Can the SJE meet with just one of the parties?
Can a Single Joint Expert hold one-to-one meetings with a party to the litigation?
One of our experts, who undertakes a fair amount of SJE work, has written to share with us a particular way of working that he has found to be very effective. He is concerned, though, that it may not meet with the letter of the relevant Civil Procedure Rules!
When on a factory visit with the parties for cases of personal injury, the expert gathers both sides around a table to nail down the points of agreement and disagreement. After the tour, he sits with both sides separately, giving him the opportunity to clarify their statements and for them to tell him anything else they might wish.
He has found this approach to work quite well – most people don’t want to open up completely if the other side is there – and both claimant and defendant solicitors seem to appreciate this way of working.
But does this approach breach the rules governing SJE practice, which are built around the central principle of transparency between the SJE and the parties?
The conduct of the SJE is covered by paras 42‐46 of the CJC Guidance for
the instruction of experts in civil claims 2014, which is drawn into the Civil Procedure Rules by para 1 of the Part 35 Practice Direction.
Conduct of the single joint expert
42. Single joint experts should keep all instructing parties informed of any material steps that they may be taking by, for example, copying all correspondence to those instructing them.
43. Single joint experts are Part 35 experts and so have an overriding duty to the court. They are the parties’ appointed experts and therefore owe an equal duty to all parties. They should maintain independence, impartiality and transparency at all times.
44. Single joint experts should not attend a meeting or conference that is not a joint one, unless all the parties have agreed in writing or the court has directed that such a meeting may be held. There also needs to be agreement about who is to pay the experts’ fees for the meeting.
45. Single joint experts may request directions from the court (see paragraphs 28‐29).
46. Single joint experts should serve their reports simultaneously on all instructing parties. They should provide a single report even though they may have received instructions that contain conflicts. If conflicting instructions lead to different opinions (for example, because the instructions require the expert to make different assumptions of fact), reports may need to contain more than one set of opinions on any issue. It is for the court to determine the facts.
Para 44 is the one that bears directly on this expert’s practice.
In so much as the one-on-one meetings the expert holds are part of the same meeting in which he undertakes the factory tour with them all, he may feel that he is covered. However, to bring his practice completely into line with the rules, the expert could consider drawing up an agenda for the day that includes the separate meetings and asking the parties to sign up to that agenda. In this way he has their written agreement to the separate sessions and he can continue working in this way but with a bit more protection against a disgruntled party should they dislike his opinion after the