8. What is a single joint expert? What are the benefits of calling a single joint expert for the trial?
Appointment of expert(s) or specialist(s) is inevitable when technical issues are involved in a dispute, for example, a case of personal injuries. A single joint expert (“SJE”) is an independent expert jointly instructed by both parties to give opinion evidence on a disputed technical issue in court or tribunal proceedings.
Under Order 38, rule 4A of the RHC or RDC, the court may order the appointment of a single joint expert if it considers this to be in the interests of justice. This may be done even if one party objects.
Under Order 38, rule 4A(5) of the RHC or RDC, in determining whether to appoint a SJE, the court considers, among others, whether the issues can be identified in advance, the degree of controversy, the claim value relative to expense, whether separate expert costs have already been incurred, and potential difficulties in choosing the SJE and drafting joint instructions.
One single report is prepared for the court on questions agreed by both parties; instructions are shared, as well as the fees.
SJE has been advocated and encouraged by the courts recently. In fact, the Practice Direction 5.2, issued by the Judiciary, states that the court will not give permission for a party to adduce expert evidence unless that party has, among other things, considered the appropriateness of appointing an SJE in the case.
For cases involving expert evidence, they are often lengthy and expensive when both parties have the resources to appoint their own expert for numerous technical or specialist issues. Having an SJE minimises opposing views between experts. Hence, it will streamline the process and shorten the length of trial, reducing the legal costs involved.
Empirically, experts instructed by a single party would tend to align with the interests of the party instructing them; many litigants would look around until they find an expert witness whose evidence suits their case. This would often result in a polarised conflicting views on technical issues, which require the court to spend even more time to resolve. Having an SJE, instead of different experts for the opposing parties, can reduce partiality and better assist the court in narrowing down the issues. It also facilitates an earlier settlement between parties.
However, in some cases, appointing an SJE may not be the most suitable option for litigants. For example, when the technical issues involved are highly contentious, there may be a genuine room for varied opinions among skilled professionals, and it may call for the appointment of more than one single expert to allow discussion on these specialised issues. The necessity and appropriateness of appointing SJE should depend on whether the practice can better serve the interests of justice.
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