Professional Negligence in Construction
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CHAPTER 8
Experts, arbitrators and adjudicators
Experts, arbitrators and adjudicators
- Introduction 153
- Section A: experts in dispute proceedings 154
- Duties and Part 35 of the Civil Procedure Rules 155
- Retainer by instruction 158
- Vulnerabilities 158
- Section B: arbitrators 159
- Appointment 160
- Obligations 161
- Vulnerabilities 162
- Section C: adjudicators 163
- Appointment 163
- Obligations 164
- Vulnerabilities 165
- Section D: expert determination 165
- Appointment 166
- Obligations 167
- Vulnerabilities
Introduction
8.1 Construction professionals are not only to be found working on projects, but also playing important roles in dispute resolution as expert witnesses, or deciding construction disputes as arbitrators, adjudicators or in expert determinations. In these roles the professional is in a quite different position from the traditional employer-consultant relationship, and each role brings different challenges (and risks). 8.2 Expert witnesses have an essential role in almost all professional negligence disputes. Only rarely can a claim for negligence against a construction professional properly be brought or defended without the input of expert witnesses from the relevant discipline.1 Although a construction professional acting as an expert witness is instructed, and paid, by one of the parties to a dispute, their role is not simply to be a mouthpiece for that side (and experts who behave in such a way run the risk of being very publicly criticised by judges and having their evidence disregarded). 8.3 When appointed as arbitrators, adjudicators or in expert determinations, construction professionals are expected to decide disputes between parties. The use of people with industry-specific expertise to act as arbitrators has a long history, because the partiesPage 154
Section A: experts in dispute proceedings
8.4 As has been seen in , in any dispute that is likely to result in a claim that a construction professional has been negligent, an expert witness qualified in the appropriate discipline is likely to be needed at an early stage and almost certainly before such a claim can be pleaded. A construction professional accused of professional negligence (or, more likely, its insurer) will also want to retain an independent expert witness to assist with the preparation of a defence. This is necessary for the obvious reasons that, first, a defendant may find it difficult to deal dispassionately with the claim (and to see or accept that it has any merit) and, second, that in most cases a court or tribunal will lend more weight to the evidence of an independent expert witness than to the defendant who will, understandably, want to exculpate itself of blame. No matter what its level of expertise and experience, the defendant in most professional negligence claims must settle for being a witness of fact (that is, what it did and what happened) rather than being treated as an expert who can express an opinion as to whether the Bolam test has been complied with.2 8.5 This goes to the heart of the difference between “normal” and expert witnesses. Normal witnesses can give factual evidence, but are not generally allowed to express their opinion as to what conclusions should be drawn from those facts. That is because it is for the judge or tribunal to draw conclusions having first decided, on the balance of probabilities, what actually happened. By contrast, an expert witness gives evidence of its opinion as to what conclusions should be reached on the facts. 8.6 A simple example may assist. Suppose an engineer is accused of having negligently designed the piles for a warehouse. It is alleged by the claimant that this caused the floor of the warehouse to deflect and crack, necessitating repairs. In its defence, the engineer denies negligence and alleges that the damage was caused by the warehouse owner overloading the floor. The only evidence that the defendant engineer can personally give is as to the piling calculations that it performed and the inspections of the piling works that it undertook (if any). This is factual evidence. The engineer is not allowed to go on to say that, in its opinion, (a) a reasonable body of engineers would have done the same thing and (b) therefore, the engineer complied with its obligation of reasonable skill and care. This is opinion evidence, and the realm of the expert witness. The expert witness is there to give its opinion of professional practice and whether the issues with the floor were caused by the piling or are more likely to have been caused by something else (in this case, overloading by the owner). 8.7 Expert witnesses are required because judges and tribunals, no matter how experienced in construction matters, do not have the expertise needed to assess what constitutesPage 155
- • Advise the legal team, who usually will not be qualified in the relevant construction discipline, as to the technical grounds for advancing or defending the claim. This information will be used for the Letter of Claim (or Response) and, in due course, for the pleadings.
- • If the claim progresses, prepare an “expert report”. This sets out the expert’s opinion as to whether, on the facts, the claim shows that the defendant breached its duty of care and what the consequences were. Unsurprisingly, expert reports tend to reflect the case advanced by the instructing party. This is not (or, at least, should not be) mere partisanship: it should be obvious that, if a party cannot convince its own expert that its case is good, the claim is likely to be dropped or settle. Further, for reasons explained below, experts who simply act as advocates for their “side” run the risk of breaching their duty to the court and being severely and (and very publicly) criticised.
- • The court will usually order that the experts for each party hold a “without prejudice” meeting (without lawyers present) to see if they can reach agreement on disputed matters within their area of expertise. An output of this meeting will be a list of agreed issues and issues where the experts do not agree, usually with comments from each expert as to why agreement has not been reached. This is encouraged by the courts because it is hoped that, by reducing the number of issues in dispute – or at least narrowing the issues that are disputed, the trial can be simplified with an associated reduction in time and costs.
- • Possibly, prepare a supplemental report following the joint meeting, or if new information comes out.
- • If necessary, give evidence at trial, including being cross-examined by the other parties’ legal representatives.
Duties and Part 35 of the Civil Procedure Rules
8.9 The Civil Procedure Rules (the “CPR”) are the rules of the civil (non-criminal) courts in England and Wales. They control all civil proceedings in the County Court and the High Court, where almost all professional negligence actions in England and Wales will be tried.5Page 156
Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.