The Purpose of Joint Expert Discussions
The purpose of a joint expert discussion is to identify and narrow the issues in dispute between the experts. It is not a negotiation, and it is not an opportunity for one expert to persuade the other to change their opinion. The discussion is a professional exchange between two independent experts, each of whom owes their primary duty to the court.
Joint discussions are particularly valuable in cases where the expert evidence is central to the outcome. In a psychiatric case, for example, the prosecution and defence experts may agree on the diagnosis but disagree on its significance for the defendant's culpability. Identifying that agreement early saves court time and focuses the trial on the real issue.
The joint statement produced after the discussion is admissible in evidence. Where the experts agree on a matter, the court will generally accept that agreement without requiring the experts to give oral evidence on it. Where they disagree, the reasons for the disagreement set out in the joint statement will inform the cross-examination of each expert at trial.
Joint Discussions Under CPR Part 35
Under CPR Part 35.12, the court may at any stage direct a discussion between experts for the purpose of requiring the experts to identify and discuss the expert issues in the proceedings and, where possible, to reach an agreed opinion on those issues. The court may specify the issues which the experts must discuss.
The discussion is without prejudice. Under CPR Part 35.12(4), the content of the discussion cannot be referred to at trial unless the parties agree. The joint statement, however, is not without prejudice and must be filed with the court.
The joint statement must record: the issues discussed; the matters on which the experts agree; the matters on which they disagree; and the reasons for any disagreement. The statement must be signed by each expert.
- The court may direct a discussion at any stage of the proceedings
- The court may specify the issues to be discussed
- The discussion is without prejudice to the parties' positions
- Solicitors may not attend unless the court directs otherwise
- The joint statement must be filed with the court
- The joint statement is not binding on the parties
Joint Discussions in Criminal Proceedings
In criminal proceedings, the court may direct a meeting between experts under CrimPR Rule 19.6. The purpose is the same as in civil proceedings: to identify and narrow the issues in dispute. The meeting is without prejudice, and the joint statement produced after the meeting must be served on all parties and filed with the court.
Joint expert discussions in criminal proceedings are less common than in civil or family cases, partly because the adversarial nature of criminal proceedings means that prosecution and defence experts are rarely instructed to address the same questions. Where they are — for example, in cases involving psychiatric evidence on fitness to plead or diminished responsibility — a joint discussion can significantly narrow the issues for the jury.
The defence solicitor should consider requesting a joint discussion in any case where the prosecution has served expert evidence that conflicts with the defence expert's opinion. A well-conducted joint discussion may result in the prosecution expert accepting some or all of the defence expert's conclusions, which can be decisive in the outcome of the case.
Joint Discussions in Family Proceedings
In family proceedings, the court may direct a meeting between experts under FPR Part 25.16. The meeting is without prejudice. The experts must produce a joint statement recording their areas of agreement and disagreement. In children cases, the joint statement is particularly important because it helps the court understand the extent of the dispute and may avoid the need for lengthy oral evidence.
The letter of instruction for the joint discussion must be agreed by all parties. If the parties cannot agree, either party may apply to the court for directions. The letter should set out the specific issues the experts are asked to address and should provide any additional documents that have become available since the experts' reports were filed.
In public law children proceedings, the joint discussion is typically directed at the Issues Resolution Hearing (IRH) and takes place in the weeks before the final hearing. The 26-week timetable means that the joint discussion must be arranged promptly, and the experts must be available to meet within the timetable.
- The court may direct a meeting between experts at any stage
- The letter of instruction for the meeting must be agreed by all parties
- The meeting is without prejudice
- The joint statement must be filed with the court within the directed timetable
- The joint statement must record areas of agreement and disagreement with reasons
Preparing Your Expert for a Joint Discussion
Solicitors cannot attend the joint discussion, but they can prepare their expert for it. The following steps will help ensure the discussion is productive.
Scott Schedules and Expert Evidence
In complex cases — particularly construction disputes and non-accidental injury cases in family proceedings — the court may direct the preparation of a Scott Schedule. A Scott Schedule is a table that sets out each disputed issue, the parties' respective positions, and the expert evidence relevant to each issue.
In non-accidental injury cases, the Scott Schedule typically lists each injury alleged, the prosecution or local authority's explanation for the injury, the defence or respondent's explanation, and the expert evidence on each injury. The joint statement produced after the experts' meeting is often incorporated into or annexed to the Scott Schedule.
The Scott Schedule is a powerful tool for case management. It forces the parties to identify the real issues in dispute and to present the expert evidence in a structured way that the court can follow. Where the experts have agreed on some injuries but not others, the Scott Schedule makes that immediately apparent.