Commercial Property Focus - May 2010
I’m Not an Expert…Get Me Out of Here
The expression “vagaries of litigation” can
cover a multitude of matters. There are many things which can
go wrong in a court case and turn a strong case into an ultimately
unsuccessful one - and the most frequent of these is when a witness
fails to come up to proof. More and more “non-expert experts”
are taking to stand in the Technology and Construction court, and
often it is their contribution that jeopardises an otherwise strong
case, racking up extra costs in the process. Although it may
seem so obvious as not to require stating, one of the most
important steps firms can take when entering into litigation
is to identify properly their expert witness. An expert’s
opinion might not always be fully supportive of your case but it
will have no value at all if the expert is not an expert in the
filed in which expert evidence is required.
It seems obvious that if you require expert
evidence on mechanical and electrical engineering matters you do
not ask a quantity surveyor to supply it. Equally, you would
not instruct an architect to give evidence on structural
engineering. You may suppose that an expert would simply not
take on a case where they did not have the necessary
expertise. However, work is hard to turn down at
the moment, and there are recent tales of experts being appointed
to prepare reports and give evidence in circumstances where they
were simply not qualified to do so. This may seem almost
comical, but the damage caused to a case is no laughing matter, and
it brings discredit upon the legal system in the eyes of its users
and the public.
The risk of appointing a non-expert expert is
clearly reduced by appointing someone who has successfully done the
job for you before. Furthermore, it is possible to “take up
references” on experts by contacting those who have used them, and
asking a solicitor or barrister for their opinion on any experts
they may have used for similar cases to yours. If the other
side finds out that the person who has been called to give expert
evidence in a certain field actually operates in an entirely
different one, then your position will be seriously dented.
Even if your expert’s field of knowledge is
relevant to your case, your worries may not be over. The
financial attraction of being called as a witness means that many
become full-time experts – and spend so much time in court
discussing their field of expertise that they lose touch with the
industry. The credibility of experts has been attacked on
many occasions on the basis that they have lost touch with the
practices of the field in which they are giving evidence. So
it is important to take the time to check that your expert has
recent in-depth experience of the issues in hand. This could
be the very thing that secures victory for your party.
An unfortunate arrangement that has been seen
on numerous occasions is when parties retain an expert as a “hired
gun” acting not as expert should, but as advocate for a stated case
and position. In today’s circumstances, where many cases
settle before trial, the threat of parties retaining such an expert
is greatly increased as they believe that the risk of putting a
dodgy expert in the box is offset by the potential advantages
gained from their performance in the pre-trial
stage.
An expert’s duties should always be to the
tribunal and not to the party instructing them. Judges and
arbitrators are more than sufficiently experienced to identify
whether an expert has the relevant expertise and is acting as an
advocate rather than an expert. The best advice for parties
appointing an expert is to choose one who is experienced in the
relevant field, who still retains a fresh understanding of the
issues affecting their particular industry and who understands and
will comply with their obligations to the tribunal. Indeed,
if an expert does not make this expressly clear when they are first
brought on board, there should be some cause for
concern.
Paul Donnelly is a Partner in the
Construction Team at Weightmans LLP paul, donnelly@weightmans.com
This article first appeared in Building magazine on 15
January 2010.