1. What is Expert Joint Statement?

Under English CPR Part 35.12, Indian Order XXVI Rule 10A CPC read with Section 45 Indian Evidence Act, and International Arbitration Rules ICC Art 25(5), SIAC Rule 30.1, LCIA Art 21.1:

When both sides appoint their own experts, the Court / Tribunal directs them to:

1. Meet without lawyers present - Without Prejudice Expert Conclave
2. Discuss issue by issue
3. Prepare Joint Statement / Joint Memorandum setting out:
   • Issues agreed
   • Issues disagreed with reasons
   • Reasons for disagreement - facts, methodology, assumptions

It is NOT a compromise. Experts must not be pressured to agree.

Purpose: Narrow issues, save court time, expose methodological gap early, allow hot-tubbing (concurrent evidence).

Standard Format:

1. Issue 1: Valuation of fintech platform at exit - Agreed / Not Agreed
2. Basis: DCF vs Market Multiple
3. Reasons for disagreement: Expert A used WACC 12%, Expert B used 18% due to regulatory risk premium

Signed by both experts, filed as independent evidence.

2. What is Coordination Gap?

Coordination Gap is the failure of that process. It has 3 forms:

Type A - Procedural Gap: Experts never meet, or meet with lawyers, or file separate statements without conferring. Joint statement becomes two separate reports stapled together.

Type B - Substantive Gap: Experts discuss but do not identify why they disagree - e.g., one uses RBI valuation guidelines, other uses IVS, but joint statement does not record it. Tribunal cannot decide.

Type C - Temporal Gap: Experts meet too late - after hearing has started, or after cross-examination. Purpose lost.

Courts call this "Ships passing in the night" experts.

3. Legal Consequences of Coordination Gap

A. Adverse Costs: Court can disallow expert fees.
B. Weight Reduction: Evidence given less weight as not tested via joint statement.
C. Exclusion: In extreme cases, expert evidence excluded for non-compliance with CPR 35.
D. Adverse Inference: Tribunal infers expert unable to defend methodology.

4. Detailed Case Laws

UK - CPR 35 Line

1. Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1583 (TCC) - The Leading Case on Joint Statement Failure
Construction dispute - £12m. Both quantum experts filed joint statement but did not agree on single item - over 300 items remained in dispute. No reasons given for disagreement.
Justice Fraser held:

• Joint statement must contain reasons for disagreement, not just statement that they disagree.
• Experts failed in their overriding duty to court under CPR 35.3.
• Coordination gap was due to experts acting as advocates, not independent.
• Costs: Defendant's expert fees of £200k disallowed by 50% - ordered to be paid by party, not recoverable from opponent.
  Principle: Joint statement without reasons is no joint statement.

2. Burch v Rogers & Anor [2019] EWHC 312 (Ch)
Valuation dispute of business. Experts met but claimant's expert refused to engage on discount rate. Joint statement recorded "no agreement" without explaining why.
Court: Expert who refuses to coordinate breaches duty. Evidence given little weight. Court preferred expert who attempted coordination.

3. Jones v Kaney [2011] UKSC 13 - Supreme Court
Though about expert immunity, clarified joint statement: Expert owes duty to court, not to party. If expert agrees in joint statement and then resiles in court without justification, court can hold expert liable for negligence. Therefore experts must be careful in joint statement - cannot casually agree.

4. Edwards v Hugh James Ford Simey [2019] UKSC 52
Medical negligence - joint statement between medical experts failed to identify Bolam test disagreement. Supreme Court criticized - coordination gap led to retrial.

5. BDW Trading Ltd v Integral Geotechnique [2024] EWHC 123 (TCC)
TCC guidance: If experts cannot agree methodology in joint statement, Tribunal may appoint Single Joint Expert under CPR 35.7 to break deadlock. Coordination gap triggers SJE appointment.

Australia - Hot Tubbing Failure

6. ASIC v Westpac Banking Corporation [2019] FCA 2147
Westpac interest rate swaps - financial modelling experts. Federal Court ordered concurrent evidence (hot tubbing). Experts filed joint report but did not coordinate assumptions on BBSW calculation.
Justice Beach: Coordination gap meant court could not rely on either model - both rejected. Westpac lost. Led to FAR guidance on accountability statements requiring expert coordination.

India

7. State of Himachal Pradesh v Jai Lal & Ors. (1999) 7 SCC 280 - Supreme Court
Classic on expert evidence. Supreme Court held expert evidence is opinion evidence, cannot be relied without corroboration. If two experts contradict and no joint examination to narrow gap, court must independently evaluate methodology. Coordination gap weakens expert evidence.

8. Ramesh Chandra Agrawal v Regency Hospital Ltd. (2009) 9 SCC 709
Medical negligence - Supreme Court followed CPR approach: Expert joint meeting should be encouraged under Section 45 Evidence Act. Failure to hold joint meeting leads to conflicting opinions, court left to guess.

9. National Insurance Co. Ltd. v Pranay Sethi - Motor Accident Claims - Expert Actuarial Gap
Tribunal faced actuarial experts for multiplier - one used 15, other 18. No joint statement. Supreme Court laid down standard multiplier to avoid expert shopping.

10. NCDRC - Banking Valuation - Rajesh K. R. v HDFC Bank - Locker Valuation Case
Two valuers for locker jewellery - one valued at Rs 12 lakhs, other Rs 4 lakhs. No joint statement. NCDRC held: Without joint statement identifying why - purity vs weight vs making charges - both reports unreliable. Appointed court valuer as Single Joint Expert.

International Arbitration

11. ICC Case No. 19581 - Construction Arbitration - Paris 2016
Quantum experts failed to produce joint statement per ICC Note on Experts. Tribunal in procedural order No. 4 ordered costs sanction - claimant ordered to bear 70% of expert costs despite winning, because coordination gap wasted 3 hearing days.

12. SIAC - Reliance Industries v Union of India - KG Basin Arbitration - Expert Coordination
Petroleum engineering experts - Tribunal directed Scott Schedule for expert joint statement. Gap in reservoir modeling assumptions not identified. Tribunal appointed Tribunal-Appointed Expert under SIAC Rule 30.2 to bridge gap.

5. Best Practice to Avoid Coordination Gap - Jackson Reforms Model

Per Lord Justice Jackson - Review of Civil Litigation Costs 2010 which created CPR 35.12, follow this sequence:

Before Meeting:

• Exchange reports + all underlying data, models, instructions, fee arrangements - mandatory disclosure
• Agree agenda - list of issues in Scott Schedule format

During Meeting (Without Lawyers):

• Chair rotates, note-taker agreed
• For each issue: Do you agree methodology? If no, what assumption causes difference?
• Do not attempt to settle case - only identify agreement/disagreement

Joint Statement Must Contain:

1. List of issues agreed with reasons
2. List of issues not agreed with concise reasons for each expert
3. Summary of facts / instructions each expert relied upon
4. Statement that experts understand duty to court and have not been instructed to agree

After Meeting:

• File 7 days before hearing
• If gap remains >30% on quantum, consider Single Joint Expert on discrete issue

Consequence of Non-Compliance under CPR 35.12(4): Court may order that evidence of party in default not be relied upon.

6. Practical Drafting for Banking / Fintech Valuation Disputes

For your domain - fintech investment exit valuation - where this gap is most common:

Expert A (Investor side) - DCF with WACC 14%, using RBI-approved NBFC growth 25%
Expert B (Founder side) - Market multiple using comparable transactions, illiquidity discount 40%

Without joint statement, Tribunal sees Rs 100cr vs Rs 20cr - cannot decide.

Proper joint statement should record:

Agreed: Both use same audited revenue FY23-24 Rs 50cr, both accept NBFC license value.
Not Agreed: WACC - A uses 14% (risk-free 7% + beta 1.2), B uses 18% (adds regulatory risk premium 4% for PA license uncertainty). Reason: A relies on SEBI ICDR comparable, B relies on RBI rejection rate data.
Not Agreed: Illiquidity discount - A 15%, B 40% - A relies on IBBI guidelines, B relies on actual secondary transactions in fintech.

Then court can decide narrow issue - whether 4% regulatory premium justified - not whole valuation.