I was recently fortunate enough to be asked to speak at a dispute resolution conference in Dubai, which was jointly organised by Dubai Land Department and RICS. On one of the days, I took part in an expert witness workshop. It was fascinating to talk to people who act as experts in the local courts: Dubai has a civil law system so the expert is appointed by, and directly assists, the court.
Complying with the Ikarian Reefer principles
As part of the workshop, we went over the basics from the Ikarian Reefer, stressing the importance of being independent and remembering that the expert’s duty is to the tribunal, and not to the party who appointed the expert.
Practically, I think that one of the best ways an expert can ensure that they comply with that duty is to ask themselves this question before committing their opinions to writing:
Would I be of the same opinion if I had been appointed by the other party?
If the answer is no, then the expert is not fulfilling his or her duty.
The “(50) shades of grey” issues
However, complying with their duty to the tribunal is still something that many experts struggle with.
In my experience, experts tend to agree on the black and white issues. It is the “(50) shades of grey” issues they struggle with – the points that are arguable either way. In such instances, experts tend to lean towards their respective client’s case. This was epitomised for me when speaking to a rent review expert recently who said that, when he is appointed as the tenant’s expert, his opinion of the rent leans towards the lower end of the scale, but when he is appointed by the landlord, his opinion veers towards the upper end.
Regardless of whether this is unwitting or not, experts should not consider such an approach acceptable, because it’s not. Any expert who thinks it is acceptable should read the final section of the judgment in Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd. For those of you that haven’t the time to read it, the expert wrote an article, The Expert Witness: Partisan with a Conscience. It’s not difficult to guess what the judge thought about that, and he concluded by saying:
“In the light of the matters set out above, during the preparation of this judgment I re-read Mr [X’s] report on the understanding that it was drafted as a partisan tract with the objective of selling the defendant’s case to the court and ignoring virtually everything which could harm that objective. I did not find it of significant assistance in deciding the issues…”
Learning from the civil law system
I think that many experts would benefit from undertaking the role of a single joint expert or expert determiner. In a similar manner to those experts in the Dubai courts, the single joint expert or expert determiner has no loyalty to either party, and simply forms an opinion based on the evidence presented and his or her own investigations. It’s really quite simple…
One thought on “Educating the experts”
Jonathan, thank you for an interesting article. The Cala Homes case was in 1995 (2 years after the Ikerian Reefer) and the attitude of the expert would, I hope, be considered to be shocking by all experts now practising. There are other examples of cases from that period that suggest the the expert was, at that time, not alone in his views as to how he should act – see for example Anglo Group Plc v Winther Brown & Co Limited from 2000.
In reality the problem nowadays has become much more of “nuancing” reports I suspect. Leaning towards “your” side, rather than acting as advocate for them, as the expert in the Cala case did. I suspect that is much more difficult to spot, both by the tribunal and the expert who may not even be consciously doing it.
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