What are common cases you are instructed for?
Construction cases can arise for many reasons but predominantly these revolve around delays to the works, the costs associated with those delays and the valuation of changes to projects after they have commenced. Increasingly, the extent of responsibility for the design of the works is, in my experience, becoming a key factor in construction disputes.
Is there anything you would change about the legal process, purely from your own perspective and from an expert point of view?
I think the most valuable part of the legal process from an expert’s point of view is the Expert Meeting. These meetings are typically instructed by the Judge or Tribunal and they offer the Experts the opportunity to discuss the case before the Experts prepare their full reports. Typically, once the Expert meetings have been concluded the Experts prepare a joint statement of the matters for which they agree and the matters which they disagree. The Experts then prepare a full report on the matters of disagreement. This way, the issues between the parties can often be reduced at an early stage.
Whilst this process is adopted in most construction cases it is not widely used in other cases. I think that this early stage meeting between experts would be of benefit to parties beyond the Technology and Construction Court.
What do you think is key to becoming a good Expert Witness?
Impartiality. The whole purpose of expert testimony is to provide the Court or tribunal with an independent opinion on certain technical aspects of a case. This overriding obligation of an expert cannot be understated. The expert is there to serve the tribunal rather than a party to the dispute.
How did you, or do you, train to be an Expert Witness?
Expert witnesses come from a huge range of professional backgrounds and cover all areas of technical and forensic knowledge. There are no formal qualifications to be called as an expert witness but suffice to say any individual called will be required to have expert knowledge and experience in the area to which they are asked to provide evidence.
That said, there is a considerable amount of legal and procedural matters that the Expert should understand and comply with. In respect of these obligations there are a number of formal training courses available, but I take regular courses with the Academy of Experts in London who offer comprehensive training. The Academy also offers an accreditation service for experts.
The process of being cross examined looks daunting.
It can be, and it probably should be. The experts are there to assist the tribunal and it’s important that their evidence is properly tested by the parties’ advocates.
However, so long as one has observed the duty of impartiality and prepared a thorough, complete and honest report, then there should be no concerns with being asked to explain the conclusions drawn under cross examination.
What are the key differences between acting as an Expert Witness and as a Party Representative?
The most crucial difference is that of impartiality. As a Party Representative, one is able to present the best possible case on behalf of a client. A particular argument may, for example, have a relatively small chance of being successful but, so long as it can sensibly be argued and it is supported by evidence, the Party Representative is able to seek to persuade the tribunal that it should be accepted.
When acting as an Expert Witness, however, one isn’t trying to persuade the tribunal. Instead, the duty is to explain the conclusions to be drawn. One has to present those conclusions which one considers to be correct as opposed to those which assist the position of one of the parties.
That being said, the core skills in both situations remain the same. Whether one is preparing a case on behalf of a client or whether one is preparing an independent Expert Report, the requirement is to consider the evidence and deploy best practice. Whether acting as a Party Representative or an Expert Witness, one is still acting as a quantity surveyor.
What are the biggest challenges facing Quantity Surveying Expert Witnesses at present?
In construction, adjudication has become the primary method of dispute resolution. There is, at the very least, a suspicion that parties are deploying evidence which is presented as independent Expert evidence which is often little more than a partisan document which seeks to support the position of one party rather than to assess evidence.
The lack of cross examination of Experts within adjudication, coupled with the potential for self-selection (and discarding) of relevant evidence can lead to the service of reports which do not, or which do not appear to, comply with the standards which would be expected during litigation proceedings.
Given the private nature of the adjudication process, it is difficult to see what could be done to combat the problem (or the perception of a problem). It may be that the professional institutions and the Academy of Experts could take the lead by calling in redacted reports from Adjudicators in order to test the quality of reports and build confidence in the use of Experts within adjudication proceedings.
Peter Phillippo LLM FRICS MCIArb MAE
Director
Tudor Rose Consultancy Limited
1 Adam Street,
London,
W2CN 6LE
Tel: +44 (0)20 3434 2070
Fax: +44 (0)20 7930 9923
Mobile: +44 (0)77 4894 7290
Email: peter@trconsult.co.uk
Web: www.trconsult.co.uk
Peter is a Chartered Quantity Surveyor and Fellow of the Royal Institution of Chartered Surveyors with significant experience within the Construction Industry serving employers, main Contractors and sub-contractors both within the UK and overseas.
He also has extensive experience dealing with bespoke construction and engineering contracts, both within the UK and internationally. His experience includes such issues as loss and/or expense, certification, forensic quantum analysis, assessment and apportionment of damage, contractual interpretation and procedural matters.
Peter has been instructed as Expert Witness in various disputes involving professional negligence, quantity surveying practice, quantum evaluation, and the assessment of damage and regularly assists both Counsel and solicitors with complex quantum issues.
Peter is a registered RICS Expert Witness on matters of Quantum, Claim Evaluation and Quantity Surveying Practice and is also an Accredited and Practicing Member of the Academy of Experts.
Peter has contributed regular articles to the Construction Law Journal, Contract Journal, and Quantity Surveying News and sat on the Governing Council of the Society of Construction Law for over six years.
