Robin Bryant ( www.bankexpert.net) has provided expert banking evidence in some 400 claims, attended many experts’ meetings and signed up to the consequential joint statements. His background is as a lending banker to both the corporate and personal sectors. He has worked in large banks as well as smaller investment banks at director level. Robin has given evidence overseas as well as in the UK and has been cross examined 18 times.
The Experts’ Joint Statement
Section 9 of Practice Direction 35 requires experts in civil cases to... “agree and narrow issues and in particular to identify: (i) the extent of the agreement between them; (ii) the points of and short reasons for any disagreement...”
Only a judge could say how much he or she is influenced by the joint statement written by the experts to identify what they are agreed and what they are not agreed upon and why, with references to their expert reports.
Personally, I believe that experts’ meetings are worthwhile exercises. They should save valuable time in Court but more particularly, they ought to help in the settlement negotiations, which is the more usual way in which claims are resolved.
Most of the expert meetings that I have attended have been good hearted and held in a spirit of apparent co- operation. I have only occasionally seen experts change their views from those expressed in their written reports and one might question the worth of the joint meeting if it merely serves to repeat the views already expressed. However, instructing solicitors might be somewhat horrified to see any reversal of an expert’s hitherto stated position.
As to the preparation needed for a meeting, the experts should agree the topics for discussion beforehand, each focusing on the points that need to be brought out. Naturally, the inclination is for each to concentrate on the features and arguments that favour their side, subject to the expert’s duties to the Court. Agreeing an agenda saves time at the meeting as well as keeping instructing solicitors aware of what is to be discussed. It may also highlight situations where opposing experts find they are working to materially different sets of instructions.
This brings us to the question of the solicitors’ involvement in the meetings and then the joint statement. It is my experience that solicitors do not attempt to attend the meetings. However, most solicitors expect to be involved in the wording of the joint statement. It is up to the expert to agree or not to any suggested amendments/additions.
As regards the conduct of the meetings, I believe in drafting the joint statement during the meeting on a ‘without prejudice’ basis, topic by topic and think this must be the preferred method to catch the nuances of the discussion. It might then be ‘adjusted’ after reflection and further discussions between the experts. The alternative of writing the joint statement after the meeting is less satisfactory; it may make for shorter meetings, but I do not believe that it is particularly desirable.
My major concern is that the value of the experts’ joint statement can be eroded when one side or the other attempts to import blocks of text from their export report, or – even worse – sections of the pleadings. If this happens, it risks obscuring the whole purpose of the exercise – to highlight for the judge the main points where the experts agree or not – and may also distract attention from content of the experts’ individual reports, on which they will have spent considerable time and effort.