In a judgment handed down today ( EWHC 3657) Eady J, hearing a QB Appeal, has given useful guidance on the circumstances when it is appropriate to allow a party to disinstruct a single joint expert and to give permission to that party to rely upon their own evidence. The Judge considered in detail the comments of Lord Woolf in the well known case of Daniels v Walker (Practice Note)  1 WLR 1382 (see the notes in the White Book 2012 at paragraph 37.7.6) and the subsequent comments of the judge in Kay v West Midlands Strategic Health Authority, QB unreported (2007). The Judge concurred with submissions of the Claimant, who was the Appellant, that the reliance placed on Kay by the judge below, to the effect that the circumstances had to be “exceptional”, was misplaced. A much lower test was appropriate and in accordance with the comments of Lord Woolf in Daniels which suggested that the reasons for such an application should be “more than fanciful”. The Judge also made it clear that each such application had to be carefully considered on its facts – particularly where the evidence was fundamental to the claim, as in the instant case, and considerations of the ‘substance’ of the claim were irrelevant to such an exercise.
Simon Murray acted for the successful appellant.