The Expert Witness in Construction

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.

Autorentext

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 book Evaluating 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.

Inhalt
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 expert's 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 &l...