The expert experience

Increasingly, building services engineers are called upon to provide expert evidence and advice to assist their clients in the resolution of disputes. This role carries with it a unique set of responsibilities and considerations which set it apart from the traditional client/professional relationship.

Those considering acting as an expert witness should first give some thought to what will be required of them. To assist, here are some answers to the more commonly asked questions.

Who can act as an expert?
Formal qualifications are not necessary nor a prerequisite to giving expert evidence. A person can give expert evidence provided he is skilled, and provided that such evidence is disclosed.

It is however most unlikely that those without appropriate qualifications will be instructed. It is common for institutions such as the RIBA, the ICE, the Academy of Experts, the Chartered Institute of Arbitrators or the Law Society, for example, to refer parties to persons on their books who they consider sufficiently qualified to be experts.

Thought should be given to whether your evidence will be appropriate to the case. The basic principles are that your evidence must be relevant to a matter in dispute; that you have expertise which is relevant to an issue on hand; and you must have experience, expertise and training. appropriate to the value, complexity and importance of the case. Also, you must be able to produce a report, deal with questions and have discussions with other experts and to attend the trial, if required. This process may take considerably more time than one might first imagine.

What is the role of the expert?
Essentially, the expert's job is to give evidence on matters of technical complexity outside the law which are necessary to assist the relevant court to enable it to fully understand the essential facts and matters in issue. However, because the construction industry uses a host of suitable options to resolve disputes in addition to litigation such as adjudication, arbitration, mediation and other alternative dispute resolution methods, your exact role will vary depending upon the context.

In none of the above are you required to act as a mediator between the parties or to trespass on the role of the court in deciding issues. However, in the case of an 'expert determination', as the name implies this is exactly what the expert is asked to do. This is a more specialised role and has a very different set of considerations which are not within the scope of this article.

A very important aspect of the expert witness' role is worthy of emphasis. Early on, the expert is required to assist his client in making a proper assessment of his case. In so doing he must be honest and objective. Indeed, you may get into hot water if you are not. The recent case of Pearce v Ove Arup and others is an example of a situation where an expert failed in this regard. In Pearce, the court held that the expert had failed to provide objective evidence that could have avoided a case which was founded in "pure fantasy". The court stated that: "[The expert] bears a heavy responsibility for this case ever coming to trial with its attendant cost, expense and waste of time."

Contrary to what your client may suggest (or want), as an expert your role is not to argue his case. Ultimately, you are a witness to the court and your evidence must be an independent product, uninfluenced by the exigencies of litigation.

What is the expert's duty?
An expert always owes a duty to exercise reasonable skill and care to the person instructing him and to comply with any relevant professional code of ethics.

However, when the expert is instructed to give or prepare evidence for the purpose of court proceedings, the expert's duty is to the court – even if this overrides any obligation to the person from whom he has received his instructions or from whom he has been paid.

The basic principles are encapsulated in Part 35 of the Civil Procedure Rules (CPR). The general obligations under Part 35 are to:

• Provide an independent opinion and not engage in an advocacy role.
  
• Confine his opinions to matters which are material to the dispute and only provide opinions on matters which lie within his expertise.
  
• Indicate those facts, literature or any other material on which he has relied in forming his opinion and indicate that his opinion is provisional where he considers that further information is required.
  
• Inform those instructing him without delay any change in his opinions on any material matter.

Where can I find out more?
In addition to reading the applicable rules, there is no shortage of useful guides to help you understand your obligations as an expert witness. Some courts have published there own guides which supplement the CPR for proceedings in those courts. The CPR Code of Guidance for Experts and Those Instructing Them (Academy of Experts, June 2001), the Code of Guidance on Expert Evidence (Expert Witness Institute, December 2001) are particularly recommended. In addition, TeCSA publish the Expert Witness Protocol. These guides may be accessed over the internet or obtained directly from the respective bodies.

Conclusion
As an expert witness you are providing evidence to the court and you are required to express an honest and objective opinion about the matters at hand. On the other hand, you still owe a duty to your client to carry out your services in accordance with the standard of your profession. The dilemma which sometimes arises is where your evidence does not necessarily suit your client's case. In these circumstances you would be wise to consult the relevant guidelines and rules applicable to the dispute to confirm your duty and, where necessary, to consult an independent solicitor for advice.