ARTICLES AND PAPERS

The Relative Benefits of Expert Determination in Construction Disputes: A Smarter Path to Resolution

In the complex world of construction, disputes are an unfortunate reality. Disagreements between parties can lead to protracted legal battles, causing significant financial losses and strained relationships. However, there is a growing alternative to traditional litigation or arbitration: Expert Determination. This article explores the relative benefits of utilizing Expert Determination as a preliminary step in construction disputes.

Julian P B Smith 8th July 2023

What is Expert Determination?

Expert Determination is a voluntary, private, and binding process used to resolve construction disputes. It involves the appointment of an impartial and qualified expert, chosen specifically for their expertise in the subject matter of the dispute. The expert, commonly referred to as the "Expert Determiner," reviews the evidence, applies their specialized knowledge, and makes a binding decision on the matter in question.

The Royal Institution of Chartered Surveyors (RICS) defines Expert Determination as "a process for the determination of a dispute by an independent third party, who is chosen by the parties." The RICS further emphasizes that Expert Determination is a flexible and efficient alternative to litigation or arbitration, offering a faster resolution with reduced costs.

Scope of Expert Determination:

The Expert Determiner's role is focused on determining the dispute in question based on their expertise, rather than adhering strictly to legal procedures. The Expert Determiner has the power to consider technical, contractual, and industry-specific factors in reaching a decision. They can consider evidence, examine documents, and may even visit the disputed site if necessary.

However, it is crucial to note that an Expert Determiner does not have the authority to rule on matters of law. They cannot decide issues that require a legal interpretation or address matters beyond their expertise. For such matters, parties may still need to resort to litigation or arbitration.

Non-Enforceability of Expert Determination:

Unlike court judgments or arbitral awards, Expert Determination is generally not enforceable by law. However, this does not undermine its value in dispute resolution. Expert Determination serves as a valuable tool to prevent parties from making ill-informed decisions to proceed to litigation or arbitration. Its non-binding nature encourages parties to find a mutually agreeable settlement based on the expert's decision.

Parties who engage in Expert Determination benefit from the opportunity to obtain an expert opinion on the dispute's merits. This enables them to assess their positions, evaluate potential outcomes, and make informed choices before proceeding to more formal and costly dispute resolution processes. By avoiding unnecessary litigation or arbitration, parties can save time, costs, and preserve their business relationships.

Benefits of Expert Determination:

Despite the general unenforceability of Expert Determinations, the process does have some distinct benefits, as listed below:

Speedy Resolution: Expert Determination offers a more expeditious resolution compared to litigation or arbitration, which can be lengthy and time-consuming. Parties can expect a faster decision from the Expert Determiner, allowing them to move forward promptly. The streamlined process allows for a quicker resolution of the dispute, minimizing disruption to ongoing projects and reducing delays.
Cost Efficiency: Expert Determination can significantly reduce costs associated with disputes. As the process is less formal and streamlined, parties can save on legal fees, expert witness expenses, and administrative costs. The absence of court or arbitration fees and the simplified procedural requirements make Expert Determination a more cost-effective option for resolving disputes.
Industry Expertise: The appointment of a specialist Expert Determiner ensures that the dispute is evaluated by someone with a deep understanding of the specific technical aspects involved. This leads to a more accurate and reliable decision. The Expert Determiner's expertise can be particularly valuable in complex construction disputes where specialized knowledge is essential for an accurate resolution.
Preserving Relationships: By opting for Expert Determination, parties can maintain a more amicable relationship throughout the dispute resolution process. The informal nature of Expert Determination encourages cooperation and allows for a less adversarial approach. Parties can actively participate in the process, contribute their perspectives, and work towards a mutually agreeable solution. This collaborative approach can help preserve business relationships and pave the way for future collaborations.
Confidentiality: Expert Determination proceedings can be conducted confidentially, preserving the privacy of the parties involved. This can be particularly valuable in cases where sensitive commercial information or trade secrets are at stake. Parties can discuss the details of the dispute and potential resolutions without the fear of public disclosure, maintaining confidentiality and protecting their business interests.
Flexibility: Expert Determination offers greater flexibility compared to formal legal proceedings. The parties have the freedom to shape the process according to their specific needs and requirements. They can agree on the Expert Determiner's qualifications, procedural rules, timelines, and even the scope of the dispute. This flexibility allows parties to tailor the process to suit the complexities and nuances of their particular dispute.
Certainty and Finality: Expert Determination provides parties with a final and binding decision on the dispute. The Expert Determiner's decision is not subject to further review or appeal, offering a sense of certainty and closure. This finality can provide parties with the confidence to move forward and focus on their core business activities without the lingering uncertainty associated with unresolved disputes.

Limitations of Expert Determination:

As detailed above, Expert Determination offers numerous benefits; however, it does have its limitations. As mentioned earlier, Expert Determination cannot address legal issues or matters beyond the expertise of the Expert Determiner. If legal interpretations or remedies are required, parties may need to resort to litigation or arbitration. It is crucial to carefully assess the nature of the dispute and determine whether Expert Determination is suitable for the specific circumstances.

Conclusions:

Expert Determination offers significant benefits as an alternative dispute resolution method in construction disputes. Its streamlined and specialized approach allows for a faster, cost-effective, and expert-led resolution. By engaging in Expert Determination, parties can make informed decisions, preserve relationships, and avoid the expense and uncertainty associated with traditional litigation or arbitration.

While Expert Determination is not generally enforceable, its value lies in the prevention of parties from making ill-informed decisions to proceed to more formal proceedings. Parties can leverage the expertise of an impartial third party to assess the merits of their dispute, potentially leading to mutually agreeable settlements. As construction disputes continue to rise, considering Expert Determination as a preliminary step can provide a smarter and more efficient path to resolution in the construction industry.

Julian P B Smith

8th July 2023

Expert Witnesses: Roles and Responsibilities, Ensuring Impartiality, and Avoiding Expert Battles

When dealing with clients who, perhaps, are not too familiar with formal dispute resolution practices, there is sometimes a misconception in the appointment of an Expert Witness, that they are hiring someone who will be “fighting their corner” or acting as a professional advocate for their version of events or claims. The following article seeks to dispel that misunderstanding and provide an outline as to what an Expert Witness is, what their respective duties are to those who appoint them, and the tribunal in which they are to present their evidence.

This article is based on the RICS Professional Guidance, UK: "Surveyors acting as expert witnesses Client Guide" 4th edition and refers to English cases. However, the general principles are substantially common to other jurisdictions and therefore can be applied to most international settings.

Julian P B Smith, 28th June 2023

Expert Witnesses: Roles and Responsibilities, Ensuring Impartiality, and Avoiding Expert Battles

Introduction:

In the complex world of construction litigation and arbitration, Expert Witnesses play a pivotal role in assisting the court or tribunal in understanding technical matters and providing impartial opinions. Under English law, Expert Witnesses are bound by a set of responsibilities and duties, which prioritize the interests of the court or tribunal over those of their clients. This article aims to delve into the roles and responsibilities of an Expert Witness under English law, with a particular emphasis on the Expert Witness's duty to the court or tribunal, the level of expertise expected in their field, and the importance of preventing expert battles. Throughout the discussion, relevant case law will be referenced to provide a comprehensive understanding of these important principles, considering both litigation and arbitration proceedings. Additionally, we will incorporate salient points from the RICS Professional Guidance, UK: "Surveyors acting as expert witnesses Client Guide" 4th edition (hereinafter, referred to as the RICS Guide).

The Role of an Expert Witness:

An Expert Witness is appointed to assist the court or tribunal by providing independent, unbiased opinions based on their specialized knowledge and expertise. Their role is to provide an objective assessment of technical matters that are beyond the understanding of the judge, jury, or arbitrator. The appointment of an Expert Witness is governed by the Civil Procedure Rules (CPR) Part 35 in England and Wales for litigation proceedings, while arbitration proceedings may follow the provisions of the Arbitration Act 1996 or institutional rules such as those provided by the International Chamber of Commerce (ICC) or the London Court of International Arbitration (LCIA).

Duty to the Court or Tribunal:

The primary duty of an Expert Witness is owed to the court or tribunal, and their overriding obligation is to assist impartially. This duty was firmly established in Jones v Kaney [2011] UKSC 13, where the Supreme Court held that Expert Witnesses owe a duty of care to the court or tribunal rather than their client. The same principles apply to arbitration proceedings, where Expert Witnesses owe a duty of impartiality to the arbitral tribunal and the process as a whole. The RICS Guide emphasizes that Expert Witnesses must act independently and impartially, providing unbiased opinions based on their expertise and the evidence presented.

Expertise and Knowledge:

Whilst Expert Witnesses are expected to possess a high level of knowledge and expertise in their respective fields. They do not have to be the top experts in their field, but they should have sufficient knowledge, qualifications, training, or experience to provide their opinion effectively. The case of Kennedy v Cordia [2016] UKSC 6 emphasized that Expert Witnesses should have the necessary expertise to assist the court or tribunal, without requiring them to be the foremost authorities in their field. The focus is on their ability to provide objective and reliable opinions based on their specialized knowledge.

The RICS Guide stresses the importance of selecting an Expert Witness who possesses the appropriate expertise and has a thorough understanding of the subject matter.

Avoiding Expert Battles:

It is essential to prevent litigation or arbitration proceedings from turning into battles between Expert Witnesses. The court or tribunal expects the parties to work collaboratively and engage in a constructive manner when presenting expert evidence. The case of Merkin v RBS [2017] EWHC 667 (Ch) highlighted the importance of avoiding adversarial expert evidence, encouraging a more cooperative approach.

Similarly, in arbitration proceedings, the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration provide guidance on preventing excessive reliance on expert battles and promoting the efficient resolution of disputes. The RICS Guide emphasizes the need for collaboration and effective communication between Expert Witnesses, legal teams, and the court or tribunal.

Duties of an Expert Witness:

In addition to the duty to the court or tribunal, Expert Witnesses have various other responsibilities:

a. Duty to Provide Impartial Opinions:

Expert Witnesses must provide impartial opinions based on their expertise and the evidence before them. Their analysis should not be influenced by the interests of their clients and should maintain professional objectivity throughout the proceedings. The RICS Guide highlights the importance of independence and impartiality for Expert Witnesses.

b. Duty to Disclose Instructions and Conflicts of Interest:

Expert Witnesses are required to disclose any instructions they have received and any potential conflicts of interest that may affect their impartiality. This includes any previous involvement in the case or any relationships with the parties involved. The RICS Guide emphasizes the importance of full and transparent disclosure to maintain the credibility and integrity of Expert Witness testimony.

c. Duty to Prepare Clear and Concise Reports:

The RICS Guide provides guidance on the preparation of Expert Witness reports. It highlights the importance of clear and concise reports that address the specific issues raised by the court or tribunal. The report should be written in plain language, avoiding jargon or technical terms that may confuse or mislead the reader.

d. Duty to Assist the Court or Tribunal Effectively:

Expert Witnesses have a duty to cooperate with the court, legal teams, and other experts involved in the proceedings. They should attend court hearings or arbitration hearings, respond to requests for information or clarification promptly, and provide assistance as required to ensure the smooth progress of the case. The Expert Witness's primary objective is to assist the court or tribunal in understanding technical matters and reaching a fair and just resolution.

Conclusion:

The role of an Expert Witness in construction litigation and arbitration is crucial in helping the court or tribunal understand complex technical matters. Under English law, Expert Witnesses owe a duty to the court or tribunal, prioritizing impartiality, and independence over their clients' interests. While they should possess a high level of knowledge in their field, they do not have to be the top experts. It is vital to prevent litigation or arbitration proceedings from becoming battles between Expert Witnesses, focusing instead on constructive collaboration, and presenting expert evidence in a cooperative manner. By fulfilling their responsibilities, Expert Witnesses contribute to the fair resolution of construction disputes within the legal system while maintaining the integrity of the expert evidence presented.

Julian P B Smith 28th June 2023