Construction and engineering experts: 12 reasons to beware

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

The resolution of construction and engineering disputes often relies heavily on independent expert witnesses in quantum, programming and technical disciplines. The recent case of Van Oord UK Limited and SICIM Roadbridge Limited v Allseas UK Limited [2015] EWHC 3074 (TCC) provides a salutary lesson as to why experts and those instructing them need to be very careful in the appointment of experts and the preparation of expert reports and evidence.

The facts of the case

The Claimants appointed Mr Lester and the Defendant appointed Mr Kitt as quantum experts. Mr Justice Coulson was highly critical of the evidence given by Mr Lester despite acknowledging that there were significant personal factors that contributed to his performance. He was under a lot of stress and he had not previously prepared an expert report or given evidence.

Mr Justice Coulson gave no less than 12 reasons why the evidence provided by Mr Lester was "entirely worthless".

The criticisms in the judgment provide useful guidance on what the courts expect of experts, including:

1. Not taking the pleaded case on face value – experts should check the underlying documents themselves;
2. Considering all of the witness statements produced by both parties;
3. Being prepared to value claims on alternative bases including at less than 100 per cent of liability;
4. Have cognisance of actual costs where possible rather than relying on made up or calculated rates;
5. Consider points raised by an opposing expert and address them;
6. Be certain that they can stand by all parts of their reports having themselves verified the documents and evidence relied upon;
7. Draft reports in a clear way, which can in no way be misleading or misunderstood;
8. Review all documents referred to and appended to the reports;
9. Ensure that all views expressed are the experts' own view, otherwise attribute the views to others;
10. Be clear as to what documents and analysis have been produced by others and the extent to which they have been verified and adopted by the expert;
11. Challenge what they are told by others;
12. Consider alternative methods of calculations (such as reasonable rates) and alternative approaches which may not have been pleaded.

Comments

The integrity of an expert witness is paramount; even the smallest suggestion that an expert is partial or has failed to exercise the utmost of independence and thoroughness is fatal. In this case, it seems that Mr Lester's lack of experience translated into a significant lack of thoroughness which led to his evidence being entirely discredited.

The level of care and tenacity required of an expert is much higher than that which might be anticipated by the uninitiated. Working with or as an expert can be very rewarding and interesting, but the role of expert requires different skills to those of a highly successful quantity surveyor, planner or engineer.

Anyone considering expert work should not be discouraged, but need to go into it with their eyes open and a full appreciation of what the role entails and an awareness of the level of scrutiny which can be expected on cross examination. In turn, this dictates the required level of preparedness and thoroughness.

Those clients and solicitors appointing experts should also consider the aptitude of the candidate not only for the technical task in hand, but for the rigours of the dispute resolution process also.