Over the last few months both Jonathan and I have written about various aspects of expert evidence, whether that is on the difficulties an expert may face, educating experts or what an appraiser is. However, another area of expert evidence that seems to get little coverage is what an adjudicator should do, if they suspect one of the experts involved in the dispute has breached his professional duties in some way.
For the purpose of this post, in my example the adjudicator and the expert are both members of the RICS. The issue is, should the adjudicator report that expert to their professional standards body if, in the adjudication, the expert has been partisan, a “hired gun“, for one of the parties?
Puts the adjudicator in a difficult position
The RICS’ bye-laws require a member to inform the RICS of a breach of “any Regulations and Rules” by another member. In other words, we are required to rat on our colleagues in certain circumstances. This could include a breach of a practice statement, such as Surveyors acting as expert witnesses, 3rd edition.
Other professional bodies, such as the RIBA and the ICE, also have such rules for their members.
As I see it, all this puts the adjudicator in a difficult position. Not only does he have to determine the dispute and reach an enforceable decision, he also has to balance a number of ethical factors. I’m sure one consideration must be what the adjudicator’s role is. After all, he has been appointed to determine a specific dispute between the parties, not sit in judgment of a fellow professional and exercise a disciplinary role. Another consideration must be that the adjudicator may have issues of confidentiality to contend with, as Jonathan discussed recently. Finally, I also wonder whether any report to the professional standards body would be reason for a party to challenge the adjudicator’s decision on the grounds of actual or apparent bias.
What does the future hold?
The SCL has been consulting with its members on issues arising with the use of experts in construction disputes, including adjudication. One aspect of the questionnaire deals with the independence of experts. It will be interesting to see what respondents have to say, when HH Frances Kirkham’s report is published later this year.
In the meantime, I will leave you with the words of Akenhead J in Cleveland Bridge UK Ltd v Severfield-Rowen Structures Ltd:
“…Neither expert has professed any particular expertise or experience to support such assessments. Extraordinarily, Mr Davis was reduced to seeking information from an engineering ‘chat room’ on the Internet… Mr Davis’ Internet chat room source is hardly or obviously reliable.”
I have to confess that it isn’t somewhere I’d have thought to look for guidance, although I’m sure it isn’t reportable to a professional body either!