“A large litigation support industry,” he began, “generating multimillion-pound fee income, has grown up among professionals such as accountants, architects and others, and new professions have developed such as accident reconstruction and care experts. This goes against all principles of proportionality and access to justice. In my view, its most damaging effect is that it has created an ethos of what is acceptable, which has in turn filtered down to small cases. Many potential litigants do not even start litigation because of the advice they are given about costs, and in my view this is as great a social ill as the actual cost of pursuing litigation.”
Woolf includes expert architects in his list; he could easily have also included expert structural or mechanical engineers and QSs, curtain walling, raised flooring, even hinges experts. I guess building litigation has more experts to the square inch of disputomania than any other commercial risk business.
Building cases are won or lost on the talent of experts. But the expense is huge. In any ordinary dispute about extensions of time and variations, each side will field at least two experts. Woolf thinks there is no point in having two QSs – let’s have a single “court-appointed” character instead. Not only is he fed up with partisan experts, but he reckons a single QS or architect or engineer expert will be impartial, unbiased, even-handed and fair-minded. Hmmm.
The idea is that the court will automatically assume a single joint expert will work unless there is a good reason not to do so. So it looks as though the first procedural quarrel will not be between parties, but with the court. My opponent and I might be convinced we need, say, an architecture expert each, but the judge is likely to ask why one paragon won’t do. Woolf says it will halve the ultimate bill. But I bet it won’t. There is a real danger that the bill will significantly increase if the court persists in having a so-called single expert. The idea sounds great from a judge’s point of view, but not from an advocate’s, nor is it so great when you realise that many disputes arise out of genuine differences of opinion.
Construction disputes are not always based on some clown trying to pull the wool over the next bloke’s eyes in order to squeeze a bob or two out of him. Frequently, an architect expresses his genuine view; frequently, another architect disagrees. The same goes for the QS. The fact that one QS values something at one price while another values it differently is not a leg-pull. There can be a whole range of opinions. And above all, those opinions should be tested, teased and cross-examined.
There is a real danger that the bill will significantly increase if the court persists in having a so-called single expert
It is very difficult to see how one expert can satisfy a court when mere opinion is at work. And if one court-appointed wallah is the only person to be cross-questioned in the witness box, you can bet that the ammunition to test him with will come from another expert. So we will have a big “E” in the witness box and a little “e” to feed counsel with ammo.
Time and time again I want an expert to help me decide whether or not we have a case at all. Rarely do we begin an action without first engaging experts to give advice. These people become part of a team, but they never forget that they owe an overriding duty to the court. They must never mislead the tribunal in an effort to bolster their payment’s case.
But hang on a minute; the whole Woolf idea is to not litigate at all or cave in before it goes too far or, if it does go all the way, to do so economically. So could one person realistically be the little “e” for both sides, then the big “E” for the court? Could an extension-of-time expert sit with the contractor while it is explained how stingy the job architect was with his minuscule extension? Could the same expert listen while the employer whinged about the contractor? And could the expert then produce charts and diagrams showing cause and effect to both sides, but, if they still quarrel, take it to the judge? I suppose so.
Come to think of it, you could even get rid of the judge. Let this expert decide once and for all. We could even give the process a special name … why not call it arbitration?
Tony Bingham is a barrister and arbitrator specialising in construction.