Working with expert witnesses... is a new monthly article series. The series takes a look at the role of expert witnesses in a range of sectors from the perspective of the legal and other professionals who work with them. If you are interested in being featured in the series, you can contact us at policy@ewi.org.uk.
The first article in the series is by Richard Black and Jennifer Fitzmaurice from Eversheds Sutherland on their experience of working with expert witnesses in the construction industry.
Why is expert evidence so important in the construction industry?
Expert evidence is crucial in the construction industry due to the technical, specialist, and often complex nature of disputes that arise in this sector and which go beyond the legal expertise of lawyers, arbitrators and judges.
It is common for claims to hinge on expert evidence, including as to design, defects, delay and quantum.
We will often seek expert input very early on in a matter, in order to properly understand the merits of our client’s claim or defence and advise the appropriate next steps or strategy accordingly.
Selecting the right expert is therefore of paramount importance on almost every construction dispute.
What qualities do you look for when appointing an expert?
A great expert witness combines technical expertise with integrity, clarity and fairness.
The first quality we look for is expertise – do they have extensive, hands-on experience of the particular issue in the dispute? Is this experience recent and on real projects, as opposed to perhaps more ‘career’ experts who, whilst being credible, may lack experience of the latest position or recent changes.
In some cases, where we are carrying out an early evaluation of a matter, our clients may be looking for practical advice as to how to rectify the issue, as well as support for the potential dispute. In these cases, practical and industry experience is particularly important.
Where formal proceedings are inevitable, it is important that the expert can properly and clearly communicate this experience and expertise in a way that makes it easy for a tribunal to understand.
Finally, remaining calm and credible under inevitable pressure during hearings or under cross-examination is extremely important.
When selecting an expert, we typically research their appropriate expertise, review their CVs, interview them and also seek referees where available. It is extremely helpful when experts can provide referees from past cases that they have worked on. We will also obtain feedback from other lawyers, both inside and outside of Eversheds, if they have used the expert previously.
How much weight do you put on hearing experience?
If the matter we are working on goes to trial, we would expect our expert to attend and observe any evidential areas which are relevant to their report (subject to any restrictions imposed by the relevant tribunal)
Prior experience giving evidence before a court or tribunal is helpful, but not essential.
In cases involving delay and quantum claims, which are the most common form of construction dispute, we would expect the lead expert to have trial experience.
However, it is common for construction disputes to raise very specific technical issues. In these cases, we regularly prioritise technical expertise over trial experience.
A significant number of cases settle before a hearing takes place, and it is often the technical experience of an expert that can help achieve an early settlement by unlocking the technical issues between the parties.
In all cases, we recommend that experts attend cross-examination training prior to hearings taking place, as this can often fill the gap in trial experience, or act as a refresher for more experienced experts.
What are the main duties of an expert witness?
Part 35 of the Civil Procedure Rules governs the use of expert witnesses in civil litigation. For example:
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Provide independent and impartial evidence
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Base opinions on facts, analysis and professional judgment
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Clearly state when an issue is outside their expertise
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Include in their report any material facts which could affect their conclusions
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Comply with any tribunal directions and deadlines.
Similar duties are often imported into international arbitration proceedings, whether by order of the Tribunal, and/or through incorporation of the Chartered Institute of Arbitrators Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration.
In any event, ensuring credibility of the expert is key to ensuring that any opinion is given sufficient weight by a Court or Tribunal. This means, as a matter of practice, presenting evidence in a neutral and balanced way.
Can you provide any tips on how experts can make an instructing solicitor’s role easier during a dispute?
More often than not, the best practices are relatively simple:
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Understand and address the issues in dispute, and adopt a reporting structure which reflects the issues in dispute.
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Keep reports clear and succinct, avoiding too much technical jargon or, where technical jargon is unavoidable, provide clear explanations and definitions. Include cross-references to any documents relied upon.
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Comply with agreed deadlines, whether set for internal purposes or by the Court or Tribunal.
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Provide reliable cost estimates and regular cost updates. This is particularly important in court proceedings which are subject to cost budgeting.
Working well with the other side’s expert is also extremely helpful, with a willingness to identify areas of agreement and disagreement in order to ultimately narrow the issues in dispute.
Experts who understand that their role is giving technical evidence rather than trying to determine the dispute underpins this approach, and can really help us to advise our clients better on the merits of their position.
Are there any common pitfalls for experts to avoid when instructed on a dispute?
There are a few mistakes that experts regularly make, which can and do fundamentally affect their credibility:
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Appearing biased towards the instructing party.
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Making assumptions or overstating conclusions without adequate evidence.
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Giving opinions which are outside of the expert’s scope or expertise, including determinations of facts or opinions of law (which are for the Court or Tribunal).
Ultimately, impartiality and accuracy are key – and credibility once lost is quite difficult to recover.