Practical Law

You often know when you start reading a judgment how the case is going to turn out by the way the judge describes the parties’ expert witnesses and witnesses of fact. I got that feeling recently when reading Akenhead J’s judgment in National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try. Even if the judgment hadn’t mentioned the liability concessions made by the architect and contractor before and during the trial, I’d have known the museum won without having to turn to the end to find out that it had been awarded damages of over £1.1 million.

Are you wondering why?

National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try

The case concerned the new Museum of Liverpool, which opened in July 2011, and the significant defects in its design and construction, including the steps and terraces of the “half amphitheatre” and two types of suspended ceilings, one of which collapsed. Unsurprisingly, the museum started proceedings against the architect and designer, AEW. AEW brought third party proceedings against the contractor, a PIHL/Galliford Try joint venture.

In many ways, this was a run-of-the-mill claim against a professional consultant for breach of duty and a claim against a contractor for breach of contract. In a 37-page judgment, Akenhead J looked carefully at the parties’ liability for the individual defects and concluded that the museum was entitled to over £1.1 million, split between the parties to reflect their individual contribution to the mess. What makes the judgment of particular interest is not the factual analysis of what happened (or did not happen) but the judge’s views on the various witnesses.

The witnesses of fact

Somewhat unusually, at trial AEW did not call any factual witnesses of its own and it withdrew the only two statements that had been exchanged. I must say I can’t recall a case where a party in the architect’s position has done this. Even in adjudication proceedings, we seldom get a case where one party fails to advance any witness evidence. I sometimes wonder if it would be better if we did get fewer (and shorter) witness statements, but perhaps that is a topic for another day.

On the other hand, both the museum and the contractor provided a number of witnesses, the most impressive being Ms Granville, the executive director of the museum who worked on the project full-time. She was said to be an “impressive” witness, her descriptions were “helpful in giving a very real insight into the major difficulties” the museum experienced, she gave concessions that “underlined her basic honesty and integrity” and she stood up to cross-examination well. The judge said he accepted her evidence “largely in its entirety” and found her “immensely believable”. That is praise indeed and praise only reserved for her. The contractor’s witnesses fared less well, with one described as “somewhat careworn if not diffident”.

The experts

Now I’m back to where I started this post. Three discplines, nine experts. Of the three representing the museum:

• The expert architect was an “extremely experienced architect and indeed expert” who produced “by far the best expert report”. He came over as “thoughtful, serious and knowledgeable” and had “carefully analysed all the issue and gave the most comprehensive and credible evidence”.
• The engineering expert was described as the “most pragmatic” of the three engineers, and was straightforward and authoratitive.
• The quantity surveyor was “highly experienced, decent, straightforward, independent and pragmatic”.

It seems like a love-in for the museum’s experts!

AEW’s experts did not appear so impressive. Quite the contrary, with:

• The expert architect described as “wholly unimpressive”, to have “given little or no coherent thought to the issues in the case” and, worse of all, admitted that he was “seeking to defend the indefensible for the benefit of AEW”. It was the first time he had given expert evidence.
• The engineering expert “often argumentative, if not combative when cross-examined”, not quite partisan, but nearly there, with a tendency to oversimplify. The judge noted he adopted a firefighting approach to “circumvent or soften” what AEW’s expert architect had said.
• The quantity surveyor also coming in for criticism, even if his approach to a certain issue (past costs) was unwitting. Too often he supported the “minimum cost of future work that could be justified as opposed to the reasonable or probable cost”.

The contractor’s experts did a little better than AEW’s experts, but I think that to go into the detail would be labouring my point somewhat.

Being an expert

And my point really is, as I’ve said many times before (including just last month), it is difficult being an expert. Everyone in the business of acting as an expert knows that. Everyone also knows that, as an expert, you have to start somewhere, to have that first instruction that goes to trial (and that can be very rare nowadays). But just because it is your first time doesn’t excuse you from understanding the requirements of CPR Part 35, its practice direction (PD 35) and the experts’ protocol, as well as being familiar with the requirements of your professional body. Those instructing you should also make sure you stick to the expert’s path, ensuring that you do not stray into the realms of partisan evidence.

At the moment we seem to be seeing a succession of cases where the experts are coming in for considerable criticism. I doubt this will be my last post on the subject.