REUTERS | Eric Thayer

Experts under the spotlight again

A few weeks ago, I wrote about the role of expert witnesses under the Dubai’s civil code. Matt has also discussed experts recently, looking at the difficulties an expert may face, depending on his client and the nature of the dispute.

Given the importance of expert evidence in construction disputes and the sheer number of people who must be acting as an expert at any one time, it should come as no surprise to see the topic cropping up again. This time, I was intrigued by what may be expected of the role of an “appraiser” in Turville v Chartis, but not surprised to see some of the judge’s comments in Melhuish v Hurden.

If you are not familiar with these cases, here’s a brief recap.

Turville v Chartis

Following a fire at its property, Turville made an insurance claim. As the parties could not agree the amount that Turville was entitled to under the policy, the insurer (Chartis) invoked the procedure set out in the insurance contract’s arbitration clause. Each party appointed an independent appraiser, as required.

The appraisers did not reach agreement on the sum due (there were issues of betterment and demolition that (it was argued) should never have taken place). About £1 million was in dispute. Eventually Turville started court proceedings (rather than using arbitration) and Chartis applied to court for a section 9 stay. The court granted the stay, but held the Arbitration Act 1996 did not apply to the arbitration. It reached this conclusion because, it said, the arbitrator was not truly independent as the arbitration clause required him to agree with one of the party’s appraisers, if they could not reach agreement between themselves.

What is an appraiser?

I’m not too familiar with the nuances of arbitration clauses like the example in Chartis’ insurance policy. Therefore, when the judge was discussing whether this was an arbitration clause within the Arbitration Act 1996, and the fact that the arbitrator would have to agree with one of the parties’ appraisers, it made me think about their role.

It seems that an appraiser under this type of insurance policy is supposed to act on its client’s behalf and is appointed to persuade the other party’s appraiser, or the arbitrator if matters reach that stage, of the merits and value of their client’s position. As we are talking about a form of arbitration, there is no CPR-style duty to the court, or a protocol on instructing experts. However, we are so often reminded that an expert is not a “gun for hire” and should not act in a partisan way.

I don’t believe I’ve ever found myself in the position of an appraiser, so it is hard to judge how I’d act. However, I’d like to think that I’d bring to that role some of the same qualities that I’d bring to an expert appointment in other proceedings.

Melhuish v Hurden

Here a contractor’s claim for outstanding monies was met by the home owners’ substantial counterclaim for remedial works. Each party instructed experts, but it was the first time that the contractor’s expert had given evidence, so he was “less accustomed to the role of a court expert”. This meant that (according to the judge), he didn’t appreciate that he shouldn’t meet with witnesses without telling the other side. Also, he “adhered to” a view that bent wall ties were not defects long after it should have been clear to him that his view “was not tenable”. By contrast, the home owners’ expert was an experienced expert and the judge was impressed by his impartiality (even if the home owners had lost confidence in him).

Everyone has to start somewhere, but…

While every expert has to start somewhere, and it’s easy to misunderstand the role of the expert witness at first, experts must nevertheless comply with their relevant obligations, in this case those under CPR 35 and the relevant practice direction and protocol, as well as the RICS Practice Statement, Surveyors Acting as Expert Witnesses.

These obligations make no exceptions for inexperience. That said, I acknowledge that it can sometimes be difficult for experts to identify when they may be veering towards advocating a case. As I’ve said before, the best “reality check” is for experts to ask themselves whether they would be of the same opinion if they had been appointed by the other party.

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