Post the Lord Justice Jackson and his reforms, single joint experts are ever more the vogue. But they are not wholly unproblematic not least because they are almost never called to give live evidence. For this reason, they will inevitably be advising, to some extent on assumed facts. For this reason the drafting of the instructions is crucial. The expert will need to be asked to consider the issues on the different factual bases which the Tribunal may eventually find. It may also be necessary to send the expert any key documents which establish matters which the expert may otherwise tend to doubt.
If the first draft of the report is not as expected, then the Case Management Order will normally allow parties to put written questions. These can be crucial in determining the scope of the expert’s final view. In effect, they are a form of written cross examination and in a complex case be very numerous.
Ultimately if all these fail, it may be necessary to make an application too, precisely because the experts view may be influenced by what is said in witness statements it may be necessary to make an application to call the expert.