Writing the Joint Statement: Maintaining Independence

Related Sector: Expert Witness

What happens if an expert’s draft joint statement is influenced by another party, such as a member of the legal team?

Bond Solon trainer and subject matter expert, Nick Deal explores the recent case of Pickett v Balkind [2022] EWHC 2226 (TCC) where an expert witness opened himself up to cross examination at trial, after it emerged in a pre-trial application that he had sent a draft of the joint statement to counsel and had received comments back for consideration and inclusion in the final version.

Background

Pickett v Balkind [2022] EWHC 2226(TCC) is a first instance decision in the Technology and Construction Court (“TCC”), of HHJ Paul Matthews.

This is a tree subsidence claim, involving expert witnesses in a number of fields, including structural engineering and arboriculture. One of the claimant’s experts anticipated being unable to attend trial because of a surgical appointment and subsequent recovery period.

The claimant’s solicitors sent the defendant’s solicitors a draft application to request a different date. In support of the application was a letter from the expert witness, which set out the need for surgery but also included the following:

“I have been through Daniel's comments on the Joint Statement and have made just a couple of minor changes where I was unable to be as definite as his wording.

Attached is a word doc for your/Daniel's comment.”

“Daniel”, as the judge drily pointed out, was counsel instructed by the claimant.

Breach

The defendant’s solicitors sought to raise their concern that the claimant’s barrister had improperly been involved in the formation of the joint statement.

The arguments about disclosure and privilege need not concern us here; the key point is the involvement of the claimant’s lawyers in the joint statement.

On that point, the judge referred to CPR35 and to the additional comment given in the TCC Guide (at paragraph 13.6.3 of the Guide):

“Whilst the parties' legal advisors may assist in identifying issues which the statement should address, those legal advisors must not be involved in either negotiating or drafting the experts' joint statement. Legal advisors should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement."

Given the clear evidence that there had been comments from counsel on the joint statement, the judge held that it was entirely appropriate for the expert witness to be cross examined at trial on those comments.  It was appropriate to challenge the expert on the nature of these comments as well as whether or not he had incorporated them.

In reaching his decision, HHJ Matthews referred to the case of BDW Trading v Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC), where, at paragraph 18, the judge in that case described it as a “serious transgression” for an expert witness to provide the instructing lawyers with a draft of the joint statement for their comments.

Summary

The current case is not making a new point; rather, it is the latest in a growing list of authorities, all saying the same thing: the joint statement must be drafted, agreed, and signed by the experts in the discussion and by nobody else. Only once it is in its final form can it be sent to the instructing solicitors.

Given that CPR 35 is so clear on this point, why does it keep being breached?

It is impossible to state why some lawyers are making comments on the joint statement when it is a clear breach of the rules for them to do so.  

Expert witnesses who find themselves complicit in such a breach risk their reputation and credibility, as they may find themselves criticised, by name, in the judgment.

The only way for you, as an expert witness, to be confident that you will avoid the same fate as the expert in this case is to ensure that you know and understand your duties and obligations, without having to rely on the lawyers informing you.

An expert witness who has a thorough knowledge and understanding of their duties under CPR35 (CrimPR19 for those in the criminal justice system and FPR25 for those in the Family Court) will be able to identify when they are being asked to do something which breaches the rules of court.

To help expert witnesses carry out their work in compliance with the rules, Bond Solon offers a variety of courses, such as Discussions Between Experts, Excellent in Report Writing and Law & Procedure (civil, criminal, and family law options). Please visit here to view our full suite of courses.     

Author: Nicholas Deal

This article was first published on 22/09/2022