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by Sean Moran

I am a chemical (aka process) engineer, specializing in water and environmental engineering. In recent years a growing part of my professional practice has been as an expert witness in commercial disputes arising from problems with process plants, most of which originate in the design process.

I recently started musing about what it takes to be an expert witness – from which I started musing on what it means to be a professional. Many groups and individuals use the term “professional” with little justification. While my source, Webdictionary “Lexico” is broad regarding the adjective (engaged in a specified activity as one's main paid occupation rather than as an amateur - "a professional boxer"), it is more restrictive regarding the noun (a person engaged or qualified in a profession - "professionals such as lawyers and surveyors").

by Chris Breckon, Managing Director, Farnborough Engineering Consultants (FEC).

Summary

Rebar manufacturers have for many years used a combination of two approaches to manufacturing higher-strength bar: one is using a combination of alloys (the “micro-alloying” route) at the steelmaking stage, the other is thermomechanically treating the steel once rolled to achieve similar properties by the Quenched and Self-Tempered bar route.

by Neil Goldsmith & Georgia Crowley

An important inquiry involving an Appeal and three applications at Handforth Dean Retail Park, which were called-in by the Secretary of State, has been concluded. Neil Goldsmith (Senior Director at Lichfields) represented Orbit Investments (Properties) Ltd on the Appeal, which was granted permission. The outcome has interesting implications for those active in town centres and retail development, as sequential and retail impact matters were key in the decision making.

by Dr. Shanthi Paramothayan

BSc MBBS PhD LLM MScMed Ed FHEA FCCP FRCP

Consultant Physician in Respiratory and General Medicine

A University of Manchester academic has become a leading expert of rap music in UK criminal cases.

Dr Eithne Quinn (above) a University of Manchester academic is a leading expert of rap lyrics in UK murder cases.

Practical Considerations by Michael Berrigan, Associate Director, Dubai, HKA INTRODUCTION Most standard form construction contracts contain provisions under which the employer can terminate the contractor’s employment for default. Default of the contractor can arise for several reasons. The events that entitle the employer to terminate should be clearly set out within the contract. Notwithstanding the reasons for termination, quantifying the financial effects and the monies due to, or from, a party can be problematic, which may lead to disputes and the expenditure of additional monies to expedite recovery.1 The purpose of this article is to identify some of the basic principles to consider when quantifying the effects of termination, either as the engineer, the parties to a contract or as a third party (collectively hereinafter referred to as the “Assessor”). Reference is made to the termination provisions of the FIDIC Red Book 2017 (“Red Book”),2 however this article intends to identify principles that can be adopted generally. TERMINATION FOR CONTRACTOR DEFAULT (Sub Clause 15.2) Following termination of the contractor’s employ- ment for default, the employer has a contractual remedy to complete the works and/ or arrange oth- ers to do so. The employer may use any goods (which may include the contractor’s equipment, materials, plant and temporary works) and the contractor’s documents to complete the works. The contractor is required to comply with any reasonable instruction from the employer, for the assignment of any sub- contract; and for the protection of life or property, for the safety of the works. Any employer supplied materials and/or equipment should be made avail- able to the employer, if provided to the contractor. The employer may suspend payment until any ad- ditional costs, losses or damages that flow from the termination, are ascertained. VALUATION AFTER TERMINATION (Sub Clause 15.3) It is of upmost importance that a valuation of the works is carried out at the date of termination (“DOT”). The valuation shall form the basis of calculating any monies owed to, or from, the contractor and will inevitably form the basis of determining the balance scope of works to be completed. Sub-Clause 15.3 prima facie appears to be self- explanatory in this respect, however in practical terms it raises a few commercial considerations for the Assessor: ”the Engineer under Sub-Clause 3.7…shall proceed to agree or determine the value of the Permanent Works, Goods and Contractor’s Documents and other sums due to the Contractor for work executed in accordance with the Contract…”. Sub-Clause 3.7 encourages the parties to consult in order to agree the valuation. As part of the consultation process, the parties may jointly or independently employ the expertise of quantity surveyors3 to undertake or assist in preparing the valuation. If the parties are unable to agree the valuation, the engineer must issue a determination within the prescribed time limits. Undertaking the valuation It is important to recognise that the valuation is to be a gross valuation in accordance with the terms of the contract. The valuation may be calculated as the ag-gregate of items ‘a)’ to ‘c)’ below, less the actual monies paid to the contractor, including a provision for any outstanding monies to be recovered for advance payments as follows: a) Permanent Works and Variations; b) plus, Materials/Plant on site or delivered to the engineer; c) plus, Claims; and d) less, monies paid to the contractor and any balance of advance payment(s) owing to the employer. The process of preparing a valuation of the Permanent Works and Variations, should be one based on factual evidence, as far as reasonably possible. It is essential that the Assessor and/or the parties visit the site as soon as the termination becomes effective, in order to sufficiently record the as-built status of the works4. Valuation can be more difficult under lump sum contracts, typically when elements of the works are partially complete and the contract does not include a mechanism for valuation, for example, the absence of a schedule of rates or a bill of quantities.5 Some standard form contracts contain provisions which allow for a valuation to be based on a reasonable amount. Consideration may need to be given to the valuation of Permanent Works that are considered defective. The Red Book states that the valuation “shall not include the value of any Permanent Works to the extent that they do not comply with the Contract.”6 In practice however, if it is the employer’s intention to suspend payment to the contractor until any additional costs are ascertained, it may be practical to include the full value of the Permanent Works and set-off any costs for remedying defects once established.7 The valuation of Preliminaries may be more subjective. Consideration should be given to the valuation of fixed lump sum items.8 For example, it may be that the contract price includes a lump sum for design. The Assessor may need to review the scope of the contractor’s design and make a valuation, taking into consideration the progress of the design and the production of deliverables at the DOT. A simple pro- rata of the allowance(s) contained within the contract price may not generate an accurate valuation. Further consideration may also need to be given in in- stances where the contractor has caused critical delay to the project. It may be necessary to abate the valuation of preliminaries to reflect the same period of delay caused by the contractor. The valuation should also recognise the value of any Materials and/or Plant intended to form part of the works, either on or off site. There are several legal issues to consider in this context such as ownership, possession and retention of title. The first step is always to check the terms of the contract. Most con- tracts provide that title passes when (i) they are delivered to site; or (ii) when the value of goods have been included within an interim payment. Under the provisions of the Red Book, the contractor must de- liver to the engineer, any materials and/or plant required by the employer at the DOT. These may be goods ordered, but not yet delivered to the site. It may require a reasonable period to pass to allow for such items to be delivered to the engineer. Nevertheless, the valuation should include all the items in the possession of the engineer and on site. The con- tract may identify the value for each item, in the absence of this, it is unclear how the Assessor is to value the goods. One approach may be to value the goods on a cost-plus basis, inclusive of all reasonably incurred costs such as mobilisation. The contractor should present satisfactory records for such goods, including purchase orders, receipts, proof of ship- ping costs etc.9 The value of all Claims determined by the engineer up to the DOT, should also be included within the gross valuation. Deducted from the gross valuation should be the monies already paid to the contractor and the amount, if any, not yet recovered from any advance payment made by the employer to the contractor. The calculation will determine the amount owed to or from the contractor under Sub-Clause 15.3. PAYMENT AFTER TERMINATION (Sub Clause 15.4) The employer may withhold the payment of any monies owed to the contractor as agreed or deter- mined under Sub-Clause 15.3, until all the costs,losses or damages, associated with the completion of the works have been established. The employer may be entitled to set-off the following from the monies owed to the contractor: 1) Additional costs of executing the works; 2) Other costs reasonably incurred including the employer’s losses and/or damages; and 3) Delay damages. Additional costs of executing the works After termination of the contractor (“Contractor A”), the employer may choose to appoint a replacement contractor (“Contractor B”), to complete the works. Ideally, the tender for the completion works should be competitive, inclusive of free issue material and/or plant left on site or in the possession of the engineer at the DOT. Provisions may also be made for the use of Contractor A’s equipment and/or temporary works if retained by the employer. It is important to remember that the employer is only entitled to recover the extra over costs of completing the works. When re-tendering the completion works, it is highly unlikely that the final scope of the works can be determined, and inevitably there may be further variations to be issued up to completion. To calculate the extra over costs, it is important that the Assessor recognises that the final account for Contractor A is still ongoing and should be com- pared to the final account of Contractor B for the same works at completion. For example, under the terms of the Red Book, the contract price may be subject to adjustments, including changes to items and/or quantities.10 The Assessor should prepare a final account for both contractor’s up to the completion of the works, referred to by the RICS as a notional final account.11 Any additional costs incurred as a result of completing the works with Contractor B can be set-off from any monies due to Contractor A under Sub-Clause 15.3. Difficulties may arise when valuing variations for works that are dissimilar to the works contained within Contractor A’s contract. In such instances, it may be reasonable to value the varied works taking into account all of the information contained within Contractor A’s contract, as far as reasonably possible, for example, labour constants, labour rates, rates for overheads and profit etc. and apply that information to current market rates and prices for the varied works. All other costs reasonably incurred and the employer’s losses & damages Most certainly the employer will incur further costs, losses and damages in connection with the completion of the works. A general list of items that the employer may be entitled to set-off from Contractor A are set out below: 1) The cost of making good defects to Contractor A’s works – The completion contract should distinguish between the completion works and making good of defects. If the full value of the defects is to be claimed in the employer’s set-off, then the valuation for Contractor A at termination must include the full value of the same items of work, as if they were in accordance with the contract. 2) Interim costs such as making the site safe, additional insurances, the employment of security and the removal of redundant items. 3) Costs of procuring the completion works, quantity surveyor’s fees, additional in-house resource, surveys and the employment of other third parties. 4) Any legal fees incurred as a result of termination, for example the drawing up of new contracts for the completion works and the assignment and novation of materials suppliers and sub-contractors etc. This list is not exhaustive and depends on the rele- vant contract in use and the applicable law. Items available in one jurisdiction may be considered too remote in other jurisdictions. There are also items which may be caught by the term consequential losses, and a contract may exclude recovery of such items,12 these may include loss of profit, loss of rent, interest/financial charges etc. Delay damages The employer may be entitled to set-off delay damages related to the late completion of the works. The basis on which the damages are calculated will depend upon the wording of the contract. 13 One issue to be considered is whether a delay dam- ages clause can be applied up to and beyond the DOT. The issue was recently considered by the Court of Appeal in Triple Point Technology Inc (“TPT”) v PTT Public Company Ltd (“PTT”) [2019] EWCA civ 230. In this case, TPT was liable to pay delay damages ‘up to the date PTT accepts such work’. The project had 3 mile- stones; stages 1 and 2 were successfully handed over by TPT, however PTT terminated the contract prior to the completion of stage 3. At this point in time the project was in delay. One of the issues raised in court was whether PTT was entitled to rely upon the delay damages clause, and, if so, whether the delay damages accrued up to the DOT, or beyond. It was found that PTT was en- titled to rely upon the clause, calculated up to the date of completion for stages 1 and 2. However, for stage 3 the clause was found to be inapplicable. The contract stated that delay damages were to be applied ‘up to the date PTT accepts such work’, and therefore the clause could only apply to complete stages of work at the DOT. For incomplete works, PTT was entitled to recover damages at large, up to the date that the works were complete, subject to the necessary burden of proof. Although the Courts stressed that the outcome in each case would depend on the exact wording used, it also doubted recent cases which have held that pre- determined delay damages continue post-termina- tion, until the works are completed by the employer or the replacement contractor. 14 Reasonableness of additional costs, losses and damages The employer may only set-off additional costs, losses or damages, reasonably incurred as a result of the termination. Whether costs incurred are reasonable involves detailed enquiries such as whether the procurement process was appropriate for the works procured, or whether the contract terms were rea- sonable. Disputes can arise in relation to the reasonableness of the rates and prices procured for Contractor B, which are often more than Contractor A’s. It is important to consider a few issues in this respect. It’s not necessarily correct to compare the tender for the original works with the tender for the completion works because, for example, Contractor A may have underestimated the project. Further, a reasonable price at any point in time will, to a large extent, be dictated by market forces, and, given that the ten- der for the completion works will inevitably be carried out later than the original works, varied market conditions may prevail. Issues may also arise if the employer procures Contractor B and its tender is not the most competitive. Whether a price is reasonable is a different consideration from whether a price is the lowest price possible. It is important to keep in mind that a reasonable price requires to be appropriate and fair in the circumstances. A price that is so low, that it is insufficient to carry out the works to the required quality and within the required timescales, may not be a reasonable price. Other factors such as the inefficient nature of the works, or the complexities which arise in completing works commenced by another party, should also be considered. SUMMARY This article sets out a small sample of the issues which may need to be considered when quantifying the financial effects of termination. Parties are encouraged to be mindful of the termination provisions contained within their contracts. Quite often, parties fail to recognise the termination provisions, and therefore, incorrectly value any further payment in accordance with the terms of the contractual payment mechanism. These terms tend to differ somewhat to the party’s entitlements under the termination provisions. References 1, Through a formal dispute resolution process. 2, FIDIC Red Book 2017, assuming that termination is lawful and the Contract survives termination. 3, Or any other type of surveyor / consultant that may assist in agreeing the as-built status of the works. 4, Records may include; photographic / video evidence, witness statements, marked up drawings, surveys and the like. 5, The parties are encouraged to give due consideration to similar matters at contract formation. 6, FIDIC Red Book, Clause 15.3, Valuation after Termi- nation for Contractor’s Default. 7, Set-off made in accordance with Sub-Clause 15.4 8, Fixed priced preliminaries are items which are independent of duration. 9, Sub-Clause 14.5, Plant and Materials intended for the Works. 10, FIDIC Red Book 2017, Sub-Clause 14.1, Contract Price. 11, For further guidance, refer to the RICS Professional Guidance, UK ‘Termination of Contract, Corporate Recovery and Insolvency’. 12, FIDIC Red Book 2017 addresses consequential losses at Sub-Clause 1.15, Limitation of Liability. Such clauses are also commonly referred to as ‘Consequential loss exclusion clauses.’ 13, Triple Point Technology, Inc v PTT Public Company Ltd [2019] EWCA Civ 230. 14, Hogan Lovells, Talking Point: Construction and Engineering, May 2019, ‘Where work is never completed, delay liquidated damages may not accrue up to termination.’ HKA is one of the world’s leading providers of consulting, expert and advisory services for the construction and engineering industry. For over four decades we’ve stood alongside our clients as trusted independent advisers, finding solutions amid uncertainty, dispute and overrun. www.hka.com About the Author Michael Berrigan is an Associate Director working in HKA’s Expert Services team in Dubai, UAE. He is a Quantity Surveyor with 17 years’ experience work- ing initially for main contractors in the UK and for the past 6 years working in the dispute resolution sector in the Middle East, Africa and Asia. Michael has been involved in the preparation of claims and has assisted quantum experts in the preparation of expert reports for matters in dispute adjudication boards and arbitration. Michael has worked on a wide range of international projects in- cluding high-rise buildings, infrastructure works, air- ports, power stations and oil and gas facilities. Michael holds a BSc in Quantity Surveying and Commercial Management from Bolton University, UK and an LLM in Construction Law and Dispute Resolution from Salford University, UK. Michael is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a member of the Chartered Institute of Building (MCIOB), an Associate Member of the Academy of Experts (AMAE) and an Associate Member of the Royal Institution of Chartered Surveyors (ARICS).

by Larry Canary

A little background is needed to place this important topic in proper context. Prior to 1992, Fire & Explosion investigations were more closely aligned with the art of Investigations, rather than actual sci- ence. Investigators relied on what they were taught by those revered in the fire investigation profession or through trial and error. Since 1992, the National Fire Protection Association (NFPA) published a document called NFPA 921 Guide for Fire & Explo- sion Investigations. A complimentary document to NFPA 921 was NFPA 1033, Standard for Professional Qualifications for Fire Investigator. Although both the afore mentioned documents are orchestrated by the United States, they are internationally accepted in many locations and seen as a Best Practice docu- ment. To place a finer point on these documents being internationally accepted, The Institute of Fire Engineering in the UK and the Fire Service College, referenced as recommended reading NFPA 921 and 1033 as part of their Level 5 Award in Fire Investi- gation, dated 10 August 2017. Level 5 Award in Fire Investigations, a more advanced version from Level 2, was designed for fire officers, scenes of crimes officers and others involved in investigating and reporting on incidents involving fires.

by Dr Thomas Walford BSc PhD C Eng MIMechE MIET MEWI MAE CDipAF & Director of Expert Evidence International Limited and Expert Evidence Limited.Governor/Director of Expert Witness Institute. Founding Committee Member of EWI Singapore. I have been invited to write an article for this inter- national magazine as a court expert witness with experience working in many of the world’s international courts. I thought it might be useful to readers to have a personal account of my working life in the first quarter of 2019 to give an idea of what one might expect from the role. In the narrative below, minor details have been changed to preserve confidentiality. I practise as an expert witness in banking and financial matters, having spent the majority of my working life in this field, initially in junior positions and later achieving promotions, which led to my having a very wide range of experiences, subsequently in relatively senior roles. I started in venture capital (now gener- ally referred to as private equity, although we rarely used that term in the 1980s) and then became a front line equity manager, running portfolios contained within unit and investment trusts. There was never a dull moment, including major events such as the crash of 1987 and equally “big bang”, the new system which removed the rules keeping jobbers, brokers and banks separate and abolished fixed commission charges. There have been further changes since these years. More recently, I ended up running the private client investment divisions of subsidiaries of banks, providing advice and management of portfolios for individuals, trusts and investment companies both onshore and offshore, depending on the avail- able circumstances. As you can imagine, and particularly during the years 1987, 1990, 1998, 2000-2003 and 2008, when the stock market had serious wobbles, there were many instances when client portfolios did not live up to their expectations and this led to complaints. As a senior director of the department, it was left to me to deal with the clients and seek to ensure they under- stood the risk/return balance which a portfolio manager might be expected to achieve At the same time, over this period, the whole regulatory framework imposed on the financial industry was developed and implemented and modern day regulation, as we now know it, came into being. As a result, by 2009, I had a very broad experience of many different banking principles and also of dealing with disputes between financial institutions and their clients. It was, therefore, a natural consequence of this that I set up Expert Evidence to provide advice and information to the legal profession and ensure that courts had the right input so that cases could be decided from a position of knowledge. Amazingly, there is not a great deal of competition in this area. The role of the financial expert witness in the courts has become all the more important due to the increasing complexity of financial instruments over this period. The idea of a synthetic derivative or a collateralised mortgage obligation as a security was relatively unheard of in the 1980s outside the world of city dealers. In the 2000s, many private clients, particularly the wealthier ones, were sold Structured Products, many of which were not fully understood. Litigation is not the only means of resolving a dispute: parties can seek to resolve disputes through mediation and arbitration, so these too became essential additional facilities which are offered by the Expert Evidence service. Both can provide quicker, less adversarial environments for dispute resolution The shocks of 2008 were enormous in the financial markets and they initiated a whole change in regulatory approach and the kind of service that clients would accept. The crash also initiated a whole new series of disputes, many people having lost substantial amounts of capital and few understanding what had really gone wrong. Overlay this with additional problems, like the Madoff saga, and losses expanded. Such were the liquidity issues after this, national governments were forced to enter a period of quantitative easing and low interest rates which then produced their own problems. Interest rates remained low for 10 years, which then led to the Interest Rate Hedging Product problems for many commercial companies, which had sought to protect themselves from interest rate rises. The stage was set for many disputes. The world works on very similar financial systems and, although each country or region has its own currency, the banking principles remain largely similar. Many of the major banks are highly international and hence operate in many different jurisdictions. In some cases, clients sought to protect their wealth from authoritarian regimes and so would invest part of their wealth abroad. Others sought to mitigate their tax obligations and therefore frequently chose to in- vest through low tax jurisdictions. Many of the world’s largest banks are truly global and so have subsidiaries in many countries. Finally, one of the most common investment principles is to look for diversification to mitigate risk and, consequently, clients are often persuaded to invest in many different industrial areas. All these factors combined led to the elements causing international disputes. Finance is not the only discipline to be widely inter- national. Shipping and maritime trade have the same elements and potential for problems to arise where there are losses. Disputes arising from maritime inci- dents can also occur in any part of the world and as a result the disputes need to be heard on an international basis. Medicine is very similar the world over and hence medical principles are similar throughout. Experts in medicine in one country can well apply elsewhere and countries’ borders provide no limit to the application of medical principles. Gravity is also, obviously, universal, hence engineering principles re- main the same. A bridge in one part of the world will usually also remain in place elsewhere, hurricanes and earthquakes excepted. Lastly, international expertise can also be preferable when the available pool of experts is very small and all the experts in one country know each other and have trained together. In such a situation, the requirement for an expert who can be independent, impartial and completely removed from the litigation parties is best achieved by using an expert from another country. All the above principles came together for me and Ex- pert Evidence in the first few months of 2019. I have previously given evidence in trials in England, Ire- land, the UAE (DIFC), the US, the Caribbean and Singapore, so am quite familiar with the different rules and ways of running cases. At the start of 2019, I had been working on three cases which were due to be scheduled for trial in February and March. The first was in Singapore from 19th February and was due to last until 1st March. Then I was due to be avail- able for a court in Nassau, Bahamas on Tuesday 5th March, which was due to last that week closing on 8th, following that, I was due in the Southern District of New York for a jury-decided civil trial from 11th to 15th March. It took quite a challenging itinerary to get from Singapore to Nassau over the space of a weekend, involving flying to Hong Kong, Los Angeles and Miami where I had an overnight night stop before finally reaching the Bahamas. The trial in Singapore, to be heard in the Singapore International Commercial Court (‘SICC’) started on time and in the main Supreme Court building, just behind the National Gallery of Singapore. The building is fantastic, having a marble-faced exterior and a large central atrium with the main courts off both sides and escalators serving each floor. Security is tight with everyone needing to go through airport style checks whenever they enter the building. We had been working on the case since October 2016. I had completed an expert’s report in December 2018, which had been submitted to the court and I then received the report that had been written by the expert appointed by the other side. A number of issues had come up on which we did not agree, and we therefore scheduled an experts’ meeting in London in late January 2019 to discuss this and were then instructed by the court to produce a joint statement. This was completed in early February. The discussions at an experts’ meeting for the English Courts are always conducted under Civil Procedure Rules 35 (those that apply in the England and Wales), although this case was to be heard in the Singapore Courts and under Singapore Litigation rules. In Singapore the applicable rules are those contained in the Rules for the Court 40A and the SICC has its own set of rules contained in part XIII of the SICC Practice Directions. I sat in court each day making notes on the evidence and cross-examination and there were really very few surprises. The story, as told by the main plaintiffs, was in line with the witness statements that they had pre- viously provided. However, this was still a very productive time in that it made sure I was fully familiar with the facts of the case and all the evidence avail- able. Following the cross-examination of the two plaintiffs, the focus of the court turned to the bank and the appropriate executives who had provided the advice and service to the clients. The case was complex in that it involved financial institutions in Singapore, Dubai, Bermuda, the UK and Germany. The judge made a particular effort to ensure that the trial kept to the timetable and would not overrun the two week window reserved for it. He achieved this most satisfactorily while at the same time allowing for the attorneys to probe those areas that they wished to. My turn in the witness box came up on the afternoon of the eighth day. By this stage I was living and breathing the case and had all the facts and references at my fingertips. As much as one feels nervous about giving evidence, it is also a chance to show knowledge about not only the facts of the case but also the gen- eral principles and processes applied within banks to provide a service to their customers. In this case, an investment portfolio had purchased a life policy through a loan and the interest payments had be- come too expensive to afford. As a result, the loans had been recovered by the bank and the investments and policy sold to provide the liquidity. This had caused severe losses to the clients. My time in the witness box was almost over before I really even knew it. It was not too difficult to answer the questions and I felt I had dealt completely with each point that counsel wanted to investigate. I was stood down long before I expected to be and re- turned to the back of the court to watch the cross-ex- amination of the other expert. When that had finished the evidence part of the trial closed. The final day was taken up with the judge providing instructions to the counsel so that they could prepare their closing statements. This dealt with many of the legal aspects of the situation and the duties of finan- cial institutions and the ways that contract law applied to this case. I then left Singapore, arriving in Nassau on 4th March. I found that the trial there had been delayed until later in the year but I went anyway to meet up with the lawyers as planned followed by a case management hearing in court. This left me with three days to kill before I was due in New York at the weekend for the trial there. The Nassau case had been on my books since November 2014 – some 4 ½ years earlier. It would now take 5 years to come to trial. We had completed the expert’s reports in December 2017 and, at the re- quest of the lawyers, had held an experts’ meeting in February 2019, just before I left for the Singapore trial. It had been found that the two experts had received different evidence and, in particular, different valuations of the same portfolio. It was considered prudent to ensure that we were both working from the same hymn sheet and so we carried out an analysis of the differences and what were the correct valuations which we could agree between ourselves. This caused some delay and the experts’ joint statement was eventually completed in June 2019. On leaving Nassau, I had to deal with the New York trial, which had already started, and where I was ex- pected to be giving evidence. I flew up there on the Saturday and met with the lawyers on the Sunday to run through what had been happening in the trial so far and to prepare myself for the facts of the case. I had expected to give evidence on the Tuesday and so prepared for this. Tuesday came and went and I was not called and the Judge was unable to sit on Wednesday, so the next opportunity was Thursday. However, it turned out that the plaintiffs wanted to put on a couple of new witnesses before me, so that blew Thursday out! Consequently my return flight on the Friday was not possible and I had to delay it until the following Wednesday. I waited outside the court for the whole of Monday and was not called. Unlike the trial in Singapore , I had been asked not to sit in the trial until I was called. I eventually went on to the stand on Tuesday after- noon. I was not there long and indeed was released within a couple of hours. The time went by so quickly I don’t think that I was really aware it had all started. It began with my evidence in chief, where the lawyers for the plaintiff (who appointed me) took me through the most important parts of my report and gave the jury the opportunity to appreciate the essential points on which the case was based. This evidence in chief is taken as read, in the English civil courts and so it rarely arises. It was a new experience. After that, the defendant’s attorney got up and asked a number of questions which I think were primarily intended to test my knowledge of the situation and the limits and range of available answers that applied. My back- ground and experience were accepted by both sides as being sufficient to act as an expert in this case which was very pleasing. Finally, the plaintiff ’s lawyer had the opportunity to re-examine me on any points that he felt needed further explanation. None was neces- sary. After that I was stood down and was able to relax a bit and listen to the rest of the trial from the public gallery. I have been extremely lucky to have had an opportunity to advise courts in exciting parts of the world. As I stated earlier, finance is an international activity and the principles are not very different in other countries, nor are the nature and issues involved in the disputes. London remains a primary pivot point in litigation and dispute resolution as well as a source of substantial knowledge, with strong rules about fair dealing and legal knowledge. This has meant that, as a British expert, you are globally respected. I have much enjoyed the opportunity this has provided me. I hope and trust that we can maintain this position in the eyes of the world. All the above cases which I have been involved in have many interesting and critical points that the courts need to understand and I hope that my contribution has assisted in that endeavour. The correct ultimate decision, in my opinion, is really only possible if the judge and/or jury is in receipt of all the facts and understands how they should be interpreted in the financial world. Inevitably, there is considerable waiting involved be- fore an appearance in a dynamic court situation, where the progress of the case is inevitably largely determined by the speed of the previous witnesses’ evi- dence. New arguments come up and additional points on which the case may turn. This requires enormous flexibility on the part of all participants, including the experts who are being called to give evidence. There are frequent situations where an expert is called to account for their views and he/she needs to be able to defend them under cross-examination. Being a good expert in open court is a necessity. The adversarial system is very good at ensuring the evidence is critically examined and I always welcome the chance to show my knowledge. Poor or shallow experts are often ultimately exposed, which has to be a good thing for the profession in the long run. Lastly, I would come to the rules under which an ex- pert operates. Every legal jurisdiction has a set of rules or principles (either written or understood). In some countries there are different sets of rules for dif- ferent courts and in the criminal and civil systems. It is absolutely necessary that an expert is familiar with these rules wherever they are called on to assist a court. In some parts of the world, judges may have their own additional rules for experts who appear in front of them in their courts. Failure to observe these rules can lead to the evidence being excluded and it will normally be for an expert’s instructing lawyers to ensure you know what the rules are and that you have kept to them in the period up to trial. Once you are in the witness box, you are on your own and then knowledge of the rules is necessary to ensure you stay within the requirements. Although they may be different in each legal jurisdiction, they have the same basic principles, requiring the expert to be impartial, independent and have a duty to the court. We are also lucky in that the English legal system often uses a set of principles referred to as the Ikarian Reefer rules after a judgement by Sir Peter Cresswell in 1993 in a case concerning a ship. The detail of the case has been lost in history, as it not really relevant, but the duty of the expert to the court has been enshrined in his judgement ever since. He said in the judgement that Experts “should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.” I wish you all luck and every success in developing your own international expert business.

Hot-tubbing’, or concurrent expert evidence, has been used for the first time in a Scottish civil court case. Is the experience likely to be repeated? Katherine Doran reports At the end of 2016, Lord Woolman issued his decision in SSE Generation Ltd v Hochtief Solutions AG (2016) CSOH 177. The case concerned liability for the collapse of part of a water-bearing tunnel at Glendoe hydroelectric station in Fort Augustus. This was one of the longest and most technically complex cases to come before the Scottish courts in recent years. The court sat for 91 days; 73,000 documents were lodged, including 37 expert reports and 91 witness statements. Of those, 19 experts gave evidence at proof, and 46 witnesses of fact. The court was faced with the challenge of hearing and comprehending technically difficult expert evidence on matters such as structural geology, rock mechanics and tunnel engineering. The case was the first in the Court of Session to use “hot-tubbing” to hear expert evidence. Hot-tubbing, or concurrent evidence, is a process whereby expert witnesses of the same or similar disciplines give their evidence at the same time in a structural discussion, with the judge acting as chairperson. Concurrent expert evidence is already a feature of civil litigation in England, with a suggested procedure set out in Practice Direction 35, supplementing the Civil Procedure Rules, Part 35. It is also commonly used in arbitration and other forms of ADR. So what does it entail? Views from experience The procedure adopted by Lord Woolman mirrored that set down in Practice Direction 35. His Lordship was also guided by video demonstrations from the Judicial Committee of the New South Wales Commission. It was essentially this: • Counsel for the parties agreed in advance a list of suggested topics to be discussed during the concurrent evidence session. • Lord Woolman initiated the discussion between the expert witnesses by asking one of them to set out his position on a particular issue, then inviting the others to participate in the discussion, questioning one another as appropriate. • Counsel were invited to ask follow-up questions. A 2016 report by the Civil Justice Council on hot-tub- bing (online at bit.ly/2oQRGGC), found the procedure is well liked by judges and practitioners alike. This view was echoed by Lord Woolman in his judgment at para 258: “I found it an extremely valuable exercise and one which I would repeat in suitable future cases. Instead of hearing complex testimony weeks apart, I was able to hear the different opinions at one and the same time. They were also able to challenge one another’s position. This brought the topics into sharp focus. Each expert had to crystallise his position.” When considering the CJC’s report, the English Civil Procedure Rule Committee expressed some caution over the use of hot-tubbing. It noted that hot-tubbing required significant work and time, and early buy-in of all concerned. It was also felt that if hot-tubbing is used, there must be adequate safeguards in place to ensure fairness of the proceedings. This was achieved in SSE v Hochtief by using hot- tubbing in addition to, and not instead of cross- examination, so both parties had sufficient opportunity to test the experts’ evidence. By hearing evidence concurrently, it was possible to focus the key issues and garner the respective positions of the experts on those issues. Conditions for success There are two major factors that will determine the success of hot-tubbing: • Is the case suitable? Lord Woolman commented that the process was most useful where there was anarrow technical dispute – less so where there was little common ground between the parties or the level of detail was too great. • Does the process have the support of all involved? Litigants will need to be comfortable with novel approaches to taking evidence. Expert witnesses need to understand the process and be confident asking and answering questions of one another. Solicitors and advocates will have to agree a procedure up front, and possibly an agenda of topics to be dis- cussed. And finally, judges need to be fully engaged with the case in order to formulate suitable questions and chair a productive discussion. Provided these criteria are met, there is no reason why hot-tubbing should not be used more widely. The opportunity for experts to discuss and question one another is a useful addition to the examination process. This interactive process is likely to crystallise positions, and highlight areas of agreement or divergence of expert opinion. Ideally, this will lead to more measured and reasonable positions being advanced, and ease the decision-making process. Katherine Doran is a senior associate with Holman Fenwick Willan LLP, London, who acted for Hochtief in this litigation Reproduced by kind permission of The Law Society of Scotland www.lawscot.org.uk/members/expert-witness-directory/

by Martin Burns In August 2019, 46 nations, including China and the USA, gathered in Singapore to sign the United Na- tions Convention on International Settlement Agreements Resulting from Mediation. Known more simply as the “Singapore Mediation Convention, it represents an international dispute resolution frame- work, which improves cross-border enforceability of settlement agreements. It provides businesses with certainty and guarantees that have previously been absent in relation to mediated outcomes of disputes. Enforcement of mediated agreements of cross- border disputes is often complicated. The parties may agree to court proceedings in one jurisdiction, but the court's judgment may then need to be enforced in another jurisdiction where the other party’s assets are located. This can involve significant time and costs and prevent a party from receiving monies, or other remedies, that were agreed at the mediation. These potential enforcement issues can easily dampen any enthusiasm the parties had to engage in mediation in the first place. Another thing that can discourage mediation is when parties approach mediation as if it were a “one size fits all” process, and not something that can be easily engineered and deployed to meet the needs and priorities of different sizes and types of businesses. The Singapore Mediation Convention represents a hugely positive step forward for the promotion of mediation of cross-border commercial disputes. And while many commentators have naturally focussed on the fact that the Convention permits quicker and simpler enforcement of settlement agreements, it is the description of what mediation is in Article 2 of the Convention that may do most to encourage parties to use it to resolve their disputes. For many lawyers and other professionals, who regularly use litigation, arbitration and other dispute resolution procedures, the temptation is find a reliable methodology that they understand and stick with it. Some arbitrators and adjudicators will follow the same path, regardless of whether a dispute before them is about a few thousand dollars or many mil- lions, or whether the issues at the heart of a dispute are enormously complex or straightforward I know of a few timeworn arbitrators and adjudicators who have used the same letter templates and directions in every case they have dealt with for decades. It seems they must follow a familiar and well-worn path regardless of the relative complexity and/or value of the dispute they are dealing with. The path they fol- low can often be painstaking and detailed. This may be fine when a dispute is multi-faceted and involves enormous sums of money, but the problem is that these arbitrators and adjudicators can give no consideration to adapting their approach where disputes are about simple clear-cut matters. They will apply the same procedure and take just as long to resolve a simple dispute as they would a complex multi-issue dispute. And it is the parties who generally have to pay for it in time, money and resources. Article 2(3) of the Singapore Mediation Convention defines mediation as a method for resolving disputes whereby they endeavour "to reach amicable settle- ment of their dispute with the assistance of a third person or persons ('the mediator'). The difference be- tween a mediator and a judge, arbitrator or adjudicator is that a mediator lacks “the authority to impose a solution upon the parties". As long as any settlement that a party wishes to en- force falls within this definition, the Singapore Convention applies, even if the process is not actually called a "mediation". Furthermore, there is no need for a mediation be formally supervised by a media- tion institution or conducted by a government and/or institutionally approved mediator. The Convention thus provides a deliberately non-prescriptive definition of mediation. It is this in-built flexibility that makes the Convention meaningful and will thus make mediation an attractive proposition for businesses. For some years, UK commercial operations have been adapting mediation techniques to accommodate their, and their clients’, business priorities and idiosyncrasies. Transport for London (TfL), which is responsible for, amongst other things, running the London Under- ground system, engages many 100s of suppliers on contracts ranging from simple maintenance works to full scale refurbishment of lines and stations. Given the vast array of works and numbers of contracts involved, the potential for disputes between TfL and suppliers has, historically, been enormous. In recent years, however, TfL and contractors have embraced a dispute resolution procedure, known as CAP, which applies mediation techniques, though no one concerned with it actually refers to it as mediation. The procedure involves parties endeavouring to reach amicable settlement of disputes with the assistance of independent third-parties, who are subject matter experts appointed through the Royal Institution of Chartered Surveyors (RICS), who cannot impose settlement. Over the past 3 years, the CAP procedure has greatly reduced the numbers of disputes and associated costs on TfL contracts. CAP is an innovative form of dispute resolution that particularly lends itself to major infrastructure projects where there are lots of suppliers, and potentially lots of money at stake if they get into disputes It is clear that the Singapore Mediation Convention can, and will, offer considerable support to organisations and businesses based in countries that have signed up to it. It will enable parties to develop and implement cross-border dispute resolution procedures that address their special needs and priorities, rather than having to follow someone else’s procedure. Parties can adapt procedures, like CAP, that are designed to help parties achieve agreed settlements and provide certainty that settlements can be simply and effectively enforced. They can even design their own bespoke mediation process in the confidence that it can achieve, not only agreed outcomes but, final and binding results too. Martin Burns RICS, Head of ADR Research and Development 09 September 2019