Expert Witness in Construction

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.

• Preface ixAcknowledgements xiPart 1 11 Introduction 31.1 Introduction 31.2 What is expert evidence? 41.3 The expanding role of the expert witness 51.4 What makes a good expert witness? 71.5 What is an expert witness and what is an expert witness used for? 101.6 Duties of the expert witness 161.7 Use of expert evidence 191.8 Summary 212 Independence and Duties 232.1 Introduction 232.2 Duties of expert witnesses 232.3 Partiality and impartiality 262.4 Failings in obligations 282.5 Investigations 292.6 Conflict of interest 302.7 Those giving instructions 332.8 Summary – nature of the conflicting duty 353 Roles in Different Forums 373.1 Introduction 373.2 Litigation 383.3 Arbitration 443.4 Adjudication 453.5 Mediation 473.6 Expert determination 483.7 Informal processes 493.8 Summary 504 Different Types of Expert 514.1 Introduction 514.2 The expert witness 514.3 The expert advisor 514.4 Tribunal-appointed experts 564.5 The single joint expert 624.6 Assessors 814.7 Expert determination 834.8 Expert evaluation 914.9 ICC expertise rules 924.10 The advocate and expert witness 945 Procedural Rules, Evidential Rules and Professional Codes 955.1 Introduction 955.2 Civil Procedure Rules 965.3 Domestic arbitration 1055.4 International arbitration 1125.5 The IBA Rules of Evidence 1205.6 Professional institute rules 1245.7 Summary 1286 The International Dimension 1296.1 Introduction 1296.2 What is international? 1306.3 General issues arising 1306.4 Key differences in approach 1316.5 International legal issues 1346.6 International application of professional standards 135Part 2 1377 Selection and Appointment 1397.1 Introduction 1397.2 Pre-appointment 1427.3 Availability 1457.4 Expert witness interviews 1467.5 Terms and conditions 1507.6 Fees and getting paid 1517.7 Instructions 1547.8 Ending the appointment 1617.9 Summary 1648 Obtaining Information 1658.1 Introduction 1658.2 Litigation 1668.3 Domestic arbitration 1668.4 International arbitration 1678.5 Getting started 1698.6 Focusing in on the issues 1728.7 Electronic disclosure 1748.8 Further documents and disclosure 1748.9 Other experts 1758.10 Redfern Schedules 1778.11 At the trial or hearing 1788.12 Access to the site and property 1798.13 Translation of documents 1798.14 Other problem areas 1808.15 The expert report 1828.16 Summary 1829 Writing Reports 1839.1 Introduction 1839.2 Where to start 1849.3 Duty to the tribunal 1869.4 Independent opinions 1879.5 Writing the report 1939.6 Structure, layout, contents 1989.7 The expert’s qualifications 2049.8 Use of assistants 2089.9 All sources shown 2129.10 Facts and instructions relied upon 2149.11 Accurate and complete 2179.12 Sampling 2199.13 Instructions received 2219.14 Joint briefs or terms of reference 2239.15 Qualifications or ranges of opinions 2259.16 Report conclusions 2279.17 Statement of truth 2279.18 Declarations 2289.19 Questions on an expert report 23010 Meetings of Experts 23310.1 Introduction 23310.2 Purpose 23810.3 Timing 24110.4 Agenda 24310.5 How to record and report on the meeting 24910.6 Producing a joint statement 25210.7 Binding effect of experts’ agreements 25810.8 Attendance of lawyers 26410.9 Involving a tribunal expert/facilitator/manager 26610.10 Attendance of the arbitrator 26910.11 A change of expert 27110.12 Conclusions 27411 Giving Evidence 27511.1 Introduction 27511.2 Will oral evidence be taken? 27711.3 Preparation before the hearing 27911.4 Split hearings 28511.5 Giving evidence at the hearing 28811.6 Modern technology 29111.7 Examination-in-chief 29311.8 Cross-examination 29411.9 Tribunal examination 29711.10 Re-examination 29811.11 ‘In purdah’ 29811.12 ‘Hot tubbing’ 29911.13 Tribunal- and jointly-appointed experts 30611.14 Ex-parte proceedings 30711.15 Post-hearing activities 30812 Liability and Immunity 31112.1 Introduction 31112.2 How could liability arise? 31112.3 General immunity as it has been historically 31312.4 Erosion of the general position 31412.5 Current expert liability (for what and to whom) 31512.6 The facts of Jones v Kaney 31612.7 The main judgment 31712.8 Issues for experts to consider 32212.9 Likely future developments 322Appendix 1 Useful Websites for Further Information and Common Abbreviations 325Appendix 2 Tables Comparing Rules for Different Types of Expert Involvement 327Appendix 3 Typical Tribunal Order for ‘Hot Tubbing’ 345Index 347

Book reviewProceedings of the Institution of Civil Engineers: Management, Procurement and the Lawhttp://dx.doi.org/10.1680/mpal.14.00041"… The result of this collaboration is an excellent book providing a comprehensive coverage of the many facets of the work of an expert witness, both from a legal and practical viewpoint. The topics are covered in sufficient depth to be of real value and help to experienced prectitioners as well as being written in a style that is accessible and informative to the less experienced but aspiring expert or party representative, the parties themselves seeking to understand better what might be expected of an expert, and indeed anyone with an interest in the subject…. The joint authors appear to have collaborated closely to produce a comprehensive, coherent and valuable source of reference on the often misunderstood and different roles of the expert in construction disputes.-- Barry Manie