Judicial principles and studies
Effect of Expert Report Disagreement on Fee Assessment and Winner Status
Summary showing that differing expert awards do not negate the plaintiff's status as prevailing party for fee purposes, and addressing the permissibility of appointing an expert outside the registered list when parties do not object.
Compensation and insurance
Judicial principles and studies
Updated: 10 September 2026
Editorial summary of a judicial principle or decision; consult the source below and do not treat the firm as the author of the decision.
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Summary showing that differing expert awards do not negate the plaintiff's status as prevailing party for fee purposes, and addressing the permissibility of appointing an expert outside the registered list when parties do not object.
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Subject
A concise review of how fees, expenses and attorneys' fees are determined in compensation cases depending on expert evidence, and how disagreements between experts and the appointment of experts outside the registered list affect prevailing-party status.
Summary
- When a claim's value cannot be pre-estimated and is determined by the outcome through expert assessment, the plaintiff is regarded as the prevailing party for fee purposes even if the final awarded compensation differs from the lower-court figure due to differing expert estimates. - The so-called ‘‘substantial difference’’ argument between expert reports cannot be invoked where differences stem from the distinct compensation elements each expert relied upon. - Parties may validly agree, expressly or implicitly (by failing to object), to appoint an expert who is not listed in the register; appointing such an expert is not unlawful if no timely objection is raised by the agents when the court nominates an out-of-list expert.
Practical significance
- Courts should award the plaintiff the full fees and expenses incurred, plus attorneys’ fees for both stages of litigation, even when expert estimates differ between instances. - Parties opposing an out-of-list expert must object clearly and promptly; silence can be treated as implied consent to the appointment. - Large numerical discrepancies between expert reports do not, by themselves, negate a party’s entitlement as the prevailing party unless the objection targets the underlying bases of estimation. This is a general educational summary and not a judicial text or legal advice.
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Subject?
A concise review of how fees, expenses and attorneys' fees are determined in compensation cases depending on expert evidence, and how disagreements between experts and the appointment of experts outside the registered list affect prevailing-party status.
Summary?
- When a claim's value cannot be pre-estimated and is determined by the outcome through expert assessment, the plaintiff is regarded as the prevailing party for fee purposes even if the final awarded compensation differs from the lower-court figure due to differing expert estimates. - The so-called ‘‘substantial difference’’ argument between expert reports cannot be invoked where differences stem from the distinct compensation elements each expert relied upon. - Parties may validly agree, expressly or implicitly (by failing to object), to appoint an expert who is not listed in the register; appointing such an expert is not unlawful if no timely objection is raised by the agents when the court nominates an out-of-list expert.
Practical significance?
- Courts should award the plaintiff the full fees and expenses incurred, plus attorneys’ fees for both stages of litigation, even when expert estimates differ between instances. - Parties opposing an out-of-list expert must object clearly and promptly; silence can be treated as implied consent to the appointment. - Large numerical discrepancies between expert reports do not, by themselves, negate a party’s entitlement as the prevailing party unless the objection targets the underlying bases of estimation. This is a general educational summary and not a judicial text or legal advice.
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Commercial and civil litigation
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