As construction projects get ever more complex, so do the disputes that arise when things go wrong. When a project is late or over budget, one of the parties to the contract may be liable for additional costs be it for the work itself or via loss and expense. But establishing the liability for those costs and identifying whether they should have been expected or if they are a result of problems on the project can be particularly complicated. This is where the quantum expert comes in.
The role of the expert is to analyse project data, taking into account the issues faced by both parties and form an opinion on how and where these costs should be allocated. This opinion is for the benefit of the tribunal and so the expert should come to it objectively – based only on the facts presented.
In this article we take a look at some of the key considerations a quantum expert should consider and how we at Overford approach the preparation of an expert report.
Part 35 – The Expert’s Gospel
Underpinning every expert report should be Part 35 of the Civil Procedure Rules. This sets out the governing principles for expert witnesses. The first question you may want to ask is, is an expert needed?
CPR 35.1 states : “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.”
This, and a further clause, 35.4(1) aims to limit the use of experts only to cases where they are deemed a necessity. This is because an expert is not a factual witness, their report and testimony is an opinion. However, due to the complexities in construction disputes, this evidence is often vital to getting to the heart of the matter.
So, having established you need an expert, what does their report need to include? The team at Bond Solon have helpfully summarised the Practice Directive here.
The number one rule for experts is to maintain independence. Your report should be based on the facts. Your ultimate duty is to the court or tribunal – not the client – despite the fact they may be paying your fees. It can be difficult to give clients answers they may not want to hear, but it is paramount to remain objective and impartial.
The case of the Ikarian Reefer sets out the responsibilities of experts. A maritime case, the vessel had run aground and set on fire. A lengthy court battle followed to establish whether the cause was deliberate or accidental. In this case, the parties appointed eight expert witnesses, and the case became increasingly complex, leading to the judge setting out explicitly what an expert’s duties should be. Matt Molloy helpfully summarises the details of the case in this article.
Sometimes, experts are brought into the process at an earlier stage and provide an early report on the matters on an ‘advice-only basis. Beware it is important to keep the rules in mind if you think you might be appointed at a later point. In one regularly quoted case, Walter Lilly vs Mackay, a firm of claims consultants were ordered to disclose all correspondence related to the dispute, including the advice given before the dispute had crystalised.
There have been numerous judgements which comment on the role of the expert. Solicitors Mills & Reeve have a helpful summary of the more recent judgements in this article. As you’ll see, tribunals do not take kindly to experts who do not follow the rules.
How to find an expert?
If you are looking for support from a quantum expert, how do you go about it? There are numerous registries such as The Lexology Index (formerly Who’s Who Legal) or of course, a good old fashioned Google search.
However, can you be confident that they have the skills, experience and independence you need? We’d suggest that asking around is often a good way. This industry is small, and chances are others will have come across experts you are considering at some point.
Often attending seminars where experts are talking can be helpful. If they can keep a room engaged, whilst explaining difficult technical topics, it may be an indication that they can perform well under cross examination.
Then meet with your potential expert and get a feel for who they are.
A word of caution: be wary of those who promise you results as we warned earlier, independence is paramount. An expert who can be honest with you about the weaknesses in your case is far more valuable to your team than one who acts as a hired gun.
In a recent case in Ireland, where there are similar requirements for impartiality of experts, Judge Noonan found that the expert whose evidence was at issue had “impermissibly donned the mantle of a partisan advocate in his efforts to discredit the claim of the plaintiffs.” He went on to say that there was an “abject failure” to comply with the most basic obligation of an expert, which is to be objective and impartial.
If you are looking for support with the production of quantum expert reports, get in touch with our team here, who have experience acting as single and joint quantum experts.
