Driver Trett Digest Issue 22 October 2021 - Flipbook - Page 22
ARE SHADOW
EXPERTS
HAVING A
POSITIVE
IMPACT ON
DISPUTES?
Julian Haslam-Jones
Regional Director and UAE Country Manager
The expert witness must remain objective and independent
throughout because a failure of either will affect their
credibility and, therefore, weight to be given to the expert’s
evidence which, in turn, may affect the success of the party’s
case1.
However, the use of experts is expanding in construction disputes, as acknowledged by the London Court of International
Arbitration (LCIA). One of the newer roles of experts is the
role of the “shadow” expert, sometimes referred to as “expert advisor” or “dirty” expert.
THE DEFINITION OF A SHADOW EXPERT
The original use of the shadow expert was born out of the
scenario where the tribunal, court or parties appoint a joint
independent expert. This is particularly common in jurisdictions such as Australia and Hong Kong.
In this scenario the parties often employ an expert/advisor to
assist with case strategy and technical matters in their field
of expertise. Exploring and developing a claim or defence
to a claim often requires substantial technical or specialist
expertise, beyond that which can be provided by counsel.
For this reason, experts are often engaged to assist in this
process.
Experts frequently play an important part in the conclusion
of complex construction disputes. The usual role of experts
is to provide independent opinion in their field of expertise
in order to assist the Court / tribunal in their findings.
Shadow experts are an extension of the party itself. The
person or persons appointed as a shadow expert do not give
evidence in the proceedings. Their role is to assist the party
that has appointed them to enable the strongest case to be
advanced. This is quite a contrast to a “clean” / independent
expert whose duty is to the Court / tribunal with a remit to
present impartial expert evidence as summarised below.
The English case of the Ikarian Reefer [1993] 2 Lloyd’s Rep 68
is one of the original references for the duties of an expert.
1 Dean O’Leary, the use of experts in construction disputes in
the UAE, May 2014
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