A strong expert witness can tip the scales of a claim in your favour but a bad one can do extreme damage, as Chris Kirby-Turner explains.
The technical nature of construction disputes mean they often hinge on expert evidence. A profession has evolved dedicated to preparing and presenting evidence for tribunals or courts.
Expert witnesses are an exception to the rule that witnesses cannot give opinions. Where a tribunal needs to determine complex technical issues of liability or the value of a claim, expert evidence is often vital to success.
Avoiding common pitfalls
Experts are usually paid by either party in the dispute, rather than the tribunal. However, their duty should be to the tribunal and they should be entirely impartial.
There have been cases over the years in which experts have acted as a ‘hired gun’ for the party paying their fees, rather than acting impartially. The courts take a very dim view of experts who do not understand their role or do not execute it properly.
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 indefensible for the benefit of [the architect]”.
There have been several instances of case law this year:
- 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 and referring to a “preponderance of partisan experts”, the judge 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 multi-disciplinary practice involved: “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 declared.”
Working with experts whose evidence is challenged in this way is 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 an expert
Instructing an expert can be an expensive process, particularly when complex technical questions and detailed facts need investigation. When appointing an expert to advise on your dispute, doing so supported by legal advice is important.
“An early appointment can give your legal team the ammunition they need for a breakthrough in negotiations”
Lawyers should help ensure the expert input maximises your chances of a quick resolution, and can instruct the expert for best results. They will also usually have an established contact book of reputable experts who are right for your dispute.
Often, obtaining early expert advice increases the success of early dispute resolution. This is especially likely where there are unusual or complex technical questions to be resolved.
An early instruction can also avoid the cost of instructing experts to produce court compliant reports. Complying with what’s known as ‘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 they need for a breakthrough in negotiations. Disclosing preliminary expert evidence can also be helpful in the run-up to mediation, particularly when claiming against parties covered by professional indemnity insurance.
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