“This gun for hire” was a 1940’s film-noir starring Alan Ladd and Veronica Lake. It was about a hit man and an entertainer, good cops and bad guys, and revenge. Hardly a film that would immediately make you think about 21st century adjudication, or allow you to draw parallels with the process. However, I think you’d be wrong.
Parties often use experts in adjudication. We are all familiar with the role they can play and their importance in helping the parties. I find that sometimes experts act as a party’s main spokesman in their meetings with me. There is nothing wrong with this. In fact, it is usually very helpful for the adjudicator to have someone with a technical understanding of the dispute to present the evidence and answer my questions.
But what happens when the expert goes too far, and appears to lose his impartiality?
We all know that experts in adjudication are not bound by the same rules as experts in court litigation. There is no CPR Part 35, its Practice direction, or the Protocol for the Instruction of Experts to give Evidence in Civil Claims. This means that, while experts may apply similar rules, there is no absolute duty to “help the court on the matters within their expertise”, a duty which “overrides any obligation” to the instructing/paying party.
However, I think that an expert involved in an adjudication should be bound by the same rules as he would be if he was involved in court litigation. A hired gun (see the film reference now?) or partisan expert is unhelpful to both the adjudicator and to the parties. Not only can adjudicators see through what the expert says (yes, we can spot the partisan expert a mile off), it prolongs the process and increases the costs.
For my tips on using experts in adjudication, see Using expert evidence in adjudication. You may not get Veronica Lake, but you may just get an expert (and a report) that will assist the adjudicator.
