What is Expert Determination?
Expert determination is a flexible alternative procedure for the resolution of disputes based upon the decision of an independent third party: the expert.
The participants agree beforehand to be bound by the decisions of an independent expert.
It is often the quickest and most effective way of resolving disputes which are relatively simple in content or are essentially technical in nature.
According to our Expert Determination Rules the role of the expert is summarised as follows:
1. The expert shall determine the dispute as an expert in accordance with these rules and according to law.
2. The participants agree that:
i) the expert is not an arbitrator of the matters in dispute and is deemed not to be acting in an arbitral capacity;
ii) the process is not an arbitration within the meaning of any statute.
3. The expert shall adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay and expense, so as to provide an expeditious, cost-effective and fair means of determining the dispute.
4. The expert shall be independent of each participant, and act fairly and impartially, giving each participant a reasonable opportunity to put forward their case, as well as a reasonable opportunity to make submissions on the conduct of the process.
An Expert Witness is an Expert who is engaged for their experience and expertise in a particular field or discipline to provide an Evidential Report covering matters in dispute, and on which the Expert will be examined in any relevant hearings. The Expert should give an informed, objective and impartial opinion based on the facts presented. The first duty of an Expert is to the court, arbitrator or tribunal and not to the party who appoints them.
Engaging Experts Early
Once the decision is made to use an expert, counsel must next consider when to engage the expert. With few exceptions, it should be done as early as possible for the following reasons:
It increases the chance that your client will be able to retain the expert best suited for the case and that your chosen expert will not be prevented from representing your side because of a conflict of interest.
Expert advice can be critical in making the most of fact discovery, as experts can be invaluable in framing discovery requests, identifying fruitful issues to investigate in depositions, and even identifying the right personnel to depose.
It allows counsel to use the expert (sometimes in the consulting role) to add input on often-valuable early-stage questions, such as whether or not the value of the case is enough to make it worth litigating, potential settlement value, identification of key technical, economic, or financial concepts or issues, and whether the expert’s findings and opinions have implications for other parts of counsel’s legal strategy.
Early participation helps the expert to develop the most effective opinion, as he or she will benefit from sufficient time to do appropriate research as well as the ability to ensure that the data and information central to the expert’s opinion can be collected and made available for analysis.
Party Appointed Expert (PAE): This is the traditional type of Expert used. The PAE may assist his appointer in the preparation of the case. He will normally submit drafts of his report. He will have the benefit of conferences with counsel and meetings with the other side’s expert. The expert is appointed by only one of the parties
Single Joint Expert (SJE): The court has the ability to Order that evidence can only be given by a Single Joint Expert. The Order requires the parties to jointly appoint the SJE. He is not appointed by the Court. The expert is appointed and instructed by both of the parties involved in the dispute.
Expert Adviser: The Expert is appointed by one of the parties to advise them in the dispute – this type of Expert is not covered by the Civil Procedure Rules and does not have an overriding duty to the court. An Expert Adviser can also be appointed to assist the parties in the preparation of their case where an SJE has been appointed.
The PAE & SJE have identical duties in court
- Have an overriding duty to the court – Not to the client(s)
- Have an obligation to help the court
- Have to be impartial and independent
- Have duties to the parties who appointed them
- Are instructed by those who appoint them
- Are paid by those who appoint them