingly common because of the difficulty of obtaining legal aid, the need to contain the costs of litigation, and encouragement by the judge who often likes the system as it can smooth the progress of the case. The SJE may be of such high quality, standing and reputation that it is very unlikely that anybody would wish to challenge his opinion. In nearly half the cases in which an expert appears he is an SJE. The SJE is likely to narrow the issues, because he is the sole determinant of the opinion upon the issues (although of course the parties will both give instructions). The NHS defendant is anxious to save money. The SJE is particularly suitable in the smaller value cases, where the issue is essentially a straightforward one of fact, and where the issue is a valuation of property or assessment of quantum for damages.
However, there are possible disadvantages and risks for the parties which may make them hesitant or reluctant or unwilling to agree to a SJE. Although every expert is independent and impartial and transparent and conscious of his duty to the court, the SJE is even more so. The judge may gently question him first. The judge may not welcome too much challenge, as the SJE was agreed by both parties. A party can “examine” the SJE, his witness, but must act with considerable restraint. Knowing that he is not going to have to face another expert the SJE may become a little arrogant or over-confident or careless in his analysis and expression of opinion. By virtue of his role the opinion of the SJE is likely to be highly influential in the case. Some parties fear that he may become dominant and in effect remove the adversarial element and virtually decide the case. However, the judge will be sufficiently robust to act judicially, and to keep the SJE within his proper role.
The SJE should state his fee, negotiate that fee if necessary, before accepting instructions, and require payment up front or in any event not later than the release of the report. The fee should never depend upon the outcome of the case, e.g. where a claimant is suing under a conditional fee arrangement, or where the solicitor claims that he is not yet in funds from the lay client. Model terms are widely used, but need to be used with caution because circumstances can differ so much from case to case. Both parties instructing the SJE are jointly and severally liable for the fee. The judge can order the fee to be paid into court. In the light of the experience and qualification of the expert and the time needed to do a proper job, is the modest fee available deterring many experts from taking on work.
Having agreed upon the principle the parties can usually agree upon an SJE acceptable to both. If this cannot be done then the judge may select the SJE or more usually direct the method to be used to identify a suitable SJE.
The SJE may be faced with conflicting instructions. This may be no problem, the expert opinion could proceed on two hypotheses. But the SJE may feel that he needs more and more relevant material, and he should refer back to the parties. The basic facts may be unclear, as opposed to different emphases or inferences. These preliminary problems should be capable of early resolution. If necessary the SJE may always seek advice and instruction from the court.
Timing employing the SJE and the giving of instructions is important. In principle the earlier the SJE is on the scene the better, for the identification of the real issues; and the SJE needs time to do the necessary work. However there is little point in involving the SJE before both parties have got their evidence and witness statements together and a claim and a defence have emerged. Sometimes parties seek some sort of preliminary opinion, so as to sense how things might go, but this is rarely very illuminating, and anyway the expert is usually rightly aware of the limitations of a mere cursory opinion and resistant to the practice. Simms v Birmingham Health Authority  Lloyds Med Rep 382.
Conflict of interest
The SJE must be particularly careful to avoid any possible conflict of interest. He may have had some connection or involvement with one or other of the parties in the past. This must be declared, or alternatively the SJE should withdraw. Though the mere previous professional contact between a party and the SJE does not in itself disentitle the SJE to act again. W v Oldham MBC  EWCA Civ 1247.
Area of expertise
In this age of austerity and the pressure on costs there is pressure to exploit to the full such expert as can be instructed. The consequence is that the SJE may be asked a whole range of questions beyond his real expertise. Although he may wish to be helpful, and he may be a person of considerable breadth of experience, he should strongly resist the temptation to engage. He must clearly draw the line. Otherwise he may be tempted by an advocate to pontificate beyond his expertise and then be convincingly and painfully exposed and discredited. If expert evidence is required in another field of expertise then the SJE should unequivocally say so.
If a party is for any reason dissatisfied with the opinion of the SJE there is nothing to stop him instructing his own expert. But the judge is unlikely to allow the report of the new expert to be given in evidence, and the costs will be irrecoverable from the other side in any event. Guntrip v Cheney Coaches Ltd  EWCA Civ 392. However, the advocate for that party may find material in the new expert report that he may be able to use in challenging the SJE. In exceptional cases the judge may allow a new report to be adduced in evidence by a party, depending upon the value of the claim and the expedition and openness displayed Layland v Fairview New Homes  EWHC 1350. For example, there may be a big dispute over the basis for the calculation of damages, whether the basis should be fulltime or part-time care. There may be good plausible arguable reasons for challenging the opinion of the SJE, such as the nature, number, complexity and importance of the issues, the amount at stake; and there may even be the real possibility of an error by the SJE. Daniels v Walker (Practice Note)  1 WLR 1382, CA. Cosgrove v Pattison  CPLR 177.
The incompetent SJE or the SJE who does not follow the directions of the judge is a rare phenomenon, but should this happen the judge may always dismiss the SJE Kranidiotes v Paschali  EWCA Civ 357. The negligent SJE, like any other witness, is potentially liable for breach of duty, e.g. signing an expert report under pressure knowing it to be incorrect Jones v Kaney  UKSC 13,  2 AC 398, paras 38-62 and paras 116-126.
Although most experts subscribe to high ethical and professional standards, and are of course obliged to observe the court procedure rules when instructed in litigation, the profession of experts is still largely unregulated. Most experts belong to a professional organisation, such as the Expert Academies and Institutes, and accreditation is gradually coming in. In future the legal regulation may be expected to be tightened. The Forensic Science Regulator is expected to introduce tighter rules in the future.
Change of opinion
The SJE is rightly expected to be thorough, measured, consistent and scientific in giving his opinion. Nonetheless it may be perfectly proper and professional to change his opinion, if new relevant material comes to light. Inflexibility would then be a mistake. Any change of opinion and change in the report should be immediately referred to the parties and the court. The SJE is sometimes asked by the solicitor to change his opinion. This pressure must be resisted, unless some very good reason is given by the solicitor, such as reference to very relevant literature or a patently obvious error in the report.
All concerned must scrupulously follow the proper procedure. Being instructed by two firms of solicitors the SJE has two firms to deal with, an added possible complication. The SJE should only meet the parties jointly, not separately, unless the parties agree or a judge so orders. The SJE must submit his clear, concise and unambiguous report simultaneously to the parties and to the court. Peet v Mid-Kent Healthcare Trust  EWCA Civ 1703,  3 All ER 688, clear exposition by Lord Woolf LCJ and Brown and Buxton LJJ.
Solicitors usually like to have personal contact with the SJE, especially if the case looks likely to be going to trial, so as to assess how the SJE is likely to perform in court, and how the advocates should prepare.
Clear and compelling SJE report
The report of the SJE may be so clear and compelling that it may be allowed to stand unchallenged. Or if a series of carefully constructed questions are submitted to the SJE and he gives a series of clear and compelling answers it may not be necessary to call him at the trial; or indeed a settlement may be acilitated.
Not an advocate
The SJE acts upon the instructions, carries out his investigation and analysis, makes his findings, gives his opinion. He does not become an advocate. He makes a scientific report. With integrity he does the best he can as an expert. But he is not using the report as a means of persuasion in the court. How the report is received by the lawyers is of no consequence to him. The expert has no interest in the outcome. He is not trying to assist a party to win. He is assisting the court. He is a scientist or engineer or other such professional, not a lawyer.
The ultimate issue
The role of the SJE, as with any expert, is to find and to analyse the facts or to state an hypothesis and to draw a scientific opinion accordingly. What he must not do is to pass judgment on the ultimate issue, namely liability. It is often not easy to avoid the trap of crossing the line. The SJE must not in a criminal case say that D is guilty, that is matter for the court; nor in a civil case that D was at fault or negligent, or must pay £x.
Solicitors and Experts, Experts and Solicitors
Solicitors criticise experts, and experts criticise solicitors. This sort of collective hostility is unworthy of both. Each have a different but complementary role to play. Each should seek to understand the role of the other, and seek intelligently and sympathetically to co-operate with the other. The solicitor must give clear and ordered and sensible instructions. The alleged facts should be set out. The relevant evidence given. No large unsorted bundle should be just “dumped” on the SJE. All questions should be relevant, pertinent and unambiguous. There should be no “please tell us what you think” approach. So far as possible instructions should be agreed with the other side. The solicitor may even tactfully and discreetly remind the SJE of what a good report looks like: A clear statement of the instructions received; the facts on which the report is based, and the analysis; the sources; the reasons for the opinion; an indication of opposing views and the reasons for any rejection; a clear summary, both at the beginning and the end of the report. The solicitor must explain what the legal procedure requires of the SJE. Is the SJE fully acquainted with the rules? He must keep the SJE fully and constantly informed of the progress of events, and especially the judicial orders, especially time limits its imposed and nowadays strictly enforced by the court. Denton v White  EWCA Civ 906,  1 WLR 3926. He must make a real effort to acquire an intelligent understanding of the scientific medical or technical issues in the case. He should ensure that a qualified solicitor of sufficient standing and experience supervises the more junior staff doing the mundane work for and with the SJE.
Litigants in person
An increasingly large feature in litigation today is the litigant in person LIP, because of the restricted availability of legal aid. Usually the LIP has a limited understanding of court procedure, and needs a lot of support. The approached expert should be extremely reluctant to accept instructions from an LIP, because a host of difficulties could arise. Advise that a solicitor should be instructed, and then instructions to act as a SJE will be accepted.
Civil Procedure Rules 35.
Guidance for the instruction of experts in civil claims,
Civil Justice Council, August 2014.
Do single joint experts work?, Thayne Forbes, Law Society Gazette, 29 April 2013.
Experts in the Civil Courts, Louis Blom-Cooper, Expert Witness Institute, 2006.
Expert Evidence, Halsbury’s Laws, vol 11, paras 835-863, pp 625-653.
© Alec Samuels, 2019