Instructing a Single Joint Expert in Paediatric Civil Litigation

The appointment of a single joint expert (SJE) under CPR 35.7 provides a procedural framework intended to encourage cost-effectiveness and focus the court’s attention on specific clinical issues. When the court orders that expert evidence be provided by an SJE, the process of instructing that individual is governed by CPR 35.8. The success of this engagement depends significantly on the clarity of the instructions provided by the parties and the management of the medical documentation shared with the expert.

Defining the Scope and Clinical Focus

Parties must identify precisely which aspects of a paediatric case require independent oversight. In matters of potential neonatal injury or complex birth trauma, the scope should clearly distinguish between child-side clinical findings—such as neurodevelopmental assessment and imaging—and obstetric or midwifery practices, which usually fall within a separate sphere of expertise. Instructing solicitors should avoid overly broad requests that fail to define the boundaries of the expert’s clinical assessment. When drafting the letter of instruction, it is necessary to identify the core clinical questions while ensuring the expert remains focused on providing an opinion rather than determining legal conclusions, which remain a matter for the court.

Documentation and Chronological Management

An expert requires a structured, comprehensive bundle to provide a reliable opinion. Incomplete medical records or missing neonatal data can significantly limit the value of the final report. For an SJE, it is critical that both parties agree on the factual chronology presented. Where discrepancies exist in how history is recorded across various medical documents, these should be explicitly highlighted in the instructions. If the instructions require the expert to evaluate the clinical sequence of events leading to a birth injury, solicitors must ensure that the expert has access to all pertinent labour and delivery records, including cardiotocograph traces and blood gas analysis, to facilitate a thorough review of the medical evidence.

The Role of Independent Opinion

Under CPR 35.3, the expert’s overriding duty is to the court, not to the parties who instruct them. This duty of independence applies to an SJE regardless of the fact that the expert is jointly funded. A common misconception is that an SJE should effectively ‘average’ the positions of the parties. Instead, the expert’s role is to provide a neutral clinical assessment based on the available evidence. If the clinical picture is ambiguous or if multiple differential diagnoses remain plausible, the expert should articulate the limitations of their findings rather than attempting to provide a definitive conclusion where one is not medically supported by the available data.

Addressing Alternative Explanations

In cases involving complex aetiology, such as cerebral palsy or suspected non-accidental injury, the consideration of alternative explanations is essential for a robust report. Instructions should encourage the expert to engage with differential diagnoses that are medically recognised. An SJE report that fails to address plausible alternatives may lead to further questions under CPR 35.6, which can impact the efficiency of proceedings. Solicitors should frame instructions to invite the expert to identify where an injury or condition could be explained by either a traumatic or an endogenous (non-traumatic) mechanism, provided both are supported by current clinical findings and the specific evidence in the case.

Procedural Safeguards and Questions

The flexibility of the SJE process allows for a focused exchange of information, though this should not be used to re-argue the case or to pressure the expert to change their professional judgment. Under CPR 35.6, parties may put written questions to the expert for the purpose of clarification. To minimise the need for such questions, initial instructions should be precise and objective. It is the solicitor’s responsibility to ensure that questions focus on the underlying clinical evidence and the expert’s reasoning process, rather than the final litigation outcome.

Practical Considerations for Instruction

• Review the expert’s CV to ensure their sub-specialty, such as paediatric neurology or neonatology, aligns precisely with the clinical issues in dispute.
• Ensure any disputes regarding the factual history are either resolved by the court or clearly set out as alternative hypotheses for the expert to consider.
• Confirm the expert has been provided with a full set of diagnostic imaging, including raw data where necessary, rather than relying solely on secondary reports.
• Avoid conflating the roles of experts; ensure that the paediatric expert’s instructions are distinct from those provided to care experts or occupational therapists.
• Verify that all parties have had equal input into the instructions and that the expert has not been approached unilaterally before the SJE appointment is finalised.