The case of Edwards v Bruce & Hyslop (Brucast) Limited3 acts as a reminder of the rules regarding communications between parties and a single joint expert.
The court’s consideration of these rules arose out of a dispute between an architect, Mr Edwards, and his client, Bruce & Hyslop (B&H). The parties had appointed a single joint expert (an architect) to consider whether or not Mr Edwards’ work (which involved manufacturing, supplying and installing three wrought iron balconies) was of a suffi ciently good standard. The expert opined that the work was of a suffi cient standard.
Notwithstanding this decision, there remained a dispute between the parties regarding payment for the work and Mr Edwards issued proceedings. Given the relatively low quantum involved, the court ordered that a single joint expert should be appointed and it was agreed that the same expert that was used in the preaction stage should be retained again.
The expert’s second report was unfavourable to the architect, Mr Edwards. Mr Edwards’ solicitors then learnt that B&H had been engaging in “secret” communications with the expert. They applied to the court for permission to obtain their own expert evidence on the basis that the single joint expert’s evidence was tainted.
The application was granted and then subsequently appealed. B&H argued on appeal that the judge had given insuffi cient weight to the usual course of events (which, in modest value cases, was to appoint a single joint expert) and that the judge had not found that the expert’s integrity had been impaired by “inappropriate” access.
Mr Justice Coulson dismissed the appeal. He concluded that whilst it was the usual course of events to appoint a single joint expert in modest value cases, given the “secret” communications it was appropriate for Mr Edwards to appoint his own expert on this occasion. He also confi rmed a previous ruling4 that where a single joint expert had been appointed it is not permissible for one party to have a conference with the expert, in the absence of the other party, without the latter’s prior written consent.