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Using expert evidence in adjudication

Last week, I touched on whether documents should be ‘disclosed’ in adjudication. One aspect of my post looked at expert evidence, so here are some further thoughts on experts in adjudication…

Some disputes can be decided on the basis of the contract, the relevant correspondence and a few other contemporaneous documents. Other disputes require more detailed evidence from witnesses and experts. In my experience, it is commonplace in adjudication for parties to include expert evidence with the Referral and with the Response.

The type of expert (architect, engineer, quantity surveyor and so on) and the extent of the expert (and other written) evidence will depend on the nature of the dispute I am being asked to decide. However, the factors that a party should bear in mind when presenting their expert evidence are always the same.

Tips for preparing expert evidence

My tips for preparing expert evidence in adjudication proceedings are:

  • Keeping the report short and to the point. Deal only with the items and issues in dispute. A “kitchen sink” approach does not help anyone. Equally, do not include items that have not been included in the Referral or Response (this may open up my decision to challenge in enforcement proceedings).
  • Providing the adjudicator with reasons for the opinions expressed in the report. You’d be surprised how often an expert seeks to justify his reasoning simply by referring to his “years of experience”.
  • Including a range of opinion based on the possible outcomes, for example a “shopping list” that will be dependant on the adjudicator’s findings in relation to the contract and/or facts.
  • Ensuring documents referred to are included in the bundle or are attached to the report and are adequately cross referenced. This will save the adjudicator time and costs.
  • Reminding the expert to refrain from acting as a “hired gun”. Partisan evidence does not assist the adjudicator. Quite the opposite, often it can hinder the process, requiring more of the adjudicator’s time and detracting from what may actually be an otherwise sound opinion.
  • If you are using an expert’s evidence for the first time in the adjudication, ensure the gist of what the expert is saying has already been made known to the other party. While this may not affect the adjudicator when he is making his decision, you may expose yourself to an argument at enforcement that the dispute is new and has not crystallised.

If the adjudicator calls a hearing, it is helpful if the expert spends a few minutes introducing his evidence. This will allow the adjudicator to understand the expert’s approach to the dispute.

Remember adjudication is not court litigation. Any hearing before an adjudicator is different to an expert giving evidence to a court. However, the principles that underpin expert evidence under the CPR should still guide the behaviour of the parties and the experts. After all, one day you may need to rely on the expert’s evidence in future court proceedings.

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