Zvonko Bulic v Harwoods & Ors

Dis-Instructing a Single Joint Expert in favour of a Sole Expert

[2012] EWHC 3657 (QB) TEDR Volume: 17 Issue: 3

The Facts

The Claimant brought a claim for damages against the defendants for a serious, mechanical engine failure in his car. The critical issue between the parties was the cause of the engine failure. The Claimant asserted against the garage (the 1st Defendant) that the fault lay with poor servicing; and against the manufacturer (the 2nd Defendant) that there was a design fault in the engine. The Defendants contended that the engine had failed because it had been over-filled with oil.

A single joint expert was instructed to report to the Court on the cause of the engine failure. The Claimant concluded that the report of the Single Joint Expert (“the SJE”) was flawed, that the SJE lacked sufficient expertise, and that she was biased. The Claimant therefore applied for permission to call his own expert witness, and for the single joint expert to be dis-instructed. The Claimant produced a report which doubted the SJE’s technical expertise and reasoning in support of the application. The judge at first instance rejected the application.

The Claimant appealed to Eady J. The appeal was advanced on four separate grounds.

The first was that the judge had applied the wrong test as to whether a party would be allowed to call his own expert, despite a prior order for an SJE. Eady J examined the cases, starting with Lord Woolf MR’s judgment in Daniels v Walker [2000] 1 WLR 1382, and held that the authorities showed that requirement was simply for the applicant to show a “good reason” for instructing his own expert. That would depend on the facts of each case. Since the judge at first instance had misunderstood those authorities as imposing a higher requirement, and refused the application on the basis that permission would only be granted in an “exceptional case”, that afforded a good reason to allow the appeal.

Eady J also had regard to Lord Woolf MR’s judgment in Peet v Mid-Kent Healthcare Trust (Practice Note) [2002] 1WLR 2010, in which the CA had held that permission to a party to call its own expert would be more readily granted if the issue dealt with by the SJE was central to the case. That was the position here, and the judge had not given sufficient weight to that factor.

Eady J rejected the second ground (bias). The SJE was experienced and acted for both claimants and defendants. The fact that she had been instructed by the defendant previously was not a ground for alleging bias.

The third ground was that the judge at first instance had erred in rejecting the criticisms of the SJE made by the Claimant’s proposed new expert. Eady J noted that the judge had dealt with these in detail, but that on balance they should be a matter for the trial judge after hearing both experts cross-examined. In doing so, Eady J applied what in Kay v West Midlands HA (unrep.), HHJ MacDuff QC had called the “balance of grievance” test, and decided that the importance of the claimant being able to advance a case on the basis of expert advice he considered acceptable was greater than the inconvenience to the defendants having to deal with another expert.

The last ground was that the judge at first instance, applying comments made in Dennis v Walker, had decided that it would be inappropriate to permit the claimant to call a further expert because the case was not “substantial” in value. Eady J rejected this approach, holding that Lord Woolf MR’s comments in Dennis v Walker were not intended to lay down a mandatory set of principles, and that “substantial” would not always mean “substantial in value.”

In the circumstances, the appeal was allowed, and the claimant was permitted to call his own expert.


This case provides a very useful review of the authorities as to when a party will be permitted to call his own expert, an order for an SJE notwithstanding. The overall emphasis is that such permission is to be granted if it is fair and just in all the circumstances, which is surely the right test (even if it does not provide much guidance for future cases). Eady J appears to have paid particular attention to the fact that the proposed expert to be called by the claimant was able to give a report setting out a detailed critique of the SJE’s approach. Even though Eady J considered that the proposed expert’s approach might be criticised as “academic” the availability of such a critique appears to have weighed significantly in the balance. That, at least, is useful practical guidance as to how an expert can persuade the court that he should be allowed to provide a report on behalf of a party wishing to call him.

The criticisms based on apparent bias on the part of the SJE (or rather lack of such bias) are also interesting. Eady J had no difficulty dismissing this ground of appeal, and indeed did so in rather summary terms. That is consistent with the robust approach that the courts usually take to allegations of bias, and the very high burden of proof that such applications normally bear. The facts here (which appear to have been simply that the expert had been instructed by the defendants in the past) were not nearly enough to establish bias.

The B submitted that the judge erred in applying the wrong test when deciding whether the single joint expert should be disinstructed;

(2) dismissing S’s concerns regarding the technical inadequacy of the single joint expert’s report and his alleged lack of expertise;

(3) assessing the instant litigation as not being sufficiently “substantial” to justify dispensing with a single joint expert.


(1) In contrast to Kay v West Midlands Strategic Health Authority, the expert evidence in the instant case went to an issue which was far from peripheral, namely the cause of the engine failure. It was fundamental to the resolution of the dispute between the parties and was technical. The judge allowed himself to become too focused on the “exceptionality” test attributed to the judge in Kay, namely whether or not the circumstances were so exceptional as to justify departing from the normal course of appointing a single joint expert, without making sufficient allowance for the fact that, unlike in Kay, the issue in question was not peripheral (see paras 18, 20 of judgment).

(2) S’s concerns about the single joint expert’s expertise might be proved wrong on closer examination, but B’s sense of grievance would be understandable if he had to go through a trial of the critical issue on liability while still being barred from having the relevant points properly investigated (paras 24, 27).

(3) It was impossible to provide a bright line boundary between cases that were “substantial” and those which were not. In any event, whether or not litigation was substantial could not be determined solely by reference to the amount claimed. Issues raised in litigation might be important to the parties or the public generally for a variety of reasons other than financial considerations. The judge thought it appropriate to decide whether it was a “substantial” case, and having decided that it was not, he treated it as a significant factor in refusing B’s application. Although it was a relevant factor, it should not have assumed such importance (paras 28-29).

(4) The judge should have allowed S’s evidence because it was technical and not peripheral. That was what the overriding objective required, whether the judge assessed the value of B’s claim as substantial or not (para.29).

Peter Annison v Paul Nolan

SJE acting beyond Instructions

[2012] EWCA Civ 54 TEDR Volume: 17 Issue: 2

The Facts

The Appellant appealed against a damages assessment made in a personal injury claim against the Respondent.

In respect of serious injuries sustained by the Appellant arising from a road traffic accident the Claimant had admitted liability. That left the matter of damages to be determined.

At the assessment of damages hearing, the Claimant’s Special Damages schedule had two heads of future loss namely (a) do-it-yourself and gardening costs calculated at somewhat over £24,000, and (b) utility, maintenance and repair costs calculated at somewhat over £55,000.

A single joint expert was instructed as an architect to report on certain adaptations to a residence. However, the expert reported on differences between the parties other than in relation to adaptations and the expert report considered wide ranging matters which included maintenance and repair costs, that were outwith the expert’s specific terms of reference under his engagement.

The judge ordered £750 for future utility costs but made no mention of maintenance and repairs. An order of somewhat over £5,000 was made as to DIY and gardening costs.

The Issues

In this case the Court of Appeal had to consider the question of a single joint expert acting outside the scope of his engagement and his or her understanding of the role of a single joint expert. It also had to consider the factors to be taken into account by a trial judge when faced with unsatisfactory expert evidence.

The Decision

A serious procedural irregularity had occurred at the trial which the Court of Appeal considered made the trial judge’s decision unjust in respect of the home maintenance and repair costs. The expert he had been asked to deal with when appointed and instructed. The Court took the view that the expert had misunderstood both the scope of his engagement and his position as a single joint expert.

The trial judge had made no ruling on the admissibility or relevance of the expert report and made no reference to it in her judgement. Further to that, the trial judge had failed to deal with the report adequately – she neither excluded it as being inadmissible or irrelevant nor did she allow it to be admitted into evidence and thence to consider its content and give reasons for not making an order for the amounts put forward in the report. Accordingly the evidential position was so unsatisfactory and unclear that the Court of Appeal decided to remit the claim for maintenance and repairs to be heard and decided at a re-trial.


Here the Court of Appeal found that the single joint expert had stepped outside his remit and was dealing with things that he was not engaged to deal with. The trial judge was then faced with an evidential “mess” but unfortunately failed to deal with it and seemingly chose simply to ignore it in her determination of the case, which was also not appropriate. Plainly this case shows the importance of an single joint expert (and indeed this applies to any expert) understanding the nature and extent of his or her instructions and the terms of his or her engagement and then ensuring that the expert report does not extend beyond the scope of what the expert has been instructed to address. If the expert considers that his instructions are unduly constrained he could seek an amendment to those instructions or an explanation of the constraint (and ultimately the expert could include a caveat in the report dealing with the extent of his instructions and its potential consequences).

Saunder v Birmingham City Council

SJE – tests for allowing additional Experts

[2008] UKEAT 0591_07_2105 TEDR Volume 13 Issue 3

The Facts

Mr Saunder brought a claim against his employers, Birmingham City Council alleging 48 individual complaints of unlawful racial discrimination. Three of those complaints were upheld by the Employment Tribunal and Birmingham City Council was found liable for those acts of discrimination.

Following such a finding, directions were given for a remedy hearing.

Mr Saunder maintained that he had suffered psychiatric illness as a result of the bullying and racial discrimination he had suffered and thus an Order was made that the parties should agree upon a joint psychiatrist to report to the Tribunal on the issue of causation of any injuries. In default of agreement, the parties were to return to the Judge who would decide who should be appointed.

The parties could not agree and thus the Judge selected a Professor Freeman.

Professor Freeman prepared a report. It was unhelpful to Mr Saunder.

In response, Mr Saunder obtained reports of his own (from Dr Deuchar and Dr Khalil) which commented upon the report of Professor Freeman. An application was made by Mr Saunder to the Employment Tribunal:

a. To exclude the evidence of Professor Freeman on the basis that he had exhibited bias to Mr Saunder himself and against the contention that race discrimination may cause or contribute to mental illness; and

b. For permission to adduce the reports of Dr Deuchar and Dr Khalil.

The Judge ruled that Professor Freeman could give evidence and rejected the application for permission to adduce evidence from Dr Deuchar or Dr Khalil. He concluded that any criticisms of bias or bigotry could be advanced by way of cross-examination of Professor Freeman at the remedy hearing.

Mr Saunder appealed.

The Issues

This summary is limited to how an allegation of bias against an Expert to be dealt with by the Courts.

The Decision

The relevant authorities were reviewed.

The classic statement as to the duties of an Expert is to be found in The Ikarian Reefer [1993] 2 Lloyds Rep 68, 81-82. Those duties were summarised as to oblige the Expert to provide “an objective, unbiased opinion on matters within his expertise”. It was said that “if he fails to fulfil that obligation the Tribunal will no doubt take that into account in assessing his evidence and whether or not it should be accepted”.

In Armchair Passenger Transport Limited v Helical Bar PLC [2003] EWHC 367, the test of apparent bias was considered to be irrelevant to the question of whether or not an expert witness should be permitted to give evidence.

Accordingly, the decision to allow Professor Freeman to give evidence, and the reasons for the decision (namely matters could be pursued by way of cross-examination) was upheld

Mr Saunder was, however, granted permission to call one of the two alternative Experts upon whom he wished to rely, particularly as the Court recognised that cross-examination is only truly effective when there is evidence to support it and this is particularly so where the allegation is that the expert has failed to comply with his duty to give an objective, unbiased opinion within his expertise.


Once again, it is made clear that the duty of the expert to be objective, unbiased and comment only upon matters within his expertise. That is of crucial importance.

Any alleged failure to comply with this duty does not de-bar the evidence from being received but can (and doubtless will) be dealt with by cross-examination.

Accordingly, any failure to comply is likely to lead to an uncomfortable time in the witness box!

Model Terms of Engagement – SJE

Model terms of engagement for an expert witness engaged as a single joint expert

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