Joint and not so joint statements

Over the last year, Kate and the team have attended a number of meetings of experts in respect of commercial disputes.

It’s probably fair to say that, whilst the meetings themselves have been relatively productive, the preparation of the resulting joint statement has not always gone smoothly.

In this article we take a look at some of the ‘bumps in the road’ that we have encountered which have hampered the prompt production of a clear and concise joint statement.

Purpose of a joint statement

The purpose of a joint statement is to ‘narrow the gap’ between the experts. This gap most commonly arises from differences in the information and instructions provided to the experts leading to different assumptions being adopted. In theory, therefore, a joint statement should be reasonably straight forward to prepare. The joint statement effectively highlights the different approaches being adopted and hopefully enables the experts to agree that, if the facts were different, the approach adopted by the other expert would be reasonable.

‘Switched on’ experts will come up with strong counter-arguments in favour of their own views

Joint statements are prepared through a back and forth process of drafting which, if both experts are focused, can result in the process being completed within a relatively short timescale.

For those who have not seen a joint statement, ours are usually presented in a landscape style using a tabular format. Agreed issues are set out at the start. For each issue of disagreement the opinions of expert A and expert B are stated side by side. This enables the judge to quickly focus in on the key quantum related issues in the case and understand the views of the respective experts.

The joint statement should, in theory, be straight forward

That’s the theory. And where we have faced experts who have dealt with many joint statements in the past, this has largely been the practice. ‘Switched on’ experts will come up with strong counterarguments in favour of their own views but the process of producing a joint statement is straightforward.

In fact, the process of preparing a joint statement with a strong opposing expert is helpful because it forces each expert to focus on their views under challenge from a peer. It identifies the areas of focus for cross examination and can flush out areas for concession before trial.

So, what can go wrong? As we always say when asked to provide a fee estimate for preparing a joint statement – it depends on the behaviour of the opposing expert…

It’s all Greek

When acting opposite another expert in a partnership dispute, it became clear that the expert was new to the world of forensic accountancy and had never previously prepared an expert report or a joint statement. Whilst undoubtedly a competent accountant, it was apparent that the other expert was struggling to deal with the hypothetical and to move away from debits and credits.

We had to guide the expert through the process, resulting in time consuming toing and fro-ing. This fact was not lost on our client who ultimately commented “I effectively paid for you to train [expert], didn’t I?”

joint statements
Repeating chapter and verse

In our opinion, the best joint statements are short and to the point – a judge is not looking for War and Peace and will have read the experts’ reports.

When we were provided with a first draft of a joint statement which effectively copied large sections of the other expert’s report, we were unable to convince the expert that such reiteration was not necessary or helpful. The result was a lengthy joint statement (at least in the column of the other expert).

Of course, if there are matters which require highlighting or further information has led to a change of opinion, it may be difficult to be brief. In these situations it is usually better for the expert introducing new arguments to prepare an appendix to the joint statement.

Stubborn as a mule

As mentioned above, the purpose of the joint statement is to narrow the gap between the two experts’ opinions. This can be difficult if one expert views the purpose of the statement as being to argue the toss and refuses to change their position even in light of new evidence or identified errors.

The result is a rather unhelpful joint statement. In our experience, judges have not looked too favourably on this stance as they want to see an expert who is independent and able to agree that their opinion should change in light of new information or a different factual matrix.

A puppet on a string

On more than one occasion we have worked opposite experts who appear to be controlled by their instructing solicitors.

Why have we thought this? Either the expert has admitted that their solicitors have instructed them not to comment on matters within their expertise, they have been told to down tools (a delaying tactic) or it has become evident from significant changes between drafts (particularly where the wording changes significantly and starts to resemble legalese).

Preparing a joint statement with a strong opposing expert can help identify areas of focus for cross examination

In such cases, the resulting joint statement effectively becomes a joint statement with the other party’s instructing solicitors – not the intended purpose. In BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] the High Court took a dim view of this.

While our instructing solicitors have no control over our opposing expert, it is useful for them to have an understanding of some of the hurdles we may have to overcome. Many of these issues remain cloaked within the ‘without prejudice’ nature of discussions but it is helpful to see that, in some cases, they can make their way into the courtroom.

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Article taken from our Summer edition. You can download our latest Forensis newsletter from our latest publications page.

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