The Expert Witness in Construction

Robert Horne, John Mullen

• Publisher: Wiley-Blackwell
• Year: 2013
• ISBN:
  9781118654354
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho urbanístico

The role of the expert witness has long been important in the resolution of construction disputes. The specialist opinion brought by the expert can aid understanding and interpretation of the facts of the dispute, and may be influential in deciding the outcome. The variety of dispute resolution procedures and the requirement for the expert witness to be independent places a heavy burden on the parties to identify and instruct an appropriate expert, and on the expert to ensure they discharge their duty in the correct manner.

The Expert Witness in Construction explains, in practical terms, the way in which experts work with particular reference to the construction industry. Within this book the Expert's role is explained in legal and practical terms as a progression from understanding the basic principles by which Experts can be identified, through appointment, to giving evidence before a tribunal. At every stage commentary is given to:

• help and guide professionals new to the arena of expert evidence;
• act as a resource for those already acting as Experts;
• assist party representatives looking for best practice guidance on the instruction of Experts; and
• provide parties to disputes information on what they should expect from the Expert they appoint to explain the issues in the case.

Covering all the implications of identifying, appointing, instructing and relying on experts, it will help the reader to understand why experts are instructed in the way they are, how to identify the expert that is right for a particular case and how evidence should be presented.

Written by a practicing lawyer and a consultant with extensive experience of acting as an expert witness, the requirements of both the lawyer and expert are discussed. As such, it will help both parties to understand each other resulting in a closer, more productive working relationship.

Part 1

Chapter 1	Introduction
Chapter 2	Independence and Duties
Chapter 3	Roles in Different Forums
Chapter 4	Different Types of Expert
Chapter 5	Procedural Rules, Evidential Rules and Professional Codes
Chapter 6	The International Dimension

Chapter 1

Introduction

1.1 Introduction

Expert evidence, as a subject for legal and even technical comment, is often confined to a few chapters in the middle or towards the end of textbooks covering all aspects of the law of evidence. The purpose of these textbooks is to deal with the law of evidence as a whole and so, in relation to expert witnesses, the key legal issues are identified relating to the production and use of expert evidence but, by their nature, these texts concentrate on the meaning of expert evidence in a legal sense and how it relates to the ‘law of evidence’. There is relatively little direct and in depth guidance on the legal issues arising from acting as an expert witness and the use of expert evidence. There is even less guidance putting this into the context of the construction industry and less still that deals with the practical and legal issues together. However, this degree of specific and detailed focus is necessary and invaluable for anyone acting as an expert witness and for those employing or instructing an expert. The law in relation to expert evidence is changing rapidly and so application and analysis of this area, in practice, is particularly important, whether you are an expert witness, instructing experts (frequently or infrequently) or relying on their views to support your position.

This book focuses on the expert’s role itself (rather than evidence or procedure) and is divided into two parts. Part One¹ establishes the legal issues and principles surrounding the use of opinion evidence generated by expert witnesses and the role of expert witnesses within, linked to and outside formal proceedings. Part Two focuses on the practicalities of being an expert, in particular giving guidance on the various ways in which expert evidence can be presented to a tribunal² and, before that, to the party instructing that expert.

In considering these practicalities this book will explore the different, and sometimes conflicted expectations of clients, lawyers and tribunals and will give guidance as to how expert witnesses, and indeed lawyers, can tread that tightrope to achieve the best use of the knowledge of the retained expert and deploy that knowledge in as persuasive a manner as possible. Of necessity, therefore, the second part of this book will go beyond the simple legal issues surrounding expert evidence and examine the practicalities that all experts should be aware of and how experts should conduct themselves while preparing for and giving evidence. It also provides those instructing experts with guidance as to how they can ensure that their experts provide them and the tribunal with the evidence that is required.

1.2 What is expert evidence?

The opinion of scientific men upon proven facts may be given by men of science within their own science³

The above quotation, taken from an eighteenth century case arising out of construction issues, is widely regarded as the first attempt by the courts of England to grapple with the question of opinion evidence – such evidence being not about a fact in question on which a witness had a direct perception but was instead about the interpretation of such a fact or set of facts. Until this point, and even for some considerable period after this case, while the impact and implications of this judgment were being understood, the interpretation of the facts was a matter for the jury (or judge alone in later civil disputes). This meant that complex and highly technical matters could be very difficult to deal with. As a result it is not surprising that construction disputes were difficult to present on a purely factual basis and this helps to explain why the construction industry was at the leading edge of developing a practice of expert witness involvement.

The essence of the issue in Folkes v Chadd⁴ was whether the demolition of a sea bank constructed to prevent the sea overflowing into some meadows contributed to the decay of a harbour. The question the court was asked to consider was what had been causing the decay to the harbour. The question itself was a matter for interpretation and would require a deep and detailed understanding of engineering issues to answer it. The defendant, Chadd, produced evidence from an eminent engineer to show that, in his opinion, the demolition of the sea bank had no significant impact on the decay of the harbour. Of course, the eminent engineer was not relaying to the court facts he had observed, but rather his interpretation of what those facts meant and what the consequences of those facts might be.

In his judgment, Lord Mansfield said:

It is objected that Mr Smeaton [the engineer] is going to speak, not to facts, but as to opinion. That opinion, however, is deduced from facts which are not disputed; the situation of banks, the course of tides and of winds, and the shifting of sands. His opinion, deduced from all of these factors that, mathematically speaking, the bank may contribute to the mischief, but not sensibly. Mr Smeaton understands the construction of harbours, the causes of their destruction and how remedied … I have myself received the opinion of Mr Smeaton respecting mills, as a matter of science. The cause of the decay of the harbour is a matter of science, and still more so, whether the removal of the bank can be beneficial. Of this, such men as Mr Smeaton alone can judge. Therefore we are of the opinion that his judgement, formed on facts, was proper evidence.

Parts of that explanation from Lord Mansfield are still clearly recognisable in the way expert witnesses are identified today. The most noticeable difference, at least on the surface, was perhaps the focus of the expert evidence being ‘a matter of science’. This was the tool the courts used to draw the evidence away from factual evidence without straying into fiction or wild imaginings. How much of the role of the modern expert witness in construction law can be said to be a matter of science? Is delay analysis a matter of science? What about quantity surveying or some aspects of architecture? These are all very relevant and important questions to the development of modern expert evidence dealt with in more detail in this book. However, the role of the expert witness has, in many ways, moved on considerably – not least of which appears to be the acceptance in the recent case of Jones v Kaney⁵ that the definition of expert must include an acceptance that there is some form of paid reward for the giving of that expert evidence.⁶

In essence then and at its heart, expert evidence is interpretive opinion evidence provided to the tribunal to assist the decision-making process. The expert witness does not make the decision⁷ and neither does he speak on issues outside the remit of factual evidence. For obvious reasons, what it means to be an expert and what it means to give expert evidence are closely linked. Where the dividing lines might be is a constant question and source for continual development, particularly in the construction industry.

1.3 The expanding role of the expert witness

The constant refinement of the role of the expert witness, particularly within the construction industry, is the focus of this book. Importantly, the role of the expert witness is now not solely about the production of a report or the provision of an opinion in relation to matters of science, or even the giving of oral evidence before a tribunal.⁸ The role of the expert now reaches back into projects still being constructed and forward into the operational phase of an asset and interpretation of the decision or judgment in any dispute. This is particularly true of private finance initiatives and other long-term or complex project models.

The role of the expert as advisor to a party in pre-proceeding stages⁹ and as part of a team during any form of dispute resolution is equally important to understand and appreciate. A recent case¹⁰ confirmed that the early involvement of an expert witness is quite acceptable. In the Court of Appeal Lord Justice Tomlinson put it this way:

Experts are often involved in the investigation and preparation of a case from an early stage. There is nothing inherently objectionable, improper or inappropriate about an expert advising his client on the evidence needed to meet the opposing case, indeed it is often likely to be the professional duty of an expert to proffer just such advice. … There is nothing improper in pointing out to a client that his case would be improved if certain assumed features of an incident can be shown not in fact to have occurred, or if conversely features assumed to have been absent can in fact be shown to have been present.

While, on the face of it, the Court of Appeal may be seen to be supporting early expert witness involvement and certainly the Court of Appeal specifically confirmed that expert witnesses do owe duties to their clients as well as to the court, there must always remain some hesitation in expert witnesses becoming too closely involved in the preparation of a claim. The overriding requirement for an expert is that he should be able to present his views impartially. His involvement within the claim preparation team must always have that in mind.

As a matter of practicality, if an expert witness oversteps this line and ventures into the land of becoming an advocate for one party, not only will his credibility within that case be significantly reduced but also his credibility in future cases.¹¹ Where the expert witness crosses the line and becomes not an independent and impartial advisor but an advocate, he is often referred to as being a ‘hired gun’. The perception of expert witnesses appearing as hired guns has done great damage to their credibility. Expert witnesses are well advised to always take a cautious approach and not be drawn into a fixed position.¹²

It is no part of the role of an expert witness to support blindly a position being adopted by the party instructing them. The essence of being an expert witness does indeed go back to the commentary of Lord Mansfield noted above that the expert opinion must be ‘deduced from all these facts’. It is therefore the expert witness’s duty and obligation to involve himself very carefully in all of the facts in order to draw a proper conclusion based on his expertise in that area. There is little value to be had from an expert witness who expects, for example, to be fed all the information he needs and is unwilling or unable to conduct any investigation on his own.

Understanding where the dividing line sits between advocating a position and reaching an independent and impartial view can be complex. It is no doubt the case that the more complex the factual problem and technical issues, the harder it is to see where that dividing line is. An expert witness who believes strongly in his view is not necessarily being an advocate for the party who adopts his position. The question is, who is leading that position? Is it the expert witness who has formed an independent view with the client adopting that as his position or the client adopting a position he would like to achieve and persuading an expert witness to support it? For expert and legal teams alike this is an area that needs constant and careful consideration. One false step and the expert’s credibility can be destroyed and an otherwise good case irreparably damaged.

While it is often easy to identify the ‘safe’ areas in providing expert evidence there is no doubt that expert witnesses often come under tremendous pressure to get as close to the advocacy line as possible. Again, however, what may appear as advocacy in the course of cross-examination may simply be the expert witness’s genuinely held impartial view which he defends vigorously. The longer the expert has been ...

Table of contents

• Cover
• Title page
• Copyright page
• Preface
• Acknowledgements
• Part 1
• Part 2
• Appendix 1: Useful Websites for Further Information and Common Abbreviations
• Appendix 2: Tables Comparing Rules for Different Types of Expert Involvement
• Appendix 3: Typical Tribunal Order for ‘Hot Tubbing’
• Index