06/06/2016
The complex issues certain construction disputes can give rise to means the opinion of expert witnesses are often required in cases resolved both through Alternative Disputes Resolution (ADR) and litigation.
But is an expert witness always required? And if they are, what are their duties, both to the court and the party relying on the evidence they provide?
This guide is designed to provide a brief overview to the law surrounding expert witnesses in construction cases. For more in-depth information, please phone our office on 0207 993 6960.
What is an expert witness?
An expert is defined as a person whose experience and knowledge in a particular field is beyond what is expected of a layman. An expert witness makes his or her knowledge available to the court or other judicial or quasi-judicial body, to help it understand the issue before it and reach a just and reasoned decision.
An expert witness is paid for the time taken to form an opinion, but crucially, not for the opinion given.
What is expert evidence?
An expert’s evidence is opinion evidence, which is different from the evidence a lay person gives, which is evidence of fact; For example, if there is a dispute between the owner of a building and the company who constructed the premises as to the cause of certain defects, a lay person can state what the defects are; however, an expert will provide an opinion as to what caused the defects to occur.
What are the duties of an expert witness?
Under the Civil Procedure Rule (‘CPR’) 35.3, an expert is under a duty to assist the court on matters within his or her area of expertise. That duty overrides any obligation to the party instructing him or her.
In the case of National Justice Compania Naviera SA v Prudential Assurance Co ('the Ikarian Reefer') [1993] 2 Lloyds Rep 68, Mr Justice Cresswell provided classic guidance as to the duties of an expert witness. He stated that:
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expert evidence should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the demands of litigation
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an expert witness should provide independent assistance to the court by way of an objective unbiased opinion in relation to matters within his expertise
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an expert witness should never take on the role of an advocate
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an expert should state the facts or assumptions upon which his opinion was based without omitting any consideration or material fact which could detract from his concluded opinion
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an expert witness should make clear when a question or issue falls outside the scope of his expertise
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if an expert’s opinion is not properly researched because he considers insufficient data is available, then, this must be stated with an indication that he opinion is, in such circumstances, no more than provisional
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if an expert witness changes his view, then, such a change of view should be communicated, through the legal representatives, to the other side without delay and, where appropriate, to the court
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all materials referred to in an expert’s report, such as photographs, plans, calculations, analyses and the like, must be provided to the opposite party at the same time as the exchange of the report
What if an expert fails in their duty?
Guidance for the Instruction of Experts in Civil Claims 2014: The Civil Court Practice 2015 (The Green Book) states in paragraph 15 that:
‘Experts should be aware that any failure to comply with the rules or court orders, or any excessive delay for which they are responsible, may result in the parties who instructed them being penalised in costs, or debarred from relying upon the expert evidence…'.
Failure to comply with the duties under part 35 of the CPR may result in diminished weight being given to the evidence provided by the expert.
Can I call an expert witness in an Adjudication?
Often expert evidence is not needed in Adjudication; however, expert evidence may be required where necessary to prove the case (such as in complex claims for extensions of time and other matters in which the adjudicator will need to determine questions of expert opinion and evaluation).
If the referring party wishes to rely on expert evidence, it should be enclosed with the Referral Notice. The Responding Party should enclose any expert evidence with the Response.
Is an expert witness always required?
The courts have discretion over whether expert evidence is required or permissible. The party seeking to use an expert witness is responsible for proving that the expert’s evidence is needed to assist the court in making a decision.
In cases of professional negligence, there is a presumption that expert evidence is required.
Where the amount of money at stake in a claim is nominal or where mediation is being pursued as a resolution process, it may be prudent from a costs perspective not to appoint an expert witness immediately.
However, parties must strike a balance because if a claimant were to reject use of an expert or unnecessarily delay, without good reason, the appointment of an expert, the case may be stuck out by the court:
In ACD (Landscape Architects) Ltd v Overall [2012] EWHC 100 (TCC),140 ConLR 82 the court held:
‘… It is open to the court to strike out allegations of professional negligence which in its judgement would have to be supported by expert evidence to stand any realistic prospect of success in circumstances in which the party making such allegations makes it clear that it has no intention of obtaining such evidence.’
Balancing the need for expert witnesses against the costs involved and the stage in which the dispute is at can be tricky. An experienced lawyer who specialises in complex construction cases will be able to guide you as to the type of expert to engage and when to employ them.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. If you would like to discuss limiting your liability under a construction contract, please phone us on 0207 993 6960.