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Expert witness: a role to be proud of in construction conflict resolution?
- Dec 16, 2022
- Latest Journal
David Brown, director in Currie & Brown’s Manchester office, gives his perspective on the valuable role of the expert witness in dispute resolution in the construction industry.
Industry experts can make a crucial and valuable contribution in resolving conflict and claims by offering their perspective and opinion as an expert witness.
An expert witness is someone with knowledge in a specific area, enabling them to offer independent technical expertise outside the experience or knowledge of the courts or tribunals, contributing to a fair outcome.
The original basis of expert appointment may be found in the 1993 shipping case judgement, known as ‘the Ikarian Reefer’, where Mr Justice Cresswell sets out the duties and responsibilities of an expert witness, including obligations to be independent, objective and unbiased, as well as identifying where insufficient data is available to properly form an opinion.
An expert role may typically include acting as:
▪ Expert advisor: providing advice but not opinion.
▪ Shadow expert: input ‘behind the scenes’ in a court claim.
▪ Expert witness proper or party-appointed expert: contracted by one party to provide an opinion.
▪ Single joint expert: instructed by all parties involved.
▪ Lead expert: when a complex claim requires multiple experts.
▪ Assessor: introduced by the Civil Procedure Rules and appointed by the court as an expert.
Claims in context
At the outset of any construction contract, all stakeholders hope the project will run smoothly and be completed on time and to budget.
However, there’s no guarantee that projects will run to plan.
Construction involves a variety of stakeholders, usually with different interests and sometimes conflicting goals.
The extended timescales and complexity of construction projects mean that however well planned, it’s almost impossible to foresee every detail and mitigate every risk, variable or nuance.
Examples include a request or expectation by the client for a change of specification, or additional works being needed in response to the discovery of unforeseen issues.
These scenarios and others typically lead to delays which, generally, mean increased costs.
Oxford University’s Saïd Business School has found that nine out of ten mega infrastructure projects go over budget.1
If resulting disagreements cannot be resolved between the parties, the next step is often to agree to advance a claim, normally pursuant to the terms included in the construction or consultancy agreement.
Calling on the expert witness
The scale of disputes, claims, court or alternative dispute resolution (ADR) proceedings is significant. Global Construction Review reports that globally, in the year to August 2021, $73 billion was tied up claims and disputes in big construction projects.2
Construction dispute resolution is unique in spanning more specialist forms of dispute resolution than any other industry. As well as more traditional processes such as court litigation and arbitration, parties to a construction dispute frequently turn to one of several forms of alternative dispute resolution such as dispute boards or mediation, or a state-legislated adjudication process where available.
The outcome will inevitably depend on the quality of the evidence, which can include opinion- based evidence prepared by those with relevant experience. That often means calling on an expert witness.
Typical cases in which an expert witness may be engaged include:
▪ Compulsory purchase orders
▪ Contractual disputes
▪ Planning permissions
▪ Construction defects
▪ Design defects
▪ Professional negligence
▪ Valuations
▪ Insurance claims
▪ Loss of earnings
▪ Injury
▪ Intellectual property
Your time may come
At some point in their careers, construction professionals may be asked to provide advice or opinion evidence to a court, tribunal or adjudicator. If asked to provide opinion as an expert witness in the United Kingdom, the expert witness is usually appointed by one of the parties involved in the case. In other civil law jurisdictions, the request may come from the court or tribunal itself.
Response to request for expert witness
A request to act as an expert witness is not a subpoena or an instruction to provide opinion. The role is voluntary. On accepting the request, the expert witness will be given a list of the parties involved to ensure there is no conflict. The evidence required can vary from quite broad to very specific, depending on the case and circumstances.
Regulatory requirements – under the practice notes of the Royal Institution of Chartered Surveyors, for example – may mean that evidence is given as an expert individual, independent of the expert witness’s employer.
There is not necessarily a need to appear in person before the court, adjudicator or tribunal. In common law jurisdictions, including England and Australia, expert evidence is often given in a written report (unless the court decides otherwise). A need to testify in person may be required in some circumstances, as decided by the court.
However, in cases of international arbitration, some jurisdictions do require evidence to be affirmed in person, or it is inadmissible. The DIAC in Dubai is one example.
In the chair for questioning
If oral evidence is given by the expert witness, questioning by lawyers is usually in three tiers.
First is the examination-in-chief, intended to enable legal counsel to elicit information to support their client’s case.
The expert is expected to give truthful and objective answers even if these undermine the examining lawyer’s case. It is important to note that duty to provide impartial evidence overrides any contractual arrangements.
Next is cross examination. This seems, and often is, adversarial. However, it is an essential part of many legal systems, as it allows the other party’s legal representative to challenge and probe a witness’s evidence.
Finally, re-examination takes place. The original lawyer questions the expert witness again, but this time the points being made must be restricted to matters covered during the cross examination.
At this stage no new facts or opinion can be introduced and there cannot be a return to matters that were not challenged at the cross-examination stage.
While the process may seem daunting, evidence from an expert witness can be an essential part of many dispute resolution processes.
Platform to gain valuable experience
Experience of acting in this role can build an individual’s own credentials in validating their experience and skill in a particular field.
Legally, an expert witness’s knowledge must be beyond that of a lay person but there is no requirement to prove exceptional authority on a particular subject. For some, the established Scottish legal term of ‘skilled witness’ better describes the role.
If someone asked to act as an expert witness does not feel confident in their level of knowledge and expertise, they are obliged to turn the request down.
Acting as an expert witness does come with a weight of expectation, and not everyone may feel suited to the role – it’s not for the faint-hearted. It is a serious and public role, and the very nature of the process means knowledge and integrity may be called into question.
Giving written evidence may be followed by a request to supplement this with oral testimony to the court or other judicial body. This in-person appearance requires a level of confidence – the experience can feel confrontational and even unpleasant.
While the role of expert witness is not necessarily enjoyable, it is interesting and challenging.
There is also immense satisfaction to be gained from helping the wheels of justice to turn, and contributing to equitable settlement to a dispute, promoting fairness and endorsing best practice – undoubtably a source of professional pride.
To find out more about Currie & Brown’s expert witness experience and offering,contact:
David Brown Director
+44 7387 604 689
david.brown@curriebrown.com
What is an expert witness?
An expert witness is someone with specialised knowledge or expertise in a specific field, which qualifies them to present their independent and impartial opinion about the facts during legal proceedings.
The expert witness’s duty is to the court and overrides any obligation to the instructing party.
An expert witness is not paid for their opinion, but for their time in forming, giving and supporting their opinion. No formal qualifications are required to act as an expert witness.
An effective expert witness offers:
▪ Detailed subject matter knowledge and experience. ▪ Strengths in analytical reasoning.
▪ Good communication skills.
▪ Ability to respond to new or changing evidence.
▪ Confidence under cross- examination.
▪ Suitable understanding of the variety of dispute
resolution procedures.
References
1 https://www.pinsentmasons.com/out-law/guides/industrialised-construction