The Expert Witness in Construction

by Horne, Robert; Mullen, John

• ISBN13: 9780470655931
• ISBN10: 0470655933
• Edition: 1st
• Format: Hardcover
• Copyright: 2013-10-28
• Publisher: Wiley-Blackwell

Summary

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.

Author Biography

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 related to large scale infrastructure projects.

John Mullen is a chartered quantity surveyor and civil engineering surveyor, with over 30 years experience of 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.

Table of Contents

Part One

Chapter 1 – Introduction

1.1 Introduction

1.2 What Is Expert Evidence?

1.3 Expanding Role Of The Expert Witness

1.4 What Makes A Good Expert Witness?

1.5 What Is An Expert Witness And What Is An Expert Witness Used For?

1.6 Duties Of The Expert Witness

1.7 Use Of Expert Evidence

1.8 Summary

Chapter 2 – Independence And Duties

2.1 Introduction

2.2 Duties Of Expert Witnesses

2.3 Partiality And Impartiality

2.4 Failings In Obligations

2.5 Investigations

2.6 Conflicts Of Interest

2.7 Those Giving Instructions

2.8 Summary

Chapter 3 – Roles In Different Forums

3.1 Introduction

3.2 Litigation

3.3 Arbitration

3.4 Adjudication

3.5 Mediation

3.6 Expert Determination

3.7 Informal Processes

3.8 Summary

Chapter 4 - Different Types Of Expert

4.1 Introduction

4.2 The Expert Witness

4.3 The Expert Advisor

4.4 Tribunal Appointed Experts

4.5 The Single Joint Expert

4.6 Assessors

4.7 Expert Determination

4.8 Expert Evaluation

4.9 Icc Expertise Rules

4.10 The Advocate And Expert Witness

Chapter 5 – Procedural Rules, Evidential Rules And Professional Codes

5.1 Introduction

5.2 Civil Procedure Rules

5.3 Domestic Arbitration

5.4 International Abitration

5.5 The Iba Rules Of Evidence

5.6 Professional Institute Rules

5.7 Summary

Chapter 6 – The International Dimension

6.1 Introduction

6.2 What Is International?

6.3 General Issues Arising

6.4 Key Issues Differenes In Approach

6.5 International Legal Issues

6.6 International Application Of Professional Standards

Part 2

Chapter 7 – Selection And Appointment

7.1 Introduction

7.2 Pre-Appointment

7.3 Availability

7.4 Expert Witness Interviews

7.5 Terms And Conditions

7.6 Fees And Getting Paid

7.7 Instructions

7.8 Ending The Appointment

7.9 Summary

Chapter 8 – Obtaining Information

8.1 Introduction

8.2 Litigation

8.3 Domestic Arbitration

8.4 International Arbitration

8.5 Getting Started

8.6 Focussing In On The Issues

8.7 Electronic Disclosure

8.8 Further Documents And Disclosure

8.9 Other Experts

8.10 Redfern Schedules

8.11 At Trial Or Hearing

8.12 Access To The Site And Property

8.13 Translation Of Documents

8.14 Other Problem Areas

8.15 The Expert Report

8.16 Summary

Chapter 9 - Writing Reports

9.1 Introduction

9.2 Where To Start

9.3 Duty To The Tribunal

9.4 Independent Opinions

9.5 Writing The Report

9.6 Structure, Layout, Contents

9.7 The Expert’s Qualifications

9.8 Use Of Assistants

9.9 All Sources Shown

9.10 Facts And Instructions Relied Upon

9.11 Accurate And Complete

9.12 Sampling

9.13 Instructions Received

9.14 Joint Briefs Or Terms Of Reference

9.15 Qualifications Or Ranges Of Opinions

9.16 Report Conclusions

9.17 Statement Of Truth

9.18 Declarations

9.19 Questions On An Expert Report

Chapter 10 - Meetings Of Experts

10.1 Introduction

10.2 Purpose

10.3 Timing

10.4 Agenda

10.5 How To Record And Report On The Meeting

10.6 Producing A Joint Statement

10.7 Binding Effect Of Expert Agreements

10.8 Attendance Of Lawyers At Expert Meetings

10.9 Involving The Tribunal Expert, A Facilitator Or Manager

10.10 Attendance Of The Tribunal At The Meeting

10.11 A Change Of Expert During Or After Meetings

10.12 Conclusions

Chapter 11 - Giving Evidence

11.1 Introduction

11.2 Will Oral Evidence Be Taken?

11.3 Preparation Before The Hearing

11.4 Split Hearings

11.5 Giving Evidence At The Hearing

11.6 Modern Technology

11.7 Examination In Chief

11.8 Cross Examination

11.9 Tribunal Examination

11.10 Re Examination

11.11 Purda

11.12 Hot Tubbing

11.13 Tribunal And Jointly Appointed Experts

11.14 Ex-Parte Proceedings

11 .15 Post – Hearing Activities

Chapter 12 – Liability And Immunity

12.1 Introduction

12.2 How Could Liability Arise?

12.3 General Immunity As It Has Been Historically

12.4 Erosion Of The General Position

12.5 Current Expert Liability (For What And To Whom)

12.6 The Facts Of Jones And Kaney 

12.7 The Judgment

12.8 Issues For Experts To Consider

12.9 Likely Future Developments

APPENDICIES

1 Useful Websites for Further Information

2 Tables Comparing Rules for Different Types of Expert Involvement

3 Typical Order for Hot Tubbing