When the Experts’ Meeting goes wrong By CHRIS MAKIN chartered accountant, accredited civil mediator and accredited expert determiner “It is ordered that the experts of like experience shall liaise, and shall produce a joint statement, setting out those matters on which they are agreed, and those matters on which they have failed to reach agreement, and their reasons for not so agreeing.”
[ THIS IS FAIRLY STANDARD WORDING in civil cases. In
criminal cases the experts are also ordered to set out the reasons for which they have reached agreement, which is interesting; but let’s stay with civil cases.
About Chris Makin
[CHRIS MAKIN was one of the first 30 or so chartered accountants
to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com/about-icaew/find-a-chartered-accountant/find-anaccredited-forensic-expert. He is also an accredited civil and commercial mediator and an accredited expert determiner. Over the last 30 years he has given expert evidence at least 100 times and worked on a vast range of cases. For CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! q
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www.yourexpertwitness.co.uk
So the experts have to get together and produce a joint statement, and that will form part of their report, so that the Expert’s Declaration and the Statement of Truth must be included or at least confirmed as still applying. How important is this joint statement? Very; I prepare for a joint discussion as carefully as for a High Court hearing. Who produces it? The experts, of course. What part do instructing solicitors play in this? Virtually none. I say virtually none, because they may participate in preparing an agenda of matters to be discussed, though in practice after hundreds of such meetings I have never been asked by my instructing solicitor to include anything. And that makes sense; the experts have produced their reports, they have reached and expressed their opinions in their separate reports, the differences are obvious, and they become the agenda. But what happens if one of the experts asks their instructing solicitor for help or comment on what is being discussed, or if the solicitor takes it upon themself to interfere? The answer is that the offending expert or solicitor will put the progress of their case at risk, and will waste a great deal in expert’s fees. This was the situation in the recent case of Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB). It was a group action by 159 residents living close to the defendant’s wood processing plant. It was alleged that the defendants were liable to the residents in nuisance through dust, noise and emissions. There was an expert on both sides, and they were ordered to produce their reports in April 2021 with a joint discussion to follow. But their joint statement didn’t follow, and after several months the defendant’s solicitors discovered that the claimants’ expert had been conferring frequently with his instructing solicitor. It started when the expert, unsolicited, sent a draft of the joint
