Construction disputes often throw up complex technical issues that need to be resolved by reference to expert evidence. Selecting an appropriate expert in any dispute can be a difficult task. There have been a few recent changes in the law surrounding the appointment of experts, which may impact upon you when you are next faced with the task of selecting an expert in a dispute.
Selecting an expert who is still in practice
Selection of an experienced expert is of crucial importance if that expert’s evidence is to be given significant weight by a judge. But what about experts who are retired?
Following Henderson v R, Butler v R and Oyediran v R [2010] EWCA Crim 1269, particular care should be taken to ensure that the expert selected is still in practice in the field in which they are to give evidence. In particular, an expert should give his opinion upon issues he has had recent, practical experience of.
In Henderson, Moses LJ commented that being in practice affords an expert opportunities to “maintain and develop their expertise”, whereas an expert who has retired has “lost the opportunity, day by day, to learn and develop from continuing experience”.
Although with age comes experience, the mantra “age before beauty” is not so relevant when instructing experts. An expert should be, and appear to be, experienced. The judiciary (and the other side) may question evidence provided by an expert who no longer practices in their field.
Selecting an expert with previous
Should parties in a dispute overlook a credible choice of expert simply because of a previous, less favourable, encounter with the judiciary?
It has become commonplace for parties in a dispute to carry out an internet search against their opponent’s expert in an attempt to find negative information about the expert’s previous court experience. Such information can then be used to discredit that expert, casting doubt on both the reliability of the evidence and the expert themselves.
If a party wishes to appoint an expert who has had a previous, negative encounter with the judiciary, it may take comfort from the judgment in BSkyB Ltd v HP Enterprises Services UK Ltd. The case highlights that current judicial opinion is leaning towards the view that an expert is judged on the evidence and proceedings in question and not on past performances. Indeed, positive encouragement has been given in relation to the selection of witnesses who may be a little more battle hardened from previous experience on the witness stand.
That said, a party must always be alive to the possibility that their opponent could still try to rely on previous performances to discredit its expert. My advice is be prepared to address such challenges, should they arise, by knowing the full history of the expert selected.
Seeking an expert’s advice before appointing them
Of particular interest is the recent development concerning restrictions on a party’s ability to change its expert once instructed. This issue can arise, for example, if the first draft of an expert’s report is perhaps not as favourable as that party had anticipated, or lacks clarity or structure. As a result, a party may wish to change expert. The question is, can a party do this without prejudicing their case?
Generally, where proceedings have commenced, parties can only change experts with the court’s permission. In Gary Beck v Ministry of Defence it was stated that permission to change an expert will, in most cases, only be granted subject to the disclosure of the first expert’s report (even if this is only a draft report). More recently, the Court of Appeal has confirmed that it has the power to impose conditions on a party (Edwards-Tubb v JD Wetherspoon plc).
This presents an issue for the party who wants to change its expert, as the reason for the change is likely to be that the first report is unfavourable. These decisions can be seen as an active attempt to stop the practice of “expert shopping”.
In light of this, a party may consider ascertaining what the expert’s informed views are before formally instructing them to produce a report. This can be achieved by initially engaging the expert on an advisory basis. If that party is comfortable with the substance of the expert’s opinion after this advisory stage, it may wish to instruct them formally. Although that party will have to pay for the expert’s advice, this approach has benefits:
- Advice obtained in the expert’s advisory capacity will be privileged from disclosure.
- You will be informed of the expert’s view before they are instructed formally.
- It will alleviate some of the risks of disclosure, if there is a need to change expert later.
Judge an expert on his own merits
Selection of an expert needs to be considered on a case by case basis, with each expert being individually considered and judged on his own merits. Above all, any expert selected needs to be qualified, capable and experienced if the evidence they provide is to be given any weight by the court and a party’s opponent.
What happens when a buyer’s survey shows that a neighbour’s extension built in 2006 encroaches on the boundary line of the property being purchased. In addition, the first floor neighbour’s glass walled extension was supposed to have used obscured glass as dictated in the planning consent, but instead uses regular glass. The guttering and window ledge of the neighbour’s extension jut out beyond the boundary wall and encroach onto the house being bought. Should both vendor and buyer insist the neighbour puts in writing that they’ll rectify the encroachment? If the house purchase goes ahead, does the fact the original party wall agreement was between neighbour and vendor and does not carry over to new buyer weaken any stance that might force neighbour to rectify the breach?