Abandoning the single joint expert
The primary rationale for appointing a single joint expert is to save costs. The very basic premise is that appointing one expert jointly ought ultimately to be less expensive than the parties appointing one expert each.
Accordingly, in the Cayman Islands, the Financial Services Division Guide actively encourages litigants to consider using single joint experts in an appropriate case. Appropriate cases are typically those in which there is a technical or scientific issue which can be resolved fully, quickly and comparatively cheaply by an independent expert instructed jointly. Factors such as the amount in dispute, the importance and complexity of the issue and the likelihood of there being a wide range of expert opinion in relation to it, are all likely to be relevant (to a greater or lesser degree as the circumstances dictate) to the issue of whether a single joint expert ought to be appointed.
It is important to bear in mind, however, that even if the parties do agree to instruct a single expert jointly (or the Court, of its own volition, so orders), that does not necessarily debar a party from subsequently abandoning that expert and/or applying to adduce further evidence from their own expert.
The English High Court has recently revisited this point within the context of proceedings involving a single expert report regarding acoustic engineering (Hinson v Hare). The principles that the court will take into account when exercising its discretion to allow additional expert evidence to be adduced, which are largely derived from the English Court of Appeal’s decision in Daniels v Walker, are as follows:
- A party agreeing sensibly to a joint report is not prevented from relying on the evidence of another expert, although to do so does represent a departure from the norm.
- In a substantial case, the correct approach is to regard the instruction of a joint expert as the first step in obtaining expert evidence on a particular issue. Hopefully, in the majority of cases, that first step will also be the last step.
- If a party, for reasons which are not fanciful, wishes to obtain further evidence, they should be permitted to do so, subject to the broad discretion of the court.
- The Court may be less likely to allow further evidence if the amounts at stake are modest. The proportionality of obtaining further evidence may well be scrutinised.
- All relevant circumstances are to be taken into account, but principally the court must have its eye on the overall justice to the parties. This includes balancing the grievances caused to the parties if an order is (or is not) made.
The Daniels line of authorities is likely to be highly persuasive, albeit not binding, in the Cayman Islands.
