The Court of Appeal allowed the appeal. It considered that District Judge Enzer had overlooked the provisions of CPR 35.8. Those provisions provided that each party can instruct a joint expert. There was therefore no provision within the rules requiring the parties to agree upon joint instructions.
Each party may provide their own separate instructions to the single joint expert. As a result District Judge Enzer did not have any jurisdiction to insist that the joint expert received a single set of instructions from the parties. If Judge Hull had realised that the district judge had proceeded on that mistaken basis then he would not have confirmed the strike-out order.
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The purpose of engaging a single joint expert is primarily to reduce costs. If one expert can deal with the matter then the litigation should be more economic than if each party engaged its own expert. However, it is not entirely clear how the parties are to instruct that single expert.
The parties may often try to agree a single set of instructions in order that both parties are clear about the work that the expert will undertake, and also in an attempt to avoid confusing the expert by providing him or her with conflicting instructions. In this case it appears that District Judge Enzer was trying to ensure that the expert received one set of instructions to avoid confusion. Nonetheless, the rules provide that each party may provide instructions to the joint expert. As a result of the Court of Appeal's ruling it is now clear that parties can issue separate instructions to a single joint expert. Quite how an expert is to resolve conflicting instructions is unclear. Perhaps an expert will seek further clarification from the parties, or, failing that, apply to the judge for guidance.