One of the perennial issues in construction disputes, which often features on this blog, is how effective expert evidence is and the challenges for experts, lawyers and the courts when obtaining and using expert evidence.
Those of you with long memories will recall that this is something the Society of Construction Law (SCL) has been considering for a while now and I listened to Her Honour Frances Kirkham CBE speak on the subject in Birmingham last week.
Frances Kirkham hopes to publish her report later this year. Based on what I heard in Birmingham, it is fair to say, I think, that she has both hopes and fears for the future use of expert evidence in construction disputes:
- Hopes that the industry can work together to help all involved understand the benefit of good expert evidence.
- Fears that, sometimes, the quality or nature of expert evidence does not hit the mark.
As other attendees said, adjudication and adjudication enforcement does not seem to naturally lend itself to an assessment of the quality of expert evidence.
For me, the radical revolution introduced when statutory adjudication became available is passed, and the evolution of how construction disputes arise, are tackled and resolved continues.
While we have an adversarial system of dispute resolution, in adjudication, arbitration and litigation, tensions will persist when experts are called on to provide impartial, independent input.
My hope is that evolution can continue, with clients, new and existing experts, professional bodies, lawyers and dispute resolvers each playing a part in driving up a shared understanding of the value of expert evidence. What concrete steps we may all take to help achieve that, I will leave to the report.
I am not expecting a revolution in expert evidence in construction disputes just yet. Whether the industry can support continued evolution remains to be seen, but we should certainly give any positive proposals a chance.