Joint expert meetings: best practice, common pitfalls, and what instructing solicitors expect

Joint expert meetings are often pivotal in litigation. Their importance should not be underestimated. A focused expert discussion can narrow the issues, clarify disagreement, and materially affect the parties’ assessment of risk. In this article, Alexandra Winch explains why it is essential that both solicitors and experts understand the purpose of the meeting and the importance of the joint statement in assisting the court.

Joint expert meetings can be nerve-racking for an expert. Experts are left to their own devices and required to engage directly with their opposite number without the immediate support of the legal team. A poorly prepared expert, an unclear concession or unexplained change of opinion can materially weaken, and in some cases derail, an otherwise well-prepared case.

What is the purpose?

Civil Procedure Rule (CPR) 35.12 provides that the court may direct experts of like discipline to discuss the expert issues in the proceedings. Although joint expert meetings are not mandatory in every case, they are common in high-value claims where important expert issues remain in dispute.

Their purpose is to identify and discuss those issues and, where possible, reach agreement. Following the discussion, the experts must prepare a statement for the court setting out the issues on which they agree and disagree, with a summary of their reasons for any disagreement.

Practice Direction 35 makes clear that expert discussions are not intended to settle the case, nor should they be treated as an adversarial exercise. Properly approached, they are a focused professional discussion designed to narrow the issues and assist the court in understanding what is agreed, what remains in dispute, and why.

What experts should do and how to avoid common pitfalls

• Ensure that you have all of the documents required for the joint meeting. This should include the pleadings, relevant medical records, witness evidence, all expert reports and, importantly, any literature or publications relied upon or referred to by your counterpart. It is sensible to confirm in advance that both experts are working from the same document list. If there is any uncertainty, raise it with your instructing solicitor as early as possible.
• Prepare thoroughly. Experts should read the relevant documents in full and have a clear grasp of the issues before the meeting. In particular, they should revisit the pleadings, review both experts’ reports, and ensure they are working from the latest versions. They should also check that any literature, publications, or other materials relied upon or referred to by their counterpart have been provided and reviewed. It may be useful to prepare an aide-memoire of key medical records, chronology points, expert evidence, and supporting literature, so that important material can be accessed quickly during the discussion.

In my own experience, a lack of thorough preparation can lead an expert to make an unintended concession. In one case, a vascular surgery expert had expressed the firm opinion that an ischaemic limb should have been revascularised within six hours. During the joint meeting, however, the opposing expert persuaded him that the outcome was likely to have been the same even if the delay had been limited to eight to ten hours. The joint statement then recorded agreement that the outcome was probably unavoidable, effectively undermining the causation case. The expert had not identified the key battleground issue in advance and appeared to have been influenced by a more forceful counterpart.

• Although an agenda is not required in every case, experts should clarify with their instructing solicitor whether an agenda has been agreed or directed. If an agenda is to be used, the expert should not proceed until it has been provided and they have had a proper opportunity to review it. Any unclear questions, or issues outside the expert’s expertise or the proper scope of the discussion, should be raised with the instructing solicitor in good time.
• Experts must remember that they are independent and that their primary duty is to the court, not the party instructing them. They may liaise with instructing solicitors about logistics, documents, or clarification of the agenda, but must not seek or receive input on the substance of the joint statement. Draft joint statements should not be sent to solicitors for comment, and substantive discussions with the legal team should not continue once the expert meeting process has started. The decision in Patricia Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) provides an important warning. The claimants’ expert repeatedly sent draft joint statements to the instructing solicitors, who commented on substantive matters. Master Fontaine held that the expert’s independence had been compromised and revoked permission for the claimants to rely on that expert. The consequences were significant, with approximately £225,000 in expert fees already incurred.
• Be careful with assumptions. Where opinions depend on different factual assumptions, those assumptions should be identified expressly. Some disagreements may turn not on differing expert opinions but on which version of the factual or clinical chronology is accepted. Remember that factual disputes are for the court to decide and not the experts.
• A common practical problem is that one expert may be more forceful, senior, or experienced. Experts should not let a more dominant expert control the process. They should remember that professional courtesy does not extend to agreement where disagreement genuinely remains.
• Avoid vague wording. This can create unnecessary difficulty and false agreement by using phrases such as “broadly agreed” or “not significantly different”. Experts should use concise language on what is and what is not agreed.

In one case from my own experience, two orthopaedic experts agreed that surgery should have taken place “promptly”. That apparent agreement, however, concealed a fundamental difference in their respective positions: one expert understood “promptly” to mean within six hours, while the other meant within 24 hours. It only became apparent later that the experts had been using the same word to express materially different timescales.

• An obvious but important point is that experts must read and re-read the joint statement carefully before signing it. Do not allow time pressure to compromise the accuracy of the joint statement. Where one expert has taken the lead in preparing the draft, it is dangerous to assume that the statement accurately reflects each expert’s final position. The joint statement is the document that will go before the court and will carry significant weight in the parties’ assessment of the case. Experts should expect to be held to what they have signed.

In another case from my own experience, one expert prepared the first draft of the joint statement. A series of rapid revisions followed, during which a nuanced area of disagreement was reduced to a short paragraph stating that “the experts agree there was no delay of clinical significance”. The expert later maintained that this did not reflect what had been discussed. Unfortunately, by that stage, the expert had signed the joint statement and there was very little that could be done to remedy the position.

What does a good joint statement look like?

A good joint statement should be clear, concise, and useful to the court. Its purpose is to narrow the issues in dispute, not simply to regurgitate the content of the experts’ reports. Where areas of disagreement remain, the experts should identify the precise reason for the disagreement and refer to the evidence, medical records, or literature that supports their position. As Mrs Justice Yip observed in Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB), “sometimes less is more” when it comes to joint expert statements. In that case, the court was critical of a joint statement that had grown to around 60 pages. Lengthy, report-like statements should be avoided.

Changing opinion

Experts can and should change their opinion where it is appropriate to do so. If the discussion, the documents, or the opposing expert’s reasoning causes an expert to revise their view, that should be stated clearly. However, any change of opinion must be properly explained. The joint statement should identify what has changed, why, and the evidential or reasoning basis for that change. Difficulty arises where an expert makes an unexplained concession or changes their opinion without providing reasoning or justification.

Instructing solicitors expect experts to approach joint meetings with independence, preparation, and care. That means understanding the issues, engaging constructively with the opposing expert, identifying genuine areas of agreement, and explaining disagreement clearly. Above all, solicitors need a joint statement that accurately reflects the expert’s true opinion and assists the court, rather than creating ambiguity, unexpected concessions, or further dispute.