Single Joint Experts (SJEs): When the Court Orders One, and How to Instruct Them

In clinical negligence litigation, the instruction of a single joint expert (SJE) is a mechanism designed to streamline proceedings, reduce costs, and promote agreement on technical issues. Under the Civil Procedure Rules (CPR) Part 35, the court may direct that expert evidence be given by a single expert instructed jointly by the parties. This approach is particularly common in cases where the clinical issues are discrete, the alleged breach is technical rather than contentious, or the parties agree that a neutral opinion will expedite resolution.

For solicitors acting in clinical negligence claims, personal injury matters, or inquests, understanding when and how to instruct an SJE is critical. The process requires careful subspecialty matching, precise instruction drafting, and an appreciation of the expert’s duty to the court. This article outlines the legal framework, clinical considerations, and practical steps for instructing an SJE effectively.

Legal Framework: CPR Part 35 and the Role of the SJE

CPR Part 35.12 governs the appointment and instruction of single joint experts. The rule provides that where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence be given by a single expert. The parties are jointly and severally liable for the expert’s fees, and the expert’s duty is to the court, not to any individual party.

The court’s power to order an SJE is discretionary and will typically be exercised where:

• The issue is technical rather than contentious (e.g., interpretation of imaging, adherence to NICE guidance, or calculation of life expectancy).
• The parties agree that a single expert is appropriate.
• The cost of instructing separate experts is disproportionate to the value or complexity of the case.
• The issue is narrow (e.g., a discrete breach question, such as whether a troponin result was acted upon within an appropriate timeframe).

In practice, SJEs are more commonly appointed in lower-value claims or fast-track cases, but they may also be used in multi-track matters where the parties agree on the need for a neutral opinion. The court may also order an SJE where it considers that separate experts would lead to unnecessary duplication or delay.

Key authorities underscore the importance of expert evidence in clinical negligence claims. The Bolam test (Bolam v Friern Hospital Management Committee [1957]) and its refinement in Bolitho (Bolitho v City and Hackney Health Authority [1998]) require that expert opinion be logical, defensible, and grounded in a responsible body of clinical opinion. An SJE’s report must meet these same standards, even though the expert is instructed jointly.

When an SJE is Appropriate: Clinical and Legal Considerations

Not all clinical negligence cases are suitable for an SJE. The decision to seek or agree to a single joint expert should be guided by the following factors:

1. Nature of the Alleged Breach

An SJE is most appropriate where the alleged breach turns on a technical or procedural issue, rather than a dispute about clinical judgment. Examples include:

• Adherence to guidelines: Whether a GP’s referral for suspected cancer met the 2-week-wait standard under NICE NG12.
• Interpretation of investigations: Whether an ECG showing ST-elevation was correctly identified as indicative of acute coronary syndrome, in line with NICE NG185.
• Timeliness of intervention: Whether thrombolysis was administered within the 4.5-hour window for stroke, as per NICE NG128.
• Procedural compliance: Whether the WHO surgical safety checklist was completed prior to a procedure.

In such cases, the question is often binary: was the guideline followed, or was it not? An SJE can provide a neutral assessment without the adversarial overlay that may accompany party-appointed experts.

2. Complexity and Subspecialty Matching

The right subspecialty is critical. For example:

• A case involving alleged delay in diagnosing aortic dissection requires a cardiothoracic expert, not a general cardiologist.
• A claim concerning the management of shoulder dystocia in labour demands an obstetrician with expertise in intrapartum emergencies, not a general obstetrician.
• A dispute about the interpretation of a paediatric sepsis pathway requires a paediatric intensivist or emergency medicine consultant, not a general paediatrician.

Multi-disciplinary medico-legal chambers can be particularly valuable in SJE cases, as they offer access to a broad panel of subspecialists. Where a case spans multiple disciplines (e.g., a cardiac arrest leading to anoxic brain injury, with subsequent psychiatric sequelae), the chambers can provide matched experts from cardiology, neurology, and psychiatry, ensuring coherence in the joint instruction and report.

3. Proportionality and Cost

The court’s overriding objective under CPR Part 1 includes dealing with cases proportionately. In lower-value claims, the cost of instructing separate experts may be disproportionate to the damages at stake. An SJE can provide a cost-effective solution, particularly where the parties agree on the clinical issue in dispute.

However, proportionality must be balanced against the need for robust evidence. If the alleged breach involves a nuanced clinical judgment (e.g., whether a particular surgical approach was reasonable), separate experts may be necessary to explore the range of responsible clinical opinion.

Instructing an SJE: Practical Steps for Solicitors

Once the court has ordered an SJE, or the parties have agreed to instruct one, the following steps should be taken to ensure the process is efficient and compliant with CPR Part 35.

1. Selecting the Right Expert

The choice of expert is pivotal. The instructing solicitors (or the court, if directing the appointment) must ensure the expert has:

• Relevant subspecialty expertise: The expert’s clinical practice must align with the issue in dispute. For example, a case involving the management of hypertrophic cardiomyopathy (HCM) requires a cardiologist with specific expertise in inherited cardiac conditions, not a general cardiologist.
• Medico-legal experience: The expert should be familiar with the requirements of CPR Part 35, including the duty to the court, the format of reports, and the joint statement process.
• Impartiality: The expert must be independent and free from any conflict of interest. This includes no prior involvement in the care of the claimant or the deceased, and no financial or professional relationship with any of the parties.

Multi-disciplinary chambers can simplify this process by offering a curated panel of experts across specialties, ensuring that the selected expert is both clinically appropriate and experienced in medico-legal work.

2. Drafting the Letter of Instruction

The letter of instruction must be clear, focused, and compliant with CPR Part 35. It should include:

• Background to the claim: A concise summary of the alleged index events, the clinical issues in dispute, and the questions the expert is being asked to address.
• Specific questions: The questions should be framed to elicit a focused opinion on the technical or procedural issues. For example:
  • “Did the GP’s referral for suspected colorectal cancer meet the 2-week-wait standard under NICE NG12?”
  • “Was the interpretation of the CT scan consistent with the standard expected of a consultant radiologist?”
  • “Was the delay in administering thrombolysis for stroke consistent with NICE NG128?”
• Documents to be provided: The expert should be given all relevant medical records, including:
  • GP records (where applicable).
  • Hospital notes, including admission and discharge summaries, operation notes, and nursing records.
  • Investigation results (e.g., blood tests, imaging reports, ECG traces).
  • Correspondence between clinicians.
  • Any previous expert reports (if the SJE is being instructed after initial reports have been obtained).
• Timetable: The letter should specify the deadline for the report, in line with the court’s directions or the parties’ agreement.
• CPR Part 35 compliance: The letter must remind the expert of their duty to the court, as set out in CPR Part 35.3, and that their report must comply with CPR Part 35.10 (e.g., include a statement of truth, list of documents relied upon, and details of the expert’s qualifications).

3. Managing the Expert’s Report

Once the SJE has produced their report, the parties must consider its contents carefully. The report should:

• Address each question posed in the letter of instruction.
• Provide a clear, reasoned opinion based on the available evidence.
• Identify any areas of uncertainty or limitations in the evidence.
• Comply with CPR Part 35.10, including a statement of truth and a declaration of the expert’s understanding of their duty to the court.

If a party disagrees with the SJE’s opinion, they may seek permission from the court to instruct their own expert. However, this is not automatic and will depend on the court’s assessment of whether the disagreement is justified and whether separate evidence is necessary to resolve the issue.

4. Joint Statements and Further Questions

Under CPR Part 35, the parties may put written questions to the SJE to clarify their report. These questions must be proportionate and focused on the issues in dispute. The expert’s answers form part of their report and are admissible as evidence.

If the parties remain in dispute after the SJE’s report, the court may direct that the experts meet to prepare a joint statement, as provided for in CPR Part 35.12(5). The joint statement should identify areas of agreement and disagreement, and the reasons for any divergence in opinion. This process can be particularly valuable in narrowing the issues for trial.

Common Pitfalls and How to Avoid Them

Instructing an SJE is not without risks. The following pitfalls are common in clinical negligence cases and should be avoided:

1. Inadequate Subspecialty Matching

Selecting an expert with insufficient subspecialty expertise can undermine the report’s credibility. For example:

• Instructing a general orthopaedic surgeon to opine on the management of a spinal cord injury, rather than a spinal surgeon, may lead to a report that lacks the necessary depth of clinical insight.
• Asking a general psychiatrist to assess the capacity of a patient with a complex neurodegenerative condition, rather than an old-age psychiatrist or neurologist, may result in an opinion that does not reflect the nuances of the condition.

Multi-disciplinary chambers can mitigate this risk by offering access to a broad range of subspecialists, ensuring that the expert’s clinical practice aligns with the issue in dispute.

2. Poorly Drafted Instructions

A letter of instruction that is vague, overly broad, or fails to focus on the key issues can lead to a report that does not address the questions the court needs to resolve. For example:

• A question such as “Was the care negligent?” is too broad and may elicit an unfocused response. Instead, the question should be framed around specific issues, such as “Did the delay in administering antibiotics for sepsis meet the standard expected of an A&E consultant?”
• Failing to provide the expert with all relevant records can result in an opinion that is based on incomplete evidence.

3. Overlooking the Expert’s Duty to the Court

An SJE’s duty is to the court, not to the instructing parties. This means the expert must provide an independent opinion, even if it is not favourable to the party that suggested their appointment. Solicitors must ensure that the expert understands this duty and that the report reflects it.

4. Delay in Instruction

Instructing an SJE late in the proceedings can lead to delays and may result in the court refusing permission for the report to be adduced as evidence. Solicitors should consider the need for an SJE at an early stage, particularly in fast-track cases where the timetable is tight.

The Role of the Expert Witness in SJE Cases

The expert’s role in an SJE case is distinct from that of a party-appointed expert. While the duty to the court remains the same, the SJE must navigate the expectations of both parties and ensure that their report is neutral, evidence-based, and compliant with CPR Part 35.

Key aspects of the SJE’s role include:

• Neutrality: The SJE must avoid any perception of bias. This includes ensuring that the report does not favour one party over the other and that any assumptions made are clearly stated.
• Clarity: The report must be written in a way that is accessible to non-clinical readers, including judges and legal practitioners. Technical terms should be explained, and the reasoning behind the expert’s opinion should be transparent.
• Compliance with CPR Part 35: The report must include all the elements required by CPR Part 35.10, such as a statement of truth, a list of documents relied upon, and a declaration of the expert’s understanding of their duty to the court.
• Responsiveness to Questions: The SJE must be prepared to answer written questions from the parties and, if directed by the court, to participate in a joint statement process with other experts.

In cases where the clinical issues span multiple specialties, the SJE may need to liaise with other experts to ensure that their opinion is coherent and comprehensive. For example, a case involving a cardiac arrest leading to anoxic brain injury may require input from a cardiologist, a neurologist, and a psychiatrist. Multi-disciplinary chambers can facilitate this process by providing matched experts from the same panel, ensuring consistency in the evidence.

Conclusion: Practical Takeaways for Legal Practitioners

Instructing a single joint expert can be an effective way to resolve technical or procedural issues in clinical negligence claims, particularly where the parties agree on the need for a neutral opinion. However, the process requires careful planning, precise instruction drafting, and a focus on subspecialty matching.

For solicitors acting in such cases, the following steps are critical:

1. Assess suitability: Determine whether the case is appropriate for an SJE, considering the nature of the alleged breach, the complexity of the clinical issues, and the proportionality of the costs.
2. Select the right expert: Ensure the expert has the relevant subspecialty expertise and medico-legal experience. Multi-disciplinary chambers can provide access to a broad panel of experts, simplifying this process.
3. Draft focused instructions: The letter of instruction should be clear, concise, and compliant with CPR Part 35. It should pose specific questions and provide all relevant records.
4. Manage the report: Review the SJE’s report carefully and consider whether further questions or a joint statement are necessary to clarify the issues.
5. Engage with the court: If the parties disagree with the SJE’s opinion, seek permission from the court to instruct a separate expert, where appropriate.

Multi-disciplinary medico-legal chambers offering matched subspecialist expertise can be pivotal in cases of this nature, particularly where the right consultant subspecialty determines the strength of the evidence. By ensuring that the expert’s clinical practice aligns with the issues in dispute, solicitors can maximise the value of the SJE’s report and streamline the litigation process.