Diales Compendium Issue 3 - Flipbook - Page 17
ISSUE 3
COMPENDIUM
This included, under the heading of ‘Relevant Expertise’,
that the expert must have the relevant experience, in that
the individual “has acquired by study or experience sufficient
knowledge of the subject or experience to render his [or her]
opinion of value”. In his Sir Michael Davies Lecture to the Expert
Witness Institute in June 2015, Sir Vivian Ramsey noted that
whilst ‘…that was said in the context of criminal proceedings,
the same could be said in terms of civil proceedings.’
The expert also needs to have knowledge of the standards that
are to be expected of them. Following the common law duties
arising from the Ikarian Reefer5 case, the Ministry of Justice
provided rules, directions and guidance as to the standards
with which experts are expected to comply, in the following:
1. Civil Procedure Rules Part 35 - Experts and Assessors6
2. Practice Direction 35 - Experts and Assessors7
3. Civil Justice Council’s (‘CJC’) Guidance for the instruction of
experts in civil claims8
Whilst these are only mandatory in litigation, they may also be
incorporated in bespoke arbitration rules, or by the agreement
of parties to the arbitration. In some arbitration proceedings,
particularly where the institutional rules are limited on
prescriptive details as to party-appointed experts, it may be the
case that the Chartered Institute of Arbitrator’s ‘Protocol for
the Use of Party-Appointed Expert Witnesses in International
Arbitration’ or the ‘IBA Rules on the Taking of Evidence in
International Arbitration’ might apply. In other cases, local
laws may well apply, but in any event, it is important that the
expert is aware of these rules, directions, guidance notes and
protocols, and complies with them.
In addition, experts may also be subject to the codes, practice
statements and guidance notes of the professional bodies of
which they are members, such as:
1. The Academy of Experts’ Code of Practice for Experts.
2. The Expert Witness Institute Code of Professional Conduct
and Practice.
3. The RICS Practice Statement and Guidance Note - Surveyors
Acting as Expert Witnesses 4th Edition amended 2020.
4. The RIBA Code of Professional Conduct and Guidance Notes
2019.
5. The ICE Code of Professional Conduct 2014.
THE EXPERT PROCESS
A comprehensive understanding of the duties of an expert,
the rules applicable and the standards required of the expert
will be invaluable in navigating the steps in proceedings9
that a party-appointed expert may encounter10, which could
include11:
1. Preparation and subsequent exchange of reports, including
answers to written questions arising.
2. Meeting of experts12.
3. Joint reports/statements.
4. Supplemental reports.
5. Presentation and testing of opinion evidence at the hearing
or trial.
THE EXPERT’S REPORT
What constitutes a report that helps the court or tribunal
will vary depending on the complexities of the dispute, and
be particularly so in some technical matters. In the case
of Weatherford Global Products v Hydropath & Ors [2014]
EWIHC 2275 (TCC), the judge made a criticism that:
“There seemed to be a belief that the judge was a
specialist electronics and electrical engineer who would
understand, without any explanation, precisely how the
technology worked, how the alleged deficiencies came
about, how the various suggested fixes might work, how
the experiments were to be understood and how the final
device… worked. Lawyers and experts need to explain if
necessary in words of one syllable all these matters.”
The above quote was included in James Bowling’s13 article
in The Academy of Experts’ The Expert and Dispute Resolver,
Winter 2014 edition, where he went on to give some useful
guidance on how to prepare an expert report, as follows:
“…report writing is a skill which can be learned - but only
by really hard work to identify, appreciate and understand
the key issues, marshal them into the right order, and
then write a report which addresses them in a logical way.
If this is done right, you will find that the report, in effect,
writes itself. The really hard thinking comes in identifying
and crystallising the right approach in the first place.
Once that analysis has been done, your experience and
qualifications should enable you to write a clear, concise
answer. Remember, if you don’t start by identifying the
right questions, you won’t get to the right answers.”
In addition to the rules, directions, guidance notes, protocols
and professional standards referred to previously, the
expert’s report should address the requirements of his or
her instructions, within any budgetary constraints, and
include references to the information that the expert relies
on (providing copies of such where necessary).
The opinions arrived at should be
supported by the facts and/or the
expert’s reasoning.
The CJC’s Guidance helpfully provides detailed best practice
in relation to the content of expert reports, including where a
sequential exchange of reports is required14.
Practice Direction 35, paragraph 3.2, recognises that there
may be a range of opinions. This is not uncommon in many
construction cases, given the nature and extent of the matters
in dispute. This often requires the expert to give opinions
based on alternative assumed facts for the assistance of the
court or tribunal. Practically, and in terms of proportionality
of cost, in complicated cases, such as in a delay analysis
where there may be different factual outcomes, this can be
very difficult.
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