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Smith v Stephens, Birmingham District Registry

8 November 2001
The issues

Joint Experts – Privilege – Impartiality – Whether one party should meet the Joint Expert.

The facts

Claimant wanted to have a consultation in the Defendants absence with joint instructed Experts. The liability settlement had already been approved by the Court. Quantum remained in dispute. There were seven Expert Witnesses all jointly instructed. A conference was sought by Counsel with himself, his solicitor and the Joint Experts and the Claimant present. The Defendant objected.

The decision

1. The single joint Experts had failed to comply with Paragraph 19.8 of the Code of Guidance for Expert Witnesses. They had not informed the Defendant of the consultation or sought his consent. For one side to have such a consultation with the other absent was contrary to the over-riding objective.

2. It was clearly inconsistent with a Court direction for Joint Experts for one side secretly to ascertain the strength of that evidence in a private consultation.

3. The appropriate way forward would have been by way of questions. Defendant’s application to prevent the meeting proceeding allowed.

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