Re DA (Whether to replace a Single Joint Expert) [2026] EWCOP 7 (T2) is a decision which, as its name helpfully makes clear, is about a procedural point that sometimes arises, namely where one party to a joint instruction of an expert (here a psychiatrist) is sufficiently discontented with their report that they want another run at matters. On the facts of the case before him, HHJ Burrows rejected the criticisms of the expert levelled at him by a number of the parties, both as to whether he had acted improperly in having a discussion with the solicitor for the applicant, and as to the quality of his report. However, that was not the end of the matter, as he asked himself:
51. […] is there a reason why the Respondents 2-7 should not be permitted to instruct an expert? I have been reminded of the cases decided in the early days of the Civil Procedure Rules. In Daniels v Walker[2000] 1 WLR 1382, Lord Woolf, M.R at [1387] said (my emphasis):
“…Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert or, if appropriate, to rely on the evidence of another expert.
In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.”
51. This was subsequently distilled by HHJ MacDuff, Q.C. (as he then was) in Cosgrove v Pattison [2001] CPRLR 177 into this:
“Where a party requests a departure from the norm and makes what one can term a Daniels v Walker application, all relevant circumstances are to be taken into account but principally the court must have its eye on the overall justice to the parties. This includes what I have called the balance of grievance test. The application will only succeed in circumstances which are seen to be exceptional and to justify such a departure from the norm.”
52. These cases were both cited by Mr Justice Eady in Bulic v Harwoods & Ors[2012] EWHC 3657 (QB)who considered further when it was proper to allow a party to instruct an expert. He said (at [16]) (my emphasis):
“The importance of the overriding objective was often emphasised. Judge MacDuff, for example, referred to “overall justice to the parties”. Moreover, Lord Woolf stressed the point in Daniels v Walker at p.1386H:
“If, having agreed to a joint expert’s report a party subsequently wishes to call evidence, and it would be unjust having regard to the overriding objective of the CPR not to allow that party to call that evidence, they must be allowed to call it.”
What represents justice between the parties will very much depend upon the facts of each case. For that reason, it can be distracting to focus too analytically on the reasoning in other cases, however authoritative, where the facts were not truly comparable. There are different factors to be taken into account and the importance of each is likely to vary according to the particular facts. For example, the saving of time and money is likely to assume greater significance in inverse proportion to the centrality of the issues. Where the court is concerned with a relatively “peripheral” issue, as in Kay, it is likely to be only in unusual circumstances that the services of a single joint expert will be dispensed with: see e.g. at [35]-[36].”
Applying this approach to the facts of the case before him, HHJ Burrows held that
60. In applying r.15.3(1) and PD 15A of the COPR 2017, I am satisfied that expert evidence is necessary to assist the Court to resolve these proceedings, and that permitting the Respondents 2-7 to obtain a further report is a proportionate departure from the single joint expert norm in this particular case. Capacity is foundational to jurisdiction and to the substantive welfare/property issues. DA himself disputes Dr Parvez’s conclusions and method; the issues are technically complex; and the additional focused report can be obtained without material delay. I have considered the saving of time and cost but, given the centrality of the capacity issues, I am satisfied that overall justice between the parties justifies the limited departure from the usual approach, while retaining the current expert.
61. Since circulating the draft of this judgment, the Official Solicitor has sought to be involved in the instruction of the Respondents 2-7’s chosen expert, and they have agreed. I have no objection to this and approve that approach.
62. I was also asked why I had not made an order enabling the other parties to instruct their own expert or a new jointly instructed expert, or, at least explain why I did not. The answer is simple. The other parties were happy with Dr Parvez. Dr Parvez can remain an expert, and the Court will consider his evidence in the light of further evidence for the other expert, should that not agree with him. Allowing the other parties to instruct their own expert, or to instruct a different jointly instructed expert would likely increase cost and delay, and it is not necessary to ensure fairness to them in this case.
Comment
To the best of my knowledge, this is the first reported case to address the issue of the further instruction of an expert in such circumstances (although it is definitely not the first the time it has occurred). We had drawn upon Daniels v Walker in the Court of Protection Handbook in addressing this situation, and it is very helpful that HHJ Burrows considered that the approach applied, notwithstanding that the test for permitting expert evidence is higher under the tighter under the CoPR than it is under the CPR (‘necessary’ under r.15.3(1) COPR 2017 compared to ‘reasonably required’ under r.35.1 CPR 1998). Whilst he did not explain precisely why this was the case, it is clear that he directed himself by reference to the COPR test. It may be that in a future case – especially one where P is legally aided and any instructing party may have to account to the Legal Aid Agency – a more detailed explanation will be necessary, but this case will undoubtedly give assistance in such a situation.
