The Civil Procedure Rules (CPR) brought a sea-change in the use of experts. No longer would both sides in litigation be able to wheel out their own battalion of rival experts. The CPR, we were told, heralded ‘the end of trial by experts’. But the recent Court of Appeal decision in Daniels v Walker [2000] 1 WLR 1382, appears to significantly breach the general resistance of the courts to allow both parties to instruct their own experts. Different courts take conflicting views on experts. Personal injury matters may lend themselves to single joint experts. The pre-action protocol encourages the nomination and agreement of experts with a view to them being jointly instructed if possible. However, the Commercial Court Guide makes no such presumption, recognising that separate experts are sometimes necessary and even desirable. Lord Woolf in the Chancery Guide supports the use of a single expert where conditions favour it. Daniels v Walker [2000] 1 WLR 1382 cautions against the use of human rights legislation arguments – particularly under Article 6 (1) – to further an argument that could easily be considered within the framework of the CPR. The decision considered the proposed instruction of a further expert, in addition to a joint expert, and laid down a number of criteria:
lHas there been a jointly instructed expert? There may be a distinction between a joint report and an expert nominated by one side, to whom the other side does not object.
lWhat is the value of the case – is it ‘substantial’, or at least not ‘modest’?
lAre the reasons for wanting a further report ‘fanciful’? This is a broad test. It does not appear to take much to lift reasons from ‘fanciful’ to ‘real’. The reasons do not apparently need to be substantial.
lHas the joint expert been asked to address the live issue via questions? The implied query appears to be, if not, why not?
