August 2016

Joint statements of experts are not mandatory unless ordered by the Court. Paragraph 9.1 of Practice Direction 35, which supplements Part 35 of the Civil Procedure Rules, notes that “parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so when.”  This newsletter highlights the purpose underlying joint statements and our experience of the preparation of such statements.

Basis of Preparation

Paragraph 9.2 of Practice Direction 35 notes that the purpose of discussions between experts is not for the experts to settle cases but to agree and narrow issues and in particular to identify:

  1. the extent of the agreement between them;
  2. the points and short reasons for any disagreement;
  3. action, if any, which may be taken to resolve any outstanding points of disagreement; and
  4. any further material issues not raised and the extent to which these issues are agreed.

Paragraph 73 of guidance issued by the Civil Justice Council on the instruction of experts in civil claims notes that:

“Where there is sequential exchange of expert reports, with the defendant’s expert’s report prepared in accordance with the guidance at paragraph 63 above, the joint statement should focus upon the areas of disagreement, save for the need for the claimant’s expert to consider and respond to material, information and commentary included within the defendant’s expert’s report.”

A joint statement may therefore include the claimant’s expert’s comments on the defendant’s expert’s report and the defendant’s expert’s response to such comments.

Our Experience

If the experts have been working from the same basic information, there will be common ground between them and they should be able to agree matters of fact without difficulty. We have been able to agree with our “opposite numbers” matters such as:

  • issues affecting quantum which are matters of fact and law and for the Court to decide;
  • the mathematical accuracy of calculations;
  • the methodology for computing loss;
  • issues relating to the relevance and reliability of financial information; and
  • specific detailed assumptions underpinning the claim.

Our experience of discussions between accountants in personal injury and loss of profits cases is that expert accountants’ opinions on the quantum of lost earnings or profits are generally based on different assumptions about the likely course of the claimant’s business or (if an employee) his or her career. Unless new facts come to light, it is unlikely therefore that the experts will change the opinions set out in their reports or the assumptions on which the opinions are based.

In many cases on which we have been involved, we have “agreed to disagree” with our opposite numbers in relation to the assumptions made. For this reason, we and opposing experts have not normally suggested action to resolve any outstanding points of disagreement as suggested in Practice Direction 35 other than by way of supplementary experts’ reports covering specific issues.

In relation to the sequential disclosure of experts’ reports, we were involved in a recent case in which the joint statement consisted largely of comments from the claimant’s expert on our report and our responses to those comments, the statement running to 23 pages with 16 pages of appendices. Although there have been a few similar cases, such cases are exceptional. Many of the experts with whom we hold discussions are conscious of the need to produce a concise and cost-effective document and see no point in reiterating the points already made in the experts’ reports.

Conclusions

Joint statements which emerge from discussions between expert accountants may be unlikely to add significant value to a case but may nevertheless be a convenient method of codifying basic facts and “ground rules” and summarising the differences between the experts.

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The information contained in our Newsletters is provided as general information only. It does not constitute professional advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. In addition, since the Newsletters were published in recent years, the information contained in them may not be applicable at the current time.