Driver Trett Digest Issue 22 October 2021 - Flipbook - Page 23
DIGEST | ISSUE 22
A party may engage one expert as [an] advisor and a separate
expert to act as [an] independent expert. The advisor is
providing expert assistance whereas the independent expert
is providing expert evidence. The “clean” expert is engaged
to act as the independent expert. His paramount duty is to
the Court, not to the party that retained him. He owes the
duties set out in the Uniform Civil Procedure Rules. By
contrast, the advisor is referred to as a dirty expert because
he is not independent. He has no duty to the Court. He acts
solely on behalf of the litigant. His role is to provide advice
and formulate arguments in order to advance the case2.
In recent times I have witnessed an expansion in the use of
shadow experts such that it is not just limited to disputes
where a joint expert is appointed. It is now not uncommon for
parties involved in disputes, to appoint a shadow expert as an
advisor to support counsel even in circumstances where they
have appointed their own independent expert.
THE ARGUMENT FOR USING SHADOW EXPERTS
In the traditional scenario, where the tribunal, court
or parties appoint a joint independent expert, the main
advantage the shadow expert provides is to help ensure
that technical matters are presented strongly in claims
and/or defences.
Further, the shadow expert can assist with aiding the
understanding of the single expert’s opinion and/or providing
guidance to counsel for areas to focus upon in any crossexamination.
In many scenarios the claimant or defendant often have
employed the services of a claims consultant during the
course of the project to provide advice and/or assistance in
the preparation of claim submissions or defence rebuttals,
and often retain the consultant as a shadow expert to assist
in any proceedings.
This has many advantages. Firstly, it can help to avoid an
unsupported or immature claim from being submitted into
the proceedings. Secondly, the shadow expert can often help
to set the parameters for the engagement of an independent
expert who will ultimately provide evidence to the tribunal.
Finally, the detailed history and records of the project the
consultant has built up during the works can be presented, by
the shadow expert, to the independent expert and any follow
up actions such as answering queries or providing further
information can be efficiently addressed.
These above points can result in the claimant or defendant
enhancing the value it has invested in employing the claims
consultant during the course of the works. In addition, it
allows a strong and clear claim or defense to be submitted
in the proceedings using appropriate expertise whilst at the
same time ensuring that the independent expert retains their
independence.
THE ARGUMENT AGAINST SHADOW EXPERTS
One of the downsides of having shadow experts is the
perceived additional costs which are considered to arise
which could be thought of as contrary to the purposes of
having one joint independent expert.
Another potential concern is that once counsel learns, with
the shadow expert’s assistance, the strongest version of the
case’s technical facts, a “clean” expert is hired to serve as
the trial witness. The clean expert is informed only of the
best features of the case and told only what is necessary to
produce the most favourable independent expert reading of
the case.
There is of course no guarantee that the views of the shadow
expert will mirror that of the independent expert. The risk of
such an outcome would be similar where a tribunal appoints
a single expert along with the experts appointed by the
parties.
CONCLUSION
So, what does the future hold for of the role of the shadow
expert?
To answer this question, consideration must be given to the
fact that the role of shadow experts is a relatively new role
and like anything at the early stages of development the
nature of the role is emerging.
In scenarios where a joint independent expert is appointed
by the parties the role of the shadow expert in construction
disputes seems a logical appointment to assist the claimant
or defendant with technical expertise and experience which
they may not have in-house.
The use of shadow experts, where independent experts are
appointed by each party, is less clear. However, such a role
can play a large role in assisting with resolving the dispute
and reducing costs for the parties involved at the early
stages of the proceedings. Alternatively, and as a minimum
it will greatly enhance the quality of claims and defence
submissions made in the proceedings such as to allow all
participants to better understand all facets of the case.
One consideration all shadow experts should contemplate
is that their advice is rarely visible to other participants
in the proceedings. It is therefore important that if these
experts perform other roles, in particular when they act as
arbitrators, they bear in mind potential conflict issues arising
out of any behind the scenes advice they have given in the
past.
As with any emerging service perhaps the answer is for the
relevant bodies and authorities to provide some guidance
and regulation on such services.
2 Declan Kelly & Dan Butler, Ethical Considerations in Dealing
with Experts, 1 December, 2010
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