Disinstructing a single joint expert are you brave enough?
Obtaining permission to rely upon another expert following receipt of an unfavourable jointly instructed expert opinion is difficult, but not impossible as the recent decision of Bulic v Harwoods and others emphasises.
The leading case remains the Court of Appeal decision in Daniels v Walker in which the Court set out guidelines to obtaining permission to rely upon a second opinion. The Court made clear that the first step is to ask questions of the expert, but if the party remains dissatisfied, a second expert opinion should be obtained and then a prompt application made to the Court for permission to rely upon it. Cosgrove v Pattison  CPRLR 177 sets out factors the Court may take into account when deciding whether permission should be granted; in particular the nature of the issue between the parties, the level of damages in dispute, the effect in allowing one party to call further evidence and the delay in making the application.
Over the years there has been a restrictive interpretation of the guidelines in Daniels v Walker, particularly from Macduff J and this may have dissuaded parties from making applications. However, Eady J. in Bulic in allowing the appeal stated “… it can be distracting to focus too analytically on the reasoning in other cases, however authoritative, where the facts are not truly comparable. There are different factors to be taken into account and the importance of each is likely to vary according to the particular facts.”
Bulic v Harwoods was not a personal injury claim, but a dispute about damage to the engine of the Appellants’ Jaguar vehicle. The Appellant alleged it was caused by inadequate servicing and an inherent defect in the vehicle. The Defendants argued it was due to an unknown third part over filling the engine oil. Mr Bulic did not like the opinion of the single jointly instructed expert and sought permission to rely upon his own expert evidence. He was refused at first instance.
In allowing the appeal Eady J focused on the fact that the expert opinion was fundamental to the resolution of a central issue between the parties. He also highlighted that the evidence was of a technical nature and that the court was more likely to be assisted by the evidence of two experts on the issue. He made the point that the court would be less likely to dispense with single expert evidence when dealing with non technical issues.
Further, Eady J. went as far to say that it is not possible to say at what point a claim becomes ‘substantial’ (and therefore more likely that permission will be allowed) as referred to by Lord Woolf in Daniels v Walker. Eady J. made clear that what could be considered as substantial is not just by reference to the amount claimed but by what the parties considered to be important. He could not find any general principle which said that claims of less than a certain monetary value should not allow a party permission to rely upon his or her own expert evidence where they had lost confidence in the single jointly instructed expert especially where the evidence is technical in nature.
These cases do not often come before the Court either because the parties agree or a party is not prepared to risk the costs associated with obtaining the second opinion and making the application. However, where it is appropriate, parties should be brave and make applications. As Bulic demonstrates permission can and will be given. If appropriate applications are not made, the risk is that an increasing number of cases will be decided by the courts effectively rubber stamping the opinion of a single joint expert, without that evidence being tested at any level. As the Appellant’s counsel pointed out in Bulic, if the parties are not allowed to apply or the bar for granting permission is raised too high, this will act as a disincentive to parties agreeing to single joint instruction in the first instance.