What should an expert do when new evidence appears shortly after a meeting of experts?
A recent call to the Register Helpline raised a query about joint statements following a meeting of experts under the provisions of the Civil Procedure Rules (CPR) 35.12.
The expert concerned had met with his opposite number and they agreed the content of a joint statement. However, between that meeting and the agreed statement being sent over for signature, the expert was given new evidence that caused him to alter his opinion.
The expert now saw that the previously drafted statement did not reflect his opinion and suggested a modified version. His opposite number rejected the request and insisted that the original statement had to be signed. What should the expert do?
There is some helpful guidance contained in the Civil Justice Council’s Guidance for the Instruction of Experts in Civil Claims (2014):
14. Experts should inform those instructing them without delay of any change in their opinions on any material matter and the reasons for this…
64. It may become necessary for experts to amend their reports:
(a) as a result of an exchange of questions and answers;
(b) following agreements reached at meetings between experts; or
(c) where further evidence or documentation is disclosed.
66. Where experts change their opinion following a meeting of experts, a signed and dated note to that effect is generally sufficient. Where experts significantly alter their opinion, as a result of new evidence or for any other reason, they must inform those who instruct them and amend their reports explaining the reasons. Those instructing experts should inform other parties as soon as possible of any change of opinion.
Based on this guidance, it seems that it would not be proper to sign the previous joint statement – it no longer reflects the expert’s opinion and would simply confuse matters. But further, the purpose of the joint statement is to set out those issues on which the experts agree and those on which they disagree, with a summary of their reasons for disagreeing. Trying to use the joint statement to deal with the new evidence the expert has seen, and its effect on his opinion, is stretching it too far.
In accordance with paragraph 66, for a change of opinion significant enough to disrupt the previously agreed (but not signed off) joint statement, the expert should write an addendum to his expert report. With that done, it may be necessary to consider whether a further meeting of experts was required.
Of course, if the experts had already signed off the joint statement before the new evidence came to light, the addendum to the expert’s report could detail those areas of the earlier statement that were now superseded. It is the view of many experts that, where a face-to-face meeting takes place, getting the joint statement signed off at the meeting is best practice. Where that isn’t possible, wise experts are quick to take on the responsibility of drafting the statement and getting it signed.