Involving an expert in dispute resolution can help your case - but make sure that they are experienced, a good communicator and can offer independent advice in the eyes of the court
Experts are widely used in the resolution of disputes in the construction industry. Delay analysis experts, experts to investigate defects and expert quantity surveyors are frequently in demand to provide an opinion on the quantum of a claim.
If a problem occurs on a project the use of an independent expert should be considered early. How robust an expert’s advice is will assist in determining a strategy to resolve the dispute and will ensure a party has a realistic appreciation of its position in any future negotiations.
The Society of Construction Law is currently carrying out a consultation on issues concerning the use of expert evidence and whether this can be improved. It has collated a detailed questionnaire asking for contributions from all sides of the industry. Following the consultation, the SCL plans to set out its conclusion and recommendations.
The expert’s role is to assist the judge on technical issues of which the judge has little or no experience
The report will be of interest because, although experts are often key to the success of a party’s claim or defence, the appointment of experts is not without its problems. A credible, competent and experienced expert can greatly bolster a party’s case and improve its chances of achieving a successful outcome.
However, it is crucial to appoint the right expert and manage the relationship - otherwise the appointment is unlikely to represent value for money and may adversely affect your case.
Firstly, it is important to ensure the expert has the necessary qualifications and experience to provide an opinion. Before selecting an expert you need to closely examine their CV to ensure they have the relevant technical skill and experience to advise on the issues.
They must also be able to clearly convey technical information to a decision maker and persuade that decision maker that your case is stronger than your opponent’s. Consequently, good communication skills and credibility are essential.
You need to ensure that you give them access to the site and all key documentation so they can carry out a detailed investigation of your position. The quality of the advice received will to a large extent depend on the accuracy of the information provided.
It is also important to scrutinise the opinion given by the expert and query any issues. Ensuring you have a strong case at the outset is imperative before you take any formal steps. Consequently, you need to be certain that the report represents a solid opinion that will stand up to scrutiny.
In formal proceedings, it is important to ensure the expert has previous experience of acting as an expert witness in the chosen forum. The procedural requirements and time pressures involved vary in litigation, arbitration and adjudication. Therefore, prior knowledge of the process will ensure the expert understands what will be required of him. It is also important to ensure that he has sufficient time to commit to the task. He will need to be flexible and available at key points in the timetable.
It is important to note that an expert in litigation proceedings has an overriding duty to the court. Their role is to assist the judge in the determination of technical issues of which the judge has little or no experience. Therefore, even though an expert receives instructions and is paid by a particular party, he must remain objective and independent.
Whatever purpose an expert is appointed for, you should ensure he is credible, a good communicator and someone you and your team can work with. Resolving disputes can be a lengthy process.
Ultimately, whether an expert justifies the costs involved will depend very much on the value and type of dispute and the quality and experience of the particular individual.
Alastair Young is a partner in the construction team at SNR Denton