1. Legal Framework - CPR 35 (UK) + Indian Equivalent

UK - CPR Part 35 + Practice Direction 35:

• CPR 35.12: Court may direct discussion between experts of like discipline to produce joint statement setting out matters agreed and matters not agreed with reasons.
• Purpose per PD 35 para 9.2: Not to settle cases but to agree and narrow issues and identify: (a) extent of agreement, (b) points of disagreement, (c) action to resolve, (d) further material required.
• Joint statement is experts' document, not lawyers'. - Maps Medical principle: Experts must give own opinions to assist court and do not require authority of parties to sign joint statement.

Indian Equivalent: Order 26 Rule 10A CPC + Sec 45 Indian Evidence Act / Sec 39 BSA - Court may direct experts to meet. Commercial Courts Act 2015 - case management - direction for joint statement common in banking forensic audit vs borrower forensic challenge.

2. What is "Gap"?

Three types:

1. Report-Joint Gap: Expert A report says loss = ₹10 cr due to fraud. Joint statement signed by Expert A says loss cannot be quantified. Gap = ₹10 cr - unexplained retreat.
2. Joint-Joint Gap: Two joint statements in same litigation - first says agreed on methodology, second says methodology disputed.
3. Agenda Gap: Mrs Justice Yip in David John Saunders v Central Manchester University Hospitals NHS Trust [2018] EWHC 343 (QB) highlighted problematic agenda: Joint statement ought to be possible to read it and understand key issues and each expert's position. Sometimes less is more as far as agenda is concerned. Overly lawyer-drafted agenda creates gap.

3. Why Gap Matters - Case Law

A. Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) - Lead Case - Permission Revoked

Senior Master Fontaine withdrew claimants' permission to rely on expert witness because of conduct in relation to preparation of report following joint meeting.

Facts: Claimants' solicitors heavily involved in drafting joint statement, expert changed opinion between individual report and joint statement without explanation.

Held: Contrary to spirit if not letter of CPR Part 35 and PD relating to discussions between experts, there had been serious transgression by claimants' expert. Content of discussions between experts not to be referred at trial and parties not bound by agreement (CPR 35.12(4)(5)), but expert must remain independent.

Principle: If gap created by lawyer influence, permission revoked + wasted costs. BondSolon summary: Legal advisers may assist in identifying issues which statement should address, those legal advisers must not be involved in either negotiating or drafting joint statement.

B. Aderounmu v Colvin [2021] EWHC 2293 - Master Cook - What Goes Wrong

Example of what can go wrong with joint statements following joint discussion. Experts failed to include reasons for disagreement. Practice Direction to Part 35 quite clear: Purpose is not to settle but to agree and narrow issues. Experts must give own opinions.

If joint statement just says "Not agreed" without reasons - it is non-compliant, court may order re-do, costs thrown away.

C. Pickett v Balkind [2022] EWHC 2226 (TCC) - HHJ Paul Matthews - Independence

Reaffirmed TCC Guide para 13.6.3: Whilst parties' legal advisors may assist in identifying issues statement should address, those legal advisors must not be involved in either negotiating or drafting experts' joint statement. Legal advisers should only invite experts to consider amending draft joint statement in exceptional circumstances where serious concerns that court may misunderstand.

Gap created by amendment after lawyer suggestion = suspect.

D. Glover v Fluid Structural Engineers & Others [2024] EWHC 1257 (TCC) - Lawyers Suggesting Amendments

Joins growing list of cases on lawyers suggesting amendments to draft joint statement. Law clearly stated at para 13.6.3 TCC Guide (same as para 10.48 King's Bench Guide 2024): Legal advisers should only invite experts to consider amending draft joint statement in exceptional circumstances.

E. ArchiFACT - Experts' Joint Statements & Privilege - Supersession Doctrine

Experts' reports differed in opinions. Both instructed to jointly inspect on without prejudice basis and endeavour to agree joint statement of matters agreed / not agreed with reasons. Joint statement gave experts' agreed views on alleged building defects. In doing so it superseded individual experts' reports.

Critical: Once joint statement signed, it supersedes earlier reports on points agreed. You cannot rely on old report if joint says agreed otherwise. Gap must be explained.

F. Changing Places - Is Expert's New Opinion in Joint Report Admissible? - Australian UCPR 31.26(4)

Primary Judge erred by over-ruling objection to tender of material in joint experts' reports going beyond matters that were subject of agreement by experts, contrary to UCPR 31.26(4) and thereafter erroneously had regard to such material when making central findings of fact such that process of fact-finding miscarried.

Joint report limited to matters agreed to be discussed. Cannot smuggle new opinion via joint statement.

G. Hing Yip Holdings (Hong Kong) Ltd v Cellmark China Ltd - Court allows expert to sign reports during trial

Second defendant's expert had signed joint experts' report in June 2018 which did contain statement of truth and declaration, but individual reports did not. High Court allowed reliance because joint statement compliance cured defect.

Shows joint statement has independent evidentiary value.

4. Banking Context - How Gap Arises in Financial Fraud

Example: Bank forensic audit (KPMG) says diversion ₹100 cr. Borrower's expert (CA) says diversion nil, accounting error. Joint meeting directed by DRT.

Gap scenarios:

• KPMG in report: Fund diverted to shell companies. In joint statement: Agrees diversion not proved, only circumstantial.
• Borrower's expert in report: No evergreening. In joint statement: Agrees some funds routed back to repay earlier loan.

If gap unexplained, Tribunal will prefer joint statement over individual reports (ArchiFACT doctrine).

RBI fraud classification cases: In State Bank of India v Amit Iron 2026 INSC 323, SC said borrower must get forensic audit report and representation. If bank expert and borrower expert produce joint statement during representation, gap becomes ground for challenging fraud classification.

5. How to Manage Gap - Best Practice

For Lawyers:

1. Do not draft agenda with 50 questions - per Saunders v Central Manchester, sometimes less is more. 5-7 key issues.
2. Never negotiate joint statement - BondSolon: Writing joint statement must maintain independence.
3. If expert wants to change opinion from report to joint, must give reasons in joint statement itself - e.g., "Having considered X document disclosed after report, I now agree..."
4. Preserve privilege - communications between solicitor and expert subject to litigation privilege but experts' reports must contain statement setting out substance of all material instructions (CPR 35.10). Under para 55 Guidance for Instruction, joint statement discussions privileged, not to be referred at trial.

For Experts:

1. Joint statement is last opportunity to set out and explain opinions (Inspire MediLaw) - include reasons for disagreement.
2. Include Expert's Declaration and Statement of Truth or confirm still applying.
3. If cannot agree, state: "Not agreed because Expert A relies on... Expert B relies on..."

If Gap exists:

Apply to court for:

• Order for supplemental report explaining gap
• Permission to cross-examine on gap
• In extreme, exclusion under Andrews v Kronospan

In your outsourcing / banking fraud matter, if KPMG and defence expert produce joint statement with gap on evergreening, you can use Andrews v Kronospan to argue defence expert's permission should be withdrawn if gap created by lawyer influence, or use ArchiFACT supersession to argue joint agreement binds.