Joint Single Experts

Peet v Mid-Kent Health Care Trust (CA TLR 19 November)

Although in some cases it was difficult to restrict medical evidence because there could be difficult issues as to the appropriate form and standard of treatment, this difficulty did not apply to non-medical evidence. CPR rule 35.7 permits the court to require the parties to use joint experts. In the absence of special circumstances, the appropriate way that power should be exercised is to require a joint expert to give non-medical evidence rather than an expert from each party. In the normal way there should be no need for the report of that expert to be amplified or tested by cross-examination. The assumption should be that the single joint expert’s report was the evidence. Any amplification or cross-examination should be restricted as far as possible. The fact that the sums at stake were substantial did not justify a departure from that general approach. To have contested issues over the evidence given by non-medical experts could make the litigation disproportionate. Quite apart from the additional costs incurred, the stress and anxiety caused to the claimant and the delay had to be borne in mind. Paragraph 35.7.1 of the White Book stating ‘If a single joint expert is called to give oral evidence at trial it is submitted … that both parties will have the opportunity to cross-examine him/her, but with a degree of restraint, given that the expert has been instructed by the parties’ might be applicable in some cases, but it certainly should not be regarded as being of general application.