by Chris Kirby-Turner, Partner in the Construction & Engineering team at Thomson Snell & Passmore solicitors
Construction disputes are often complex, meaning they often require expert evidence. Readers will undoubtedly know that a profession has evolved dedicated to preparing evidence for tribunals or courts.
Experts are an exception to the rule that witnesses cannot give opinions. Where a tribunal needs to determine complex technical issues, expert evidence is often vital to the parties.
Avoiding common pitfalls
Parties usually pay their own experts, but it should be remembered at all times that their duty is to the tribunal. Experts should be impartial.
But there have been cases over the years in which experts have acted as a ‘hired gun’ for the party paying their fees. The courts take a very dim view of those experts who do not understand or properly execute their role.
In 2013, an expert in a dispute relating to the Liverpool Museums project came under fire for being partisan. It was said he was, “seeking to defend the in defensible for the benefit of [the architect]”.
This year there have been a selection of cases highlighting this point further:
· An expert architect reporting to the Grenfell Tower inquiry was removed from the proceedings. Despite holding himself out as an Architect, he was not registered with the ARB.
· In the case of Merit Merrill v ICI, the Judge referred to a ‘preponderance of partisan experts’. He said: “There are some jurisdictions where partisan expert evidence is the norm… this jurisdiction is not one of them”.
· In a land valuation case, the tribunal took exception to an expert’s employer working on a contingency (no-win no-fee / percentage) basis. They said of the well-known multi-disciplinary practice, “it remains wholly unacceptable for an expert witness, or the practice for which he or she works, to enter into a conditional fee arrangement, without that fact being de clared...”
Experts whose evidence is challenged in this way can be extremely damaging to an otherwise respectable case. Their evidence will lack credibility or may even be inadmissible. Costs will likely be unrecoverable, and considerable management time and money will be wasted.
Getting the most from your expert
In some cases, appointing an expert can be as expensive as appointing the rest of your legal team. This is particularly true when complex technical questions and detailed facts need investigation. Therefore, find ing the right expert is important.
A good lawyer working with an expert, can help maximise the chance of a quick resolution. They will know how to instruct the expert for best results. They will have knowledge of the most reputable experts, and those who are right for your dispute.
Obtaining early expert and legal advice can increase the chances of early dispute resolution. This is especially likely where there are unusual or complex technical questions to be resolved.
An early instruction can avoid the cost of instructing experts to produce court compliant reports. Complying with ‘Part 35’ of the Civil Procedure Rules (the rules that govern court procedures) is crucial. But preparing a full and detailed report can take time. An early appointment can give your legal team the ammunition and preparation time to get a breakthrough in negotiations. Disclosing preliminary expert evidence can be helpful in the run up to mediation.
Taking advice to make sure you get the right expert to consider the right issues at the right time is essential. It will maximise the value of the expert evidence, and ensure you avoid common pitfalls.
A good expert witness can be very helpful, but a bad expert or a poorly instructed one can be extremely damaging to a claim.
Chris Kirby-Turner is a Partner in the Construction & Engineering team at Thomson Snell & Passmore solicitors