The guest speaker at this year’s joint meeting of the Society of Construction Law and Society of Construction Arbitrators was billed as a big wig: the new Lord Chief Justice of England, Lord Woolf. I squeezed in at the back of a packed hall at the Institution of Civil Engineers, the speaker just a dot on the horizon. It dawned on me that I was in the wrong hall; this man was on about cars. He couldn’t stomach Rolls-Royces, he preferred the nippy Mini. Damn it, this wasn’t Lord Woolf at all, it was Jeremy Clarkson. I made to go, but then the dot started talking about the revolution in litigation and arbitration. I stayed.
And I heard the speaker say something else. He acknowledged that the use of a single joint expert in construction litigation was controversial. You bet. Oh dear, oh dear, you bet. Let me come back to that disaster area in a moment.
The thrust of his speech was that, until 28 April 1998, litigation in England and Wales was in a state of crisis. Actually, it has been in a state of crisis since 1850. It has tried reform after reform, grandly described as “attempts to improve the machinery of justice”. And what always gets in the way is that those running the machinery cannot bring themselves to believe that the machine should serve the people; they think the machine should serve the machine.
You want evidence? Yesterday, my trial was booked to begin at 9.45am. The witnesses and parties arrived on time. “Ah,” said the court clerk, “please wait. A short matter is slotted in front of your one-day trial. Won’t take long.” Five hours later, everyone was told to go home and come back in two months’ time. The previous day in the High Court, two items were slotted in front of my one-day trial. We started an hour late. It is like one of those package holiday outfits that double-book hotels in the notion that some people will drop out. The machine is put first and it shouldn’t be.
As for the 28 April 1998 reforms, the speaker said we had reinvented the machine so that the costs would not be disproportionate to the size of the dispute. If you can get from A to B in a Mini, why use a Rolls-Royce? Why have a legal system that costs the earth to run when a 50 miles-per-gallon motor will do? Actually, I did not want a Roller and I do not want a Mini. I want some choice and something that works, that’s all.
The trick is to order one joint expert, who will be the court’s mercenary and be impartial. Sounds good; does not work
What is not working is this single joint expert. But judges are applying this Woolf reform willy- nilly. One judge told me that if I did not like his order for one expert, I should complain to Lord Woolf. So I am. He has got it wrong.
The error is to look at the role of the expert only through the eyes of a judge or arbitrator. What the judge wants is an impartial witness who will guide him through the intricacies of construction technology or expected standards of behaviour. He does not want a mercenary to spin him a line or bamboozle the court with science. Worse still is to have another expert mercenary on the other side, who bamboozles and spins a different line. So, the trick is to order one joint expert, who will be the court’s mercenary and be impartial. Sounds good; does not work. Cases don’t settle early. Instead, they go all the way and are umpteen times more expensive.
Look at it through the eyes of the advocate. Whether you like it or not, the expert is part of the team. He or she will work with the legal folk to get to the bottom of the technicalities. There will be a flow of information, dialogue, frequent phone calls and meetings. Ideas will flow and sometimes the expert will persuade his own team that the technical merits are against them. When he has an opponent expert, time and again they will reach joint agreements and cut out huge parts of a case, saving masses of cash.
But the single expert only plays solo. He cannot get joint agreements with anyone. And how can the legal team challenge the single expert? If something has bent or broken, how is the advocate supposed to know what questions to ask? Does the advocate engage a technical adviser to explain what the court-appointed expert is saying? If so, the other side will have to do the same, resulting in even higher costs.
Simple, everyday queries have to be thrashed out with an expert by phone immediately. But if I have to ask questions of an expert by post, with copies to my opponent, does that work? No. In practice, you just don’t bother. If anything is done, it is cross-examination by post, which is daft – I’ve tried it. It does not work, not in construction disputes.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or e-mail him on firstname.lastname@example.org.