A meeting of minds

“It is ordered that the experts of like discipline shall meet, and shall discuss matters relevant to their opinions in this matter, and shall produce a joint statement, setting out those matters on which they are agreed, and those matters on which they have failed to agree, with a summary of their reasons for disagreeing.”

A standard step in the proceedings? Yes, of course. Pure routine? Absolutely not. A meeting of experts can make or break a case, and can destroy months of lawyers’ work in an afternoon.

Eagle eyes

If you are sharp eyed (and which lawyer is not?) you will have noticed two things. First, I am talking about meetings of experts, whereas the rules talk about discussions between experts – it isn’t necessary for a face-to-face meeting to occur. Second, the typical order above requires there only to be reasons for failure to agree. The Criminal Procedure Rules talk about reasons for agreement as well as disagreement, which is an interesting idea. But we must be talking about the Civil Procedure Rules (CPR), so let us stay with CPR.

So, we have had exchange of witness statements, and then of expert reports, and a meeting has been ordered. What does the expert do then, poor thing? Three words: preparation, preparation, preparation. For the expert, this meeting is just as important as the trial. Why? Because the joint statement, setting out what has been agreed, and specifying why the experts have not agreed other issues, is intended to shorten the list of issues to be tried; if the experts are not in contention, what is the point of airing all the arguments again in open court?

Yet here we have a contradiction: although the experts might agree something, and although that may shorten the trial, “where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement” (CPR 35.12(5)).

Tricky, eh? The experts are ordered to set out in writing what they have agreed, yet the parties are not to be bound by it. Why? Because the experts can talk only within their own science (Foulks v Chard (1783)) and must not agree something which counsel may wish to argue. They are not there to ‘knock up a deal’. And this is where your truly experienced expert comes into his own, with a clear idea of what he may discuss and what must be left to counsel and the court. Examples:

• If two opposing accountant experts disagree on the Bolam test – what the reasonably competent accountant should have done in particular circumstances – they can put into their joint statement what they believe that normal accountant should have done, but they cannot agree, or even agree to differ, on whether the accountant fell short. That is for the judge.
• Or, if there is contention about the basis on which calculations are based, they can agree each other’s calculations ‘numbers as numbers’, but must not agree the amount of lost profit. In that circumstance, the furthest they could take it would be to agree a formula for calculating lost profit, which may be applied to the figures ultimately decided by the court.

Outline issues

But, back to preparation. An agenda should be agreed in advance. I have a pro forma agenda which I send to the other expert beforehand and agree as an outline. The court may specify the issues it wishes the experts to discuss (CPR 35.12(2)) and instructing solicitors may do likewise if they wish, but often this never happens: expert reports have been exchanged, the areas of disagreement have become clear, and those areas go straight into the agenda.

The pro forma also includes such basics as where and when we are to meet, who is to attend (lawyers? No, thank you), and who is to take the minutes.

The experts should also consider the medium they will use for discussion: teleconference? Emails? Skype? The old telephone? I usually prefer face to face – I can assess my opponent, and personalities will come into the discussion. Also, it is easy to recalculate something on screen there and then, and get a transcript – but costs of course must always be proportionate.

One standard item in my agenda is to confirm which reports each expert has written. I have known meetings where one or the other discovers that there are more expert reports than they knew about. More often, and again a standard item, is to agree that each expert has seen the same documents.

Even though each expert report ought to list all the documents on which that expert’s opinion relies, it is surprising how often the first half hour of an expert meeting has to be spent in photocopying documents which one expert has not seen.

The experts should agree to settle each issue one by one, sticking to the agenda, and not talking about everything at once and agreeing nothing – it happens. SJ

Chris Makin is an independent forensic accountant, mediator and expert determiner