Managing Expert Discussions Under CPR 35.12

Effective management of expert discussions under CPR 35.12 is a potential tool for the resolution of paediatric litigation. By requiring experts of the same discipline to meet and identify points of agreement and disagreement, the court aims to isolate the specific medical issues in dispute. This process allows legal representatives to focus trial preparation on evidence that remains contested, ensuring that expert evidence remains confined to matters reasonably required for the court’s determination.

The Purpose of the Joint Statement

Under CPR 35.12, the court may direct experts to discuss their opinions to narrow the issues. While this practice is common in civil clinical negligence and personal injury cases, it must be distinguished from the appointment of a Single Joint Expert (SJE) under CPR 35.7. A joint discussion involves two or more separately instructed experts who have already produced independent reports. Their primary duty remains to the court, as set out in CPR 35.3, notwithstanding their individual instructions. By contrast, an SJE is appointed to provide one report for all parties; where instructions are provided to an SJE, these are governed by CPR 35.8.

When experts engage in the process of formal discussions for a joint statement, they are tasked with producing a document that clarifies precisely where their professional opinions align and diverge. This document serves as a roadmap for the court, preventing the tribunal from having to decipher complex paediatric or neurodevelopmental arguments in isolation.

Preparing for the Discussion

The success of the discussion process depends on the clarity of the initial instruction. Before an expert enters into discussions, the solicitor should ensure that the experts have been provided with a complete and identical set of medical records. If one expert has seen a document that the other has not, the resulting disagreement may be based on an evidential gap rather than a genuine difference in clinical interpretation.

Instructions should encourage the experts to adopt a constructive, objective approach. Solicitors should avoid any attempt to dictate the content of the final statement. The expert’s role is to apply their clinical expertise to the established facts of the case, identifying alternative explanations for an adverse outcome or a specific injury where appropriate, rather than defending a party’s case. It is vital that experts recognise the distinction between their clinical findings and the court’s role in deciding liability or causation.

Identifying Points of Agreement and Disagreement

A well-structured joint statement typically addresses specific, numbered questions formulated by the parties. Experts should be encouraged to:

• Clearly define the clinical basis for each point of agreement.
• Explain the reasoning behind areas of disagreement, specifically whether these arise from different interpretations of the facts, the application of different clinical evidence, or a divergence in professional experience.
• State whether a previously held position has been modified in light of the discussions, ensuring this change is documented transparently.
• Address the specific limitations of their evidence, such as when clinical findings are compatible with, but do not provide definitive proof of, a specific condition.

Where experts are asked to consider fracture dating or the timing of a neurological insult, the statement should acknowledge the margins of uncertainty inherent in paediatric imaging and clinical presentation. Attempts to impose false precision on these temporal estimates often undermine the utility of the expert evidence.

Managing Procedural and Evidential Limitations

In cases involving complex paediatric presentations, such as developmental delays or suspected non-accidental injuries, it is common for experts to express a degree of professional uncertainty. The joint statement should accurately reflect this. If an expert feels that a matter cannot be resolved without further evidence, they are entitled to ask the court for directions under CPR 35.14. This is preferable to an expert speculating beyond their remit.

When instructing experts in civil proceedings, counsel should bear in mind that the civil procedure rules governing these discussions differ significantly from those in family, criminal, or inquest proceedings. For instance, in criminal matters, expert duties and the exchange of evidence are governed by the Criminal Procedure Rules (CrimPR) Part 19. If the case falls outside the jurisdiction of the civil courts, the expert should be reminded of the specific procedural requirements of that venue to ensure the statement remains admissible.

Avoiding Common Pitfalls

An expert discussion is an exercise in professional consensus-building, not an opportunity for further adversarial debate. If the experts find themselves in a deadlock that cannot be resolved through discussion, the joint statement should succinctly state the divergence without attempting to force a compromise. An honest statement of difference is often more useful to the court than a forced agreement that masks a genuine clinical disparity.

When drafting questions for the joint statement, focus on the ‘but-for’ analysis in clinical negligence: specifically, would the adverse outcome have been avoided ‘but for’ the alleged breach of duty? In personal injury matters, concentrate the questions on the objective clinical signs and the causal relationship to the injury event. Avoid overly broad or leading questions that might be interpreted as an attempt to steer the expert’s clinical judgement.