10. What are a joint examination and a joint expert report?

The court may direct experts instructed by different parties to conduct a joint examination and prepare a joint expert report. This means that the experts examine the relevant person, object, place or records together, and then produce one report setting out their agreed and disagreed views.

This procedure is different from the appointment of a single joint expert (“SJE”). A SJE is one expert appointed to give evidence for all parties. By contrast, in a joint examination, each party may still have its own expert, but the experts are required to work together for the purpose of the examination and report.

How the joint examination should be conducted

A proper joint examination should be carried out by all relevant experts at the same time and on the same day. This helps ensure that the experts are considering the same condition, evidence or circumstances, rather than forming views from separate examinations conducted at different times.

Each party should also provide the other party with a copy of the letter of instruction given to its expert. This promotes transparency and reduces the risk that an expert’s opinion is influenced only by one side’s presentation of the case.

Experts should not send draft reports to their instructing parties for comment before the final joint report is prepared. The purpose of the joint process is to allow experts to express their professional opinions independently and to discuss matters directly with each other.

Why the court encourages joint examinations

The courts encourage joint examinations because they can reduce disputes and save time and costs. If experts examine the matter separately, they may produce different findings simply because they observed the matter on different occasions. This may lead to further reports, replies and disputes.

A joint examination helps avoid this problem. It allows the experts to identify the real points of agreement and disagreement at an early stage. It may also reveal matters that one expert has overlooked. As a result, the issues for trial can become clearer and narrower.

The process may also moderate extreme or partisan views. When an expert has to explain and justify an opinion to another expert in the same field, the opinion may become more balanced. This can assist the court and may also encourage a reasonable settlement before trial.

Professional independence in the joint process

Experts must exercise independent professional judgment during the meeting and the drafting of the report. They must not act on any instructions from their clients or solicitors to withhold agreement or to avoid reaching a consensus on matters within their expertise.

What the joint expert report should contain

The joint expert report should be signed by all experts who took part in the joint examination. It should clearly identify the matters on which the experts agree and the matters on which they disagree.

Where the experts disagree, the report should explain the reasons for the disagreement in a clear and understandable way. It is not enough simply to state that the experts hold different views. The court needs to know why they disagree so that it can understand the issues and assess the expert evidence properly.

“Cut and paste” reports are not acceptable

The court has criticised reports described as joint expert reports where, in reality, the experts did not conduct a genuine joint examination. A report which merely combines or “cuts and pastes” parts of separate reports is not a proper joint report.

If the court considers that the joint report is not genuine or has not been properly prepared, it may order a fresh joint examination. In an appropriate case, the court may also direct that the fresh examination be conducted by different experts.

Use in personal injury and employees’ compensation cases

Joint examinations and joint expert reports are particularly important in personal injury and employees’ compensation cases. Practice Direction 18.1 provides that, where each party chooses to instruct its own expert, this joint procedure should be followed.

This reflects the court’s case management approach. Expert evidence should assist the court, not create unnecessary disputes or costs. A properly prepared joint report can help the parties and the court focus on the real medical or technical issues.

Consequences of non-compliance

Parties are expected to comply strictly with directions relating to joint examinations and joint expert reports. If the court has ordered a joint report, a party should not obtain and rely on a separate expert report without first obtaining the court’s permission.

A party who does so may be treated as having undermined the court’s case management process. The court may refuse to admit the separate report as evidence.

Similarly, if a party unreasonably refuses or fails to cooperate in arranging a joint medical examination before proceedings are commenced, that party may face sanctions from the court. These sanctions may affect costs or the party’s ability to rely on expert evidence later in the proceedings.