Practical Law

A couple of months ago Matt and I were asked to speak to some experts about what adjudicators really want from them. Given that there haven’t been many reported adjudication enforcements lately, I thought this week would be a good opportunity to share some of my tips.

The first thing to say is that this isn’t a review of the duties of an expert witness, and if you aren’t aware of them then a good starting point would be to read The Ikarian Reefer. However, it is important to note that, although I am referring to experts giving evidence in adjudication and the provisions of CPR 35 and its associated guidance don’t apply, the expert may well still need to comply with the same duties by virtue of the rules and standards of their professional body. For example, surveyors acting as experts are obliged to comply with the requirements of the RICS Practice Statement, Surveyors acting as expert witnesses (4th edition), when giving expert evidence in adjudications.

Involvements and conflicts

Involvements and conflicts are issues that arise in front of all tribunals, but I think that it can be more of an issue with adjudication due to their shorter durations, meaning that an expert might do more repeat work for a particular client or firm of solicitors.

That’s not to say that working on repeat instructions for the same client or solicitor automatically constitutes a conflict (because it doesn’t) but it is something to be aware of.

My advice is that an expert should:

• Be as honest and transparent as possible, and remember that, just because adjudication is intended to be a confidential processes, it doesn’t mean that there should be any lesser level of disclosure.
• If in doubt, declare the involvement, because it is not going to look good if it comes out at a later date, as the recent case of Russell v PSP Consultants demonstrates. Although the judgment did not concern an expert acting in an adjudication, Jefford J’s comments about the employer’s expert failing to disclose in his report that he had been the employer’s representative for five months prior to being appointed as expert are relevant:

“That was obviously relevant and I can see no satisfactory explanation for his failure to mention this role in his report but rather declaring that he had no other relationship with the claimants (which was factually wrong). I do not, however, think that it would be fair or realistic to dismiss Mr [X’s] evidence simply on the basis that he lacked independence. He was still capable of expressing an independent view on the matters on which he was asked to opine. However, it does seem to me that it may have led Mr [X] on occasion to try too hard to advance the claimants’ case and I bear this in mind when assessing his evidence.”

• Not just think about the party and firm of solicitors when approached about an appointment, but also take into account the identity of the adjudicator if he or she has already been appointed.

Impartiality

I appreciate that most of you will understand the obligations of an expert to act impartially, so I just want to touch on this. My recommendations would be that an expert should:

• Be wary of being too enthusiastic about their client’s case, and not become an advocate for them.
• Question whether they would have given the same evidence if they had been appointed by the other party. If the answer is no then the expert should re-visit their evidence. This is a simple but effective sanity check, which instructing solicitors can also ask of the expert.
• Not let their guard down simply because they are giving evidence in adjudication and may not be cross examined, as the recent case of Grandlane Developments v Skymist Holdings demonstrates. In that case, Jefford J set out the adjudicator’s views of the expert evidence in her judgment:

“Skymist had sought expert evidence from Mr [Y] on an alternative cost or value. The adjudicator’s view was that Mr [Y] had not carried out an independent valuation of the works at all. Rather, he had adopted what he was instructed was an agreed construction cost of £23.5 million. He had not sought to verify that figure; he had at best made some minor adjustments to it; and he had not carried out any analysis of the Leslie Clark figure. The adjudicator concluded that the Leslie Clark estimate based on their first-hand knowledge of the project was more compelling…”

• Avoid setting out strongly held views on matters in articles (or blogs!), because they might be used against the expert in the future. This is demonstrated by Cala Homes (South) v Alfred McAlpine Homes, where the “expert” had written an article (The Expert Witness: Partisan with a Conscience) suggesting that experts could be partisan by concealing material matters that went against their client’s case. 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 [Z’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.”

Length of the process

It is vital that the expert remembers that adjudication is generally used as a fast track dispute resolution process lasting somewhere between 28 and 56 days. The expert should:

• Think about the type of dispute. In particular, is it a single issue concerning the matter of the expert’s specialism, or does it involve multiple issues such as a final account dispute?
• The expert should bear in mind how long the adjudicator is likely to have to deal with their part of the dispute. The adjudicator may only have two or three days to read and absorb the expert’s report(s), as well as the report(s) of the opposing expert(s), reach their conclusions and write that part of the decision.  If there are hundreds or even thousands of pages of reports and exhibits the adjudicator may struggle to fully get to grips with the issues.
• Try not to make their report too voluminous. The expert should make use of appendices and executive summaries, and ultimately, make it as easy as possible for the adjudicator. However, I do appreciate that adjudication poses particular problems because the experts are unlikely to have met to narrow the issues, and we all know that sometimes having less time can sometimes result in a lengthier document. As the French mathematician and philosopher, Blaise Pascal, once famously wrote:

“I have made this letter longer than usual because I lack the time to make it shorter.”

Content of reports

When it comes to the contents of the report, the expert should:

• Avoid opining on the law, contract and facts, although I acknowledge that this can sometimes be a grey area. For example, in cases of professional negligence, the issue of what a particular professional should or should not have done in the administration of a contract might be relevant, and the expert may have to give evidence as to what a reasonably competent professional should have done under the contract in those circumstances. If in doubt, the expert should seek instructions from their client or instructing solicitor.
• Remember that the adjudicator will probably not have been to site and so plans, photographs and other visual aids can be very helpful.
• Not assume that the adjudicator will be a construction professional, or at least not assume that they will understand construction jargon. Therefore, it is important to ensure that any project specific and/or technical jargon is defined, for example the adjudicator may not be aware that “MEWP” stands for “mobile elevating working platform”.
• Cross refer to the exhibits so that they can be easily found by the adjudicator. As I’ve already said, try and make the adjudicator’s job as easy as possible.
• Check with their instructing solicitor about how they intend to reference the exhibits in the bundle.  If the instructing solicitor is going to use Appendix 1, 2, 3 and so on, then the expert should consider using Tab A, B, C etc. This avoids confusion as to which exhibit is being referred to, and to awkward references to (for example) Appendix 1 of Appendix 2.
• State the title of the report on the header or footer of their report(s). I find it can get quite confusing having five or six documents open on my desk, all with similar fonts, paragraph numbering and so on.

Responding to the report of another expert

How an expert responds to the report of an opposing expert can tell a great deal about their integrity, and whether they understand their duties to the tribunal. The expert should:

• Not aggressively attack their opposing expert, particularly on matters of qualifications and experience. It is crass and does not look good. In my view, if the opposing expert’s qualifications and experience need to be addressed, then the expert should leave this to their instructing solicitor.
• Respectfully address points where the opposing expert has given a differing opinion, and give reasons why they considers their own opinion to be correct.
• Make sensible concessions.

And finally…

In my experience, good expert evidence won’t necessarily mean that your client ends up winning when they had a bad case because most adjudicators worth their salt will normally see through this, so don’t be too disheartened if you lose.

However, I can think of examples where poor expert evidence has led to a party being less successful than they otherwise could have been, so take care.

Also, remember that most adjudicators who are technically qualified will judge the expert evidence on the merits, and not simply prefer the evidence of one expert to the other as we sometimes see in litigation. So, if expert A says that a reasonable rate for scrabbling a screed is £10/m2 and expert B says it is £20/m2, if the adjudicator considers that expert B’s rate is reasonable, then they are going to adopt it regardless of whether expert B is less experienced, has not complied with some of the duties as expert, and so on.