The Expert Witness in Construction (E-Book) von Robert Horne

Preface ix

Acknowledgements xi

Part 1 1

1 Introduction 3

1.1 Introduction 3

1.2 What is expert evidence? 4

1.3 The expanding role of the expert witness 5

1.4 What makes a good expert witness? 7

1.5 What is an expert witness and what is an expert witness used for? 10

1.6 Duties of the expert witness 16

1.7 Use of expert evidence 19

1.8 Summary 21

2 Independence and Duties 23

2.1 Introduction 23

2.2 Duties of expert witnesses 23

2.3 Partiality and impartiality 26

2.4 Failings in obligations 28

2.5 Investigations 29

2.6 Conflict of interest 30

2.7 Those giving instructions 33

2.8 Summary nature of the conflicting duty 35

3 Roles in Different Forums 37

3.1 Introduction 37

3.2 Litigation 38

3.3 Arbitration 44

3.4 Adjudication 45

3.5 Mediation 47

3.6 Expert determination 48

3.7 Informal processes 49

3.8 Summary 50

4 Different Types of Expert 51

4.1 Introduction 51

4.2 The expert witness 51

4.3 The expert advisor 51

4.4 Tribunal-appointed experts 56

4.5 The single joint expert 62

4.6 Assessors 81

4.7 Expert determination 83

4.8 Expert evaluation 91

4.9 ICC expertise rules 92

4.10 The advocate and expert witness 94

5 Procedural Rules, Evidential Rules and Professional Codes 95

5.1 Introduction 95

5.2 Civil Procedure Rules 96

5.3 Domestic arbitration 105

5.4 International arbitration 112

5.5 The IBA Rules of Evidence 120

5.6 Professional institute rules 124

5.7 Summary 128

6 The International Dimension 129

6.1 Introduction 129

6.2 What is international? 130

6.3 General issues arising 130

6.4 Key differences in approach 131

6.5 International legal issues 134

6.6 International application of professional standards 135

Part 2 137

7 Selection and Appointment 139

7.1 Introduction 139

7.2 Pre-appointment 142

7.3 Availability 145

7.4 Expert witness interviews 146

7.5 Terms and conditions 150

7.6 Fees and getting paid 151

7.7 Instructions 154

7.8 Ending the appointment 161

7.9 Summary 164

8 Obtaining Information 165

8.1 Introduction 165

8.2 Litigation 166

8.3 Domestic arbitration 166

8.4 International arbitration 167

8.5 Getting started 169

8.6 Focusing in on the issues 172

8.7 Electronic disclosure 174

8.8 Further documents and disclosure 174

8.9 Other experts 175

8.10 Redfern Schedules 177

8.11 At the trial or hearing 178

8.12 Access to the site and property 179

8.13 Translation of documents 179

8.14 Other problem areas 180

8.15 The expert report 182

8.16 Summary 182

9 Writing Reports 183

9.1 Introduction 183

9.2 Where to start 184

9.3 Duty to the tribunal 186

9.4 Independent opinions 187

9.5 Writing the report 193

9.6 Structure, layout, contents 198

9.7 The experts qualifications 204

9.8 Use of assistants 208

9.9 All sources shown 212

9.10 Facts and instructions relied upon 214

9.11 Accurate and complete 217

9.12 Sampling 219

9.13 Instructions received 221

9.14 Joint briefs or terms of reference 223

9.15 Qualifications or ranges of opinions 225

9.16 Report conclusions 227

9.17 Statement of truth 227

9.18 Declarations 228

9.19 Questions on an expert report 230

10 Meetings of Experts 233

10.1 Introduction 233

10.2 Purpose 238

10.3 Timing 241

10.4 Agenda 243

10.5 How to record and report on the meeting 249

10.6 Producing a joint statement 252

10.7 Binding effect of experts agreements 258

10.8 Attendance of lawyers 264

10.9 Involving a tribunal expert/facilitator/manager 266

10.10 Attendance of the arbitrator 269

10.11 A change of expert 271

10.12 Conclusions 274

11 Giving Evidence 275

11.1 Introduction 275

11.2 Will oral evidence be taken? 277

11.3 Preparation before the hearing 279

11.4 Split hearings 285

11.5 Giving evidence at the hearing 288

11.6 Modern technology 291

11.7 Examination-in-chief 293

11.8 Cross-examination 294

11.9 Tribunal examination 297

11.10 Re-examination 298

11.11 In purdah 298

11.12 Hot tubbing 299

11.13 Tribunal- and jointly-appointed experts 306

11.14 Ex-parte proceedings 307

11.15 Post-hearing activities 308

12 Liability and Immunity 311

12.1 Introduction 311

12.2 How could liability arise? 311

12.3 General immunity as it has been historically 313

12.4 Erosion of the general position 314

12.5 Current expert liability (for what and to whom) 315

12.6 The facts ofJones v Kaney316

12.7 The main judgment 317

12.8 Issues for experts to consider 322

12.9 Likely future developments 322

Appendix 1 Useful Websites for Further Information and Common Abbreviations 325

Appendix 2 Tables Comparing Rules for Different Types of Expert Involvement 327

Appendix 3 Typical Tribunal Order for Hot Tubbing 345

Index 347

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.

Rob Horne is a Partner at Trowers and Hamlins, and has specialised in the resolution of construction and construction related disputes for over 20 years. He is a Chartered Arbitrator and adjudicator in addition to advising and representing clients in all forms of dispute avoidance and resolution. Rob's strengths lie in coordinating and managing significant and diverse teams across multiple disciplines and often across multiple jurisdictions. He is recognised for his ability to build and control highly effective teams, particularly those related to large scale infrastructure projects.

John Mullen is a chartered quantity surveyor and civil engineering surveyor, with over 30 years' experience in the construction industry. In that time he has been employed by contractors and professional practices and represented a wide range of clients. Co-author of the bookEvaluating Contract Claims, John has an international reputation that has led to over 60 appointments as an expert witness around the world, with sums in dispute ranging up to $760 million. One of the founders of Driver Group plc, John is currently Principal of its DIALES business.