Using an independent expert to narrow issues

An independent expert can sometimes narrow a dispute without investigating every issue. The Civil Justice Council's guidance explains the responsibilities involved when instructing experts for civil claims. ^[1]

Agree a question that can be answered Define the disputed measurement, cause or valuation date. List the documents and assumptions to be used. Ask the expert to identify uncertainty rather than forcing a yes-or-no conclusion that the evidence cannot support.

Decide whether the parties want advice, evidence for proceedings or a contractually binding expert determination. Those are different arrangements. A jointly chosen specialist does not automatically have power to make a binding decision.

Plan what happens after the opinion Agree who pays, who receives the report and whether questions may be put to the expert. Consider whether access to the same source data is needed for both parties to understand the result.

Connect the assessment to any proposed court expert evidence. If it resolves a technical point, record what remains for mediation or negotiation. Avoid presenting a limited conclusion as a finding on liability or the entire amount claimed.

Select an issue that an expert can genuinely isolate Identify the narrow point preventing progress. It might be a measurement, the condition of an item at inspection or a valuation using an agreed date and basis. Ask whether that point can be examined without first resolving a contested legal interpretation or a large body of disputed facts. A limited assessment works best when its boundaries are intelligible. If the proposed question quietly contains the entire dispute, the parties may be commissioning a much broader and more expensive exercise than they expect.

Write the question in language that does not assume the desired conclusion. Explain the different positions and the source information available to test them. Ask the expert whether the question is answerable and what additional material is essential. Where a factual premise is disputed, consider whether alternative assumptions can be analysed rather than asking the expert to decide credibility outside their role. This preparation helps ensure that a concise report produces a usable result instead of a conclusion that one side immediately rejects as based on the wrong question.

Agree the expert's role before treating the result as decisive Distinguish preliminary advice, evidence for court proceedings and a contractual expert determination. Choosing a person jointly does not automatically make the outcome binding. If the parties intend a binding process, obtain advice on the agreement establishing it, its scope and the consequences of the determination. If they want only an independent opinion to assist negotiations, make that purpose clear. The Civil Justice Council's guidance concerns experts in civil claims and helps explain responsibilities; it does not turn every jointly commissioned opinion into a final adjudication. [1]

Clarify who is instructing the expert, who receives the report and how communications will be handled. Where instructions are joint, avoid undisclosed factual submissions that leave one side unable to understand the basis of the assessment. Agree an appropriate way to raise queries and provide further material, subject to the chosen process and legal advice. The expert should not have to infer from conflicting emails whether one participant can change the question or expand the commission without the other's involvement.

Define the evidence, access and cost boundaries Prepare the agreed source set and identify its limitations. For a valuation, the date, asset description and assumptions may be central; for a measurement, access and methodology may matter more. Record missing information and distinguish an agreed assumption from a fact established by evidence. If the expert needs to inspect something, arrange the location, timing and relevant participation in advance. A narrow appointment can still fail if the practical conditions prevent the expert from examining the matter the parties asked them to assess.

Set an initial scope, estimate and route for authorising extra work. Ask the expert to flag when the question cannot be answered within the agreed limits. Avoid an open-ended instruction to do whatever is necessary without understanding the likely cost or the value of the disputed point. Consider how fees will be allocated and what happens if one participant does not provide information or access. These are matters to settle before the report is expected, because disagreement about the commission can otherwise become a second obstacle to resolution.

Translate the finding into a revised dispute position When the report arrives, identify precisely what it answers and what it leaves open. A measured shortfall does not necessarily determine legal liability, the appropriate remedy or the whole loss calculation. Discuss those remaining questions with the adviser and compare the result with any assumptions used during negotiations. If a conclusion is unclear, use the agreed clarification process. Do not edit the report or circulate a selective summary suggesting a wider finding than the expert actually made.

Record any point the parties now accept and identify the next unresolved issue. The result may support a revised calculation, a focused mediation discussion or a decision that further litigation is disproportionate. If the assessment was intended to have binding effect, obtain advice about implementing that effect under the governing agreement. Keep the report, instructions and material clarifications together. This allows the independent work to reduce the dispute in a demonstrable way, while preserving the distinction between the technical answer and the legal or commercial decisions that follow it.