Commentary

Experts, in particular medical experts, are likely to be familiar with experts’ discussions that take place after the exchange of reports. This case referred to a circumstance more commonly, or perhaps seldom otherwise, encountered in the Technology and Construction Court. 

Expert evidence issue

In this case reference was made to the usual practice in the Technology and Construction Court, of the experts being directed to meet on a without prejudice basis before the exchange of their reports. The purpose of that direction is that it encourages experts to express independent opinions without any concern that they are departing from what they have already committed to writing in their reports, and that their reports will then be limited to the matters which are still in dispute. Although that ought to encourage briefer reports, experts not uncommonly end up explaining what they have agreed and why. Sometimes that is genuinely necessary in order to enable the court to understand the effect of the agreements that they have reached, or to explain the areas of disagreement that remain. Sometimes it is, at best, unnecessary and, at worst, confusing. Which it is, is necessarily case specific.

Learning point

• In a TCC case, where the experts are directed to meet before the exchange of reports, it may be sufficient to report no more than the identified points of disagreement but it does depend on the nature of the case.