In a recent judgement in a case where I gave evidence, I was pleased to see the court found that:
“Much of the "number-crunching" was agreed by the two experts. There remained a small number of issues in dispute.”
I have also had the happy experience, on a number of occasions, where courts and tribunals have dispensed entirely with hearing oral evidence from the expert accountants because the matters at issue, and therefore that need to be decided, had been made clear in the Expert’s Joint Statement.
This does not, of course, happen by accident. With significant amounts of technical evidence and multiple issues emerging from the reports that we exchange with our counterparts, the Joint Statement has become a major exercise. The document itself requires careful drafting to ensure it is both accurate, clear and helpful. Further, while the document reflects my view as expert, it is important that the instructing legal team understand the reasoning and implications of the matters agreed.
Given its importance, in most cases, I have no hesitation in taking the time needed to fully discuss and draft a document despite a limited timetable. Given the value to be derived from the document, in my experience, most tribunals are happy to allow additional time to agree a complete document if the experts agree to request this.
For the sake of brevity, it is important to avoid developing new lines of discussion, but necessary to flag any such issues so that these can be addressed in supplemental reports. Raising new issues after the joint statement has been finalised potentially represents a backward step.
The Experts’ Joint Statement has become a critical part of the evidence provided to courts and tribunals and a document on which they potentially place great reliance. Far from being an afterthought, the whole exercise of meeting and agreeing a Joint Statement is a critical step in the litigation or arbitration process.