ISSUE 53 Expert Witness Journal - Journal - Page 50
subsequently over-turned by the Court of Appeal in
December 1994. The outcome is not relevant for the
purposes of this article. During his judgement, the
judge was rightly concerned by the parlous standard
of the expert witness evidence that had been given.
He also believed this caused the trial to take much
longer than it should have done. He took the opportunity to set out clear guidance as to an expert’s duties
and responsibilities.
or the judge simultaneously cross-examines both
experts as can both sets of barristers.
As with so many aspects of life, preparation and
planning is key. A thorough understanding of your
written reports is essential. In addition, time needs to
be allocated to re-read all the formal expert reports as
well as the written opening submissions of all parties
that have been lodged with the tribunal or court prior
to the hearing.
These principles are now explicitly stated in the rules
of each of the appropriate international arbitration forums (for example the London Court of International
Arbitration, the International Chamber of Commerce
and the Singapore International Arbitration Centre)
or in the case of the courts of England and Wales in
the Civil Procedure Rules Part 35.
Advantages of arbitration
Most arbitration hearings are confidential and outside
the glare of publicity. In turn, the parties have some
degree of control over the venue, the applicable law
and language of the hearing as well as the choice of
arbitrators.
Case management conferences are also not solely
determined by a judge but subject to the mutual
agreement of all parties and the members of the
tribunal. This enables a degree of flexibility on
procedural matters and schedules.
Additional factors
Other key considerations that all experts need to consider include:
1. Before accepting any instruction an expert needs
to check that they are aware of the venue and the
hearing schedules including any pre-agreed deadlines. This is not only for the submission of the initial
written report but also any subsequent joint-expert reports as well as their availability to attend the inperson or virtual hearing.
Unlike court judgements which are often subject to
appeal, most arbitration awards are binding on the
parties provided the awards are based on the applicable law. Following the Law Commission’s review of the
Arbitration Act (1996) a draft Arbitration Bill was put
before parliament on 21 November under the “uncontroversial” procedure which is designed to speed
up the scrutiny process. The main changes include the
codification of an arbitrator’s duty of disclosure, the
introduction of a power of summary disposal, a revised framework to the Section 67 right to challenge
an arbitral award, and clarification as to which law
should govern an arbitration tribunal in the absence of
an express provision.
2. The need to maintain confidentiality which is a
prerequisite for most arbitration hearings.
3. From the outset sufficient time needs to be allocated
to undertake a thorough reading of all the source material including all legal submissions submitted by the
parties involved in the litigation.
4. Having completed the review, it is imperative that
before starting to write their report an expert has a
clear understanding of all issues on which they are required to express an opinion. Temptation should be
strongly resisted to give any opinion that falls outside
the scope of their field of expertise.
Arbitral proceedings and awards do not establish
precedent. It is theoretically possible for two different
arbitration tribunals faced with identical facts to reach
contrary decisions.
Ultimately once an award has been issued, there are
well established legal international mechanisms for
their enforcement.
5. All written reports submitted to a tribunal or court
must be prepared in accordance with the requirements of the tribunal or court and be the expert’s own
work. All opinions expressed in the report should also
represent their true and complete professional
opinion on all the matters at issue.
Conclusion
The role of an expert is both challenging and intellectually rewarding. Each dispute has its own unique
characteristics and subtleties.
6. It must be understood that any written opinions
expressed are likely to be subject to cross-examination
by an experienced barrister and occasionally by members of the arbitration panel or the judge.
Last but not least, it should be noted that an effective
independent, impartial and objective expert witness
rarely determines the result of an arbitral or court
hearing. In contrast an ill prepared hired gun can
have an irretrievable negative impact on the outcome.
7. Recognition that their role is not to decide the
outcome of the dispute or to decide the weight of the
underlying facts or intentions of the parties. That is
the responsibility of the tribunal or the judge having
considered all the evidence put before them.
References
1. January 2024, Tony Driver, US Editor Telegraph, 24 December
2023 www.telegraph.co.uk/world-news/2023/12/24/guide-elections-2024
Cross-examination
Cross-examination can be a daunting experience. It
is certainly not for the faint hearted. You may also be
subjected to the delights of “hot-tubbing” (more properly referred to as giving concurrent evidence). This is
a relatively new procedure where the arbitration panel
EXPERT WITNESS JOURNAL
Author
George Doughty
Consultant & Accredited Practising Expert Witness
Political Risk & Trade Credit Insurance
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