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20.8
The Working Party's view
It appears clear that SJE orders might be a bad idea in many cases. At the same time,
in suitable cases, all the parties and the court may benefit significantly from the
services of a well-chosen and intelligently employed SJE. The appointment of SJEs,
even if only in a minority of cases, may place a professional premium on impartiality
and so generally raise expert standards.
It is the Working Party's view that the court ought to have power to order the parties
to appoint a SJE, but that this power should be subject to clear guidelines, written into
the rules, designed to ensure that orders are not made in unsuitable cases and designed
to take into account the main concerns discussed above.
Such guidelines might, for instance, state that the court should not exercise its power
to order appointment of a SJE unless :-
(a)
at least one party applies for such an order; and,
(b)
the court is satisfied that a refusal by the other parties to agree to a SJE would in
all the circumstances be unreasonable, taking into account in particular :-
(i)
whether the issues requiring expert evidence in the case can confidently
be identified in advance;
(ii)
the nature of those issues and the likely degree of controversy attaching to
the expert evidence in question;
(iii)
the value and importance to the parties of the claim, as compared with the
cost of employing separate PAEs;
(iv)
whether any party has already incurred expenses instructing an expert
who may be asked to give evidence as an expert witness in the case;
(v)
whether any significant difficulties are likely to arise in relation to
choosing the SJE, drawing up his instructions or providing him with the
information and other facilities needed to perform his duties.
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