Expert Witness – Appointments & Role.

Briefing Notes for Expert Witnesses in Construction Matters

1. Introduction to Expert Evidence (Civil Procedure Rules – CPR Part 35)

  • Role of an Expert: An expert witness is an individual who provides opinion evidence based on their expertise in a particular field. In construction matters, this could range from structural engineering to project management.
  • Duty of the Expert: Under CPR Part 35, the expert’s primary duty is to the court, not to the party that instructs them. This duty supersedes any obligation to the client who may have engaged them.
    • Key Principle: Experts must assist the court in reaching the right decision, even if that means giving evidence that is unfavourable to the party instructing them.

2. Appointment of Expert Witnesses

  • Single Joint Experts: The court may appoint a single joint expert for both parties, which is common in construction disputes to reduce costs and avoid conflicting opinions.
  • Party-Selected Experts: If each party appoints their own expert, the court may still decide to instruct a single joint expert if the issues are considered too complex.

3. Expert Reports

  • Content of the Expert Report: The expert’s report must be clear, concise, and based on a thorough understanding of the subject matter. It must address the instructions provided and must not exceed the limits of the expert’s expertise.
    • A typical expert report includes:
      • Expert’s qualifications and experience.
      • A statement of the expert’s duty to the court.
      • Details of the instructions received.
      • The factual background to the case.
      • The expert’s opinion, with reasons for that opinion.
      • Any documents or materials relied upon.
      • A clear summary of the conclusions.
  • Statement of Truth: The report must be signed with a statement of truth, confirming that the expert’s report is true and complete to the best of their knowledge.
    • Example Statement: “I believe that the facts stated in this report are true.”

4. The Role of the Expert in Court

  • Giving Oral Evidence: Experts may be required to give oral testimony during the trial. This involves answering questions from both the parties’ legal representatives and possibly the judge.
    • Important: Experts must remain impartial and avoid becoming advocates for the party instructing them.
  • Cross-Examination: The opposing party’s lawyer may cross-examine the expert to challenge the validity or reliability of their opinions. An expert should be prepared for rigorous questioning, particularly in complex construction matters.

5. Expert’s Duty to the Court

  • Impartiality and Independence: The expert must not act as an advocate for the party instructing them. They must provide an opinion based on their professional expertise, even if it is contrary to the instructions given.
  • Avoiding Conflict of Interest: The expert must not have any personal interest in the outcome of the case, as their role is purely to assist the court.

6. Preparing for the Case

  • Instructions and Documents: Before preparing a report, experts should carefully review the instructions from the party instructing them, as well as all relevant documents and evidence. This might include contracts, specifications, construction plans, and correspondence.
  • Clarity of Opinion: Experts should ensure that their opinions are clearly articulated and easily understood by those without specialist knowledge. Use of jargon or overly technical language should be avoided unless necessary.
  • Review of Expert Evidence: The expert should be prepared to explain their methodology in reaching conclusions and be able to justify their opinions with the evidence.

7. Expert’s Evidence and Disclosure

  • Disclosure of Documents: Experts must disclose all documents they have relied upon in forming their opinions. This ensures transparency and fairness.
  • Joint Statements: In construction disputes, especially complex ones, experts from both sides may be required to meet and prepare a joint statement summarizing the areas of agreement and disagreement. This can help streamline the issues for the court.

8. Expert’s Liability

  • Professional Duty: Experts can be held liable for providing negligent or misleading evidence. If an expert’s opinion is found to be false or negligent, they could face professional disciplinary actions or legal claims for damages.
  • Professional Indemnity Insurance: It’s advisable for expert witnesses to hold professional indemnity insurance to protect against any potential claims.

9. Costs and Fees

  • Fee Agreements: Experts should ensure that their fee agreements are clear and agreed upon in advance with the instructing party. This should include fees for preparation, attendance at court, and any additional work that might arise.
  • Court Approval of Fees: The court will scrutinize the expert’s fees to ensure that they are reasonable and necessary. Excessive charges may be disallowed.

10. Continuing Professional Development (CPD)

  • Keeping Skills Current: Construction law and practices evolve over time, so an expert should ensure that they continue to maintain and update their knowledge and skills to provide the most relevant and accurate opinions.

11. Potential Challenges

  • Challenging Expert Evidence: In some cases, the opposing party may seek to exclude expert evidence on the grounds of its reliability or relevance. It is vital for experts to maintain their credibility and avoid engaging in biased or unreliable practices.

Key Takeaways

  1. Impartiality: The expert’s duty is to the court, not to the instructing party.
  2. Clear Reporting: Expert reports must be thorough, concise, and transparent.
  3. Expert Testimony: Be prepared to give oral testimony and withstand cross-examination.
  4. Professional Responsibility: Be aware of the potential legal and professional consequences of negligent or biased expert evidence.
  5. Collaboration: In complex construction cases, joint statements with the other side’s expert can help clarify the issues.

These briefing notes should provide a solid foundation for an understanding of what an expert witness does in relation to construction matters under the Civil Procedure Rules. The expert must understand their responsibilities fully to avoid any legal pitfalls and to assist the court as efficiently as possible.