The SCL has recently launched a consultation on the use of experts in construction disputes. It wants to know why parties instruct experts, how parties use their experts and whether the tribunal should have a greater say in the expert’s role in the dispute.
The SCL’s July newsletter suggests that the consultation aims to “provoke wide-ranging discussion” and to “reflect some concerns expressed, for example, about the cost of expert evidence and the independence of some [experts]”. The consultation is looking at all forms of tribunal, including the courts, arbitration, adjudication and other forms of ADR, like mediation and expert determination.
As someone who acts as an expert and also as a tribunal (in adjudication and arbitration), I think the results will be interesting, although it looks like we will have to wait until next year to find out what other people think.
Use of experts in construction disputes
Everyone familiar with construction disputes knows how heavily the parties rely on expert evidence in those disputes. Often, a client needs an expert to work out what has gone wrong and who may be liable. In fact, unlike in other areas of the court process, the TCC guide recognises that the parties may well have instructed an expert before they issue proceedings. In all but the simplest of “money-related” construction disputes, it seems unlikely that a potential claimant would even consider sending a letter before action without first consulting an expert.
The same is true in adjudication, where I often see parties using experts to support their claim. Experts play an important role in assisting the parties and the adjudicator, who may find it helpful to have someone with a technical understanding of the dispute present the evidence and answer questions.
Expert to be independent and impartial
One of the issues that the SCL is looking at is the independence and impartiality of the expert, and what procedures can be used to ensure the expert isn’t acting as a hired gun. CPR Part 35, its Practice direction, and the Protocol for the Instruction of Experts to give Evidence in Civil Claims mean there is an absolute duty on the expert to “help the court on the matters within their expertise”, a duty which ”overrides any obligation” to the instructing/paying party. Last year I said that I thought 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. I see no reason why that shouldn’t be extended to other areas of ADR.
When the results of the SCL’s consultation are known, it will be interesting to see if others share that view.
And what happens when I act as an expert?
Obviously, I endeavour to be true to my word, and apply the principles of the Protocol. I also look to the guidance in the RICS’ practice statement on surveyors acting as expert witnesses, which all surveyors must comply with (it may be a disciplinary offence not to). It also wouldn’t help if an allegation of professional negligence was made against you, and you hadn’t complied with the RICS’ guidance.
Unlike the Protocol, the RICS’ guidance extends to a surveyor acting as an expert in any tribunal, so it covers the obvious, like the courts, arbitration and adjudication, but also all sorts of other tribunals and committees that some surveyors may get involved with, like those related to land, planning, leasehold property and valuation.
As a member of the RICS, if you act as an expert witness, your primary duty is to the tribunal, not your client. This echoes the principles in the Protocol and CPR Part 35. You also have to:
- Be independent and unbiased.
- Only give evidence on matters that fall within your expertise, experience and knowledge.
- State the main facts and assumptions you have relied on.
- Not omit material facts that might be relevant to your conclusions.
- Be impartial and uninfluenced by those instructing or paying you to give the evidence.
The bar is set very high.