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In the Access to Justice report, Lord Woolf bemoaned the fact that "the power under Order 40 has been rarely used in the past" and recommended that more use be made of court appointed experts.
Although the provision of court appointed experts is still rare, two recent appointments have come about as a direct result of an initiative by the Official Referees Court.
Judge Hicks made the first of the appointments in February 1995 in the case of Abbey National Mortgages & ors v Key Surveyors Nationwide & ors (1995). The case involved a dispute over the valuation of 29 houses in the UK in which the defendants sought leave to call 29 experts.
The appointment made by Judge Hicks was done so on the application of the plaintiff and was appealed by the defendants. The appointment was upheld by the Court of Appeal this February.
The second appointment was made in June 1995 in a current construction case. In this action the efficacy of a proposed remedial scheme was an important and apparently discrete issue in the proceedings and was ideally suited for appraisal by an independent expert.
Order 40 does not permit an appointment to be made by the court of its own volition and no application had been made. However, at the suggestion of the presiding judge, Judge Newman, one of the parties made the application on the spot and eventually all the parties consented to the appointment.
Court cases can become bogged down by the number of experts called. For example, in one recent case involving 10 parties, leave was given to call 10 expert witnesses per party.
In Access to Justice, Woolf reported that apart from discovery, the subject of expert witnesses was the one which caused the most concern because of the high cost, delay and increased complexity generated by their excessive or inappropriate use. The increased use of court appointed experts, he suggested, may be one way to cut down the need for partisan expert evidence.
That is undoubtedly true in many cases. Judicious use of a court appointed expert will not obviate the need for the parties to engage their own experts but it should considerably reduce the numbers required and narrow the scope of disagreements.
An order appointing a court expert should also demand that the parties' experts meet once the report of the court appointed expert has been served so a written statement of agreements can be made. Meetings which focus on an independent report often help the experts to come to an agreement more rapidly.
However, court appointed experts may find that the parties involved in the case are resistant to dropping the usual 'security blanket' provided by hiring large numbers of experts to advise and give evidence on every conceivable technical detail in the action.
A further barrier to the system may be the dearth of guidance offered by Order 40 but the lack of experience of how the appointment of the court expert should work in practice.
When Judge Newman made the appointment of an expert in the construction case, he went to great lengths to set out what he required. In his order, he defined the questions the court appointed expert should answer, the date when the report should be served and the terms of payment. The parties were then required to agree the detailed terms of the appointment and the identity of the expert.
Further terms of the appointment were agreed and set out in a schedule. This provided that the court appointed expert would receive representations from the parties' experts before serving his report and would ensure that any documentation made available by the parties would be copied to all the other parties.
The court appointed expert was prohibited from taking legal advice and a ceiling was placed on the amount he could spend producing his report. The person was chosen by a voting system which awarded points to each of the seven candidates, with each party being allowed one veto.
The philosophy behind the use of the court appointed expert as a means of saving cost and time is undoubtedly sound. An early and independent report on a fundamental technical issue increases the prospects of a swift settlement and should shorten hearing times.
Critics may have lingering doubts over the system but the ultimate success of a court appointed expert will depend on a careful assessment of the suitability of the appointment and a detailed definition of the expert's brief.