Solicitors & Expert Witnesses in Construction Litigation
Gordon A Morris
This paper is a text version of a presentation to a group of solicitors working in the field of construction litigation. The paper examines the relationship between the solicitor and the expert from the perspective of an engineer. It considers what the Expert might offer the case, briefing the Expert, the Expert's report, how an Expert might contribute to shortening the litigation process and also what an Expert is not.
The relationship between a Solicitor and the Expert Witness, whom they instruct, can be of critical importance in construction litigation. It is therefore important that this relationship works well. In particular, both parties should fully understand what is required of that relationship.
This paper explores some aspects of the Expert’s work from the perspective of an engineer. In particular, it considers how the Expert is briefed in their task by the Solicitor. Of particular importance in the briefing of an Expert is an understanding of the limitations that an Expert may have. In particular, limitations in terms of the Expert's knowledge of legal matters and what is specifically required of them.
It is totally unsatisfactory for an Expert to simply state that in his opinion something is wrong, a defect or negligent. Any such opinions must be based on the facts and the specific legal context of the case under consideration. For this result, the Expert needs to be briefed precisely on the legal points being considered, for example; what is the legal definition of negligence in the case under consideration.
What is an Expert?
An Expert is a person who is a practitioner of skill and competence in a particular trade or profession.
They do not require to be a person of exceptional skill or eminence in their field. It can be argued that an Expert should not be of such skill and eminence that the standards which they might apply to any given set of circumstance are above those which the case is being judged on. In construction litigation, this is normally the criteria of "a reasonably competent person of a trade or profession".
What differentiates an Expert from their professional colleagues is possibly his ability to to be observant, logical and analytical. First he must be able to clearly identify and seek out what the problems are. Secondly he must be able to establish the logic of the problem so that the component parts can be clearly seen for what they are. Thirdly, he must be able to analysis the problem to establish why it is a problem in the first place.
In providing the Expert report the thinking behind it must be clear and unambiguous. The facts, analysis, conclusions and opinions are often complex and the ability to clearly express them and convey the ideas to non-technical persons is essential.
What an Expert Can Offer
In the context of construction litigation an Expert can provide, in relation to technical matters
- A definition of technical problems
- Ordering of facts
- Explanations of significance
- Define possible consequences
- Identify relationships to other matters
- Clear opinion based on reasons.
While a building owner may identify a problem because of some obvious manifestation, the Experts should be able to clearly identify the technical aspects of the problem. Further, the Expert’s analysis of the problem, at a technical level, should allow any related problems to be highlighted.
It is not unknown for the problem of cause and effect to become blurred and confused. The Expert should, with access to the appropriate papers, be able to order the facts of a matter in a logical sequence that is related to the technical significance.
The Expert should be able to explain the significance of a defect. The most obvious significance is cost. This can be cost of rectification or cost of consequential effects. The other important aspects of a defect’s significance are safety and reliability.
Faults and defects have consequences. The expert should be able to identify what these are if the defect is not rectified.
A defect in one part of a building’s construction may have an impact on other areas. The Expert should be highlighting these and advising if opinion should be sought from other disciplines.
The conclusions and opinions expressed by the Expert should be clear and unambiguous and based on the facts with reasons which can be substantiated from standard references.
Briefing the Expert
When briefing an Expert the following points need to be considered
- Clear definition of requirements
- Defining problems to be considered
- Specific points in law under consideration
- Provision of papers
- Do not make the brief too narrow
The problems which have given rise to the litigation need to be defined to the Expert. If the Expert is to have any chance of producing a meaningful report in the context of the case under consideration, then the Solicitor’s requirements need to be clearly stated. Such topics as the need to identify breaches in regulations, standards or poor practices should be explicitly stated.
Before an Expert is appointed it is likely that the work of the Solicitor has already arrived at some preliminary conclusions about the points of law that require to be proved and upon which an Expert opinion is sought. The Expert’s efforts can be better directed if the Solicitor explains exactly what points of law are being contemplated and what the precise meaning of those points are.
It is essential that the Expert can develop a full picture of all relevant matters. It is for this reason that all papers relating to the matter in the form of correspondence, specifications, instructions to the contractor and drawings be passed to the Expert.
If the Expert’s brief is too narrow then other important matters may be missed or overlooked. While the appointment of an Expert may be to consider one subject, at least extend the brief to notification of other problems found during investigations. If deemed important the brief can always be extended to cover any such problems once discovered.
Pitfalls in briefing an Expert can be avoided by ensuring some basic points. They are
- Set milestones for progress, reporting & costs
- Ensure the Expert is experienced & qualified
- Do not instruct the Expert too Late!
The schedule that an Expert has to work to is normally time constrained. Agree with your Expert how they propose to tackle the work and set milestones for achieving objectives. Interim reporting is always helpful and allows the Solicitor to gain some understanding of the way the Expert is progressing and if any further discoveries are being made. While costs may be easily established in some simple cases, ones where extensive investigation and research are required may require some sort of cost control or at least reporting in relation to progress.
While an Expert may be qualified in a particular field the specific matter under consideration may not be within the Expert’s range of experience. Make sure that the Expert has both experience and qualifications in the subject.
While some matters may appear small and require only a short report, make sure that you give the Expert enough time to properly investigate, report and prepare for giving evidence. It is potentially worth while discussing the case with an Expert at an early stage to allow some sort of draft timetable for any investigations and reports to be prepared later. More Experts have "died" in the witness box because they lacked preparation than because of lack of professional skill!
The Work of the Expert
When carrying out their work, an Expert should be gathering information and engaging in the processes of
- Defining and cataloguing defects, faults and failures
- Establish the facts
- Explain how defects & failures arose and relate them to:
- Functional failures
- Failures to comply with statutory instruments
- Established standards (British Standards etc.)
- Established codes of practice
- Quality assurance failures
- Establish cause through causality analysis
- Express Opinions related to defects and analysis
A catalogue of defects, faults and failures forms the basis for the Expert’s report. It is upon these matters that the rest of the report will flow. The definition of the defects is normally the result of investigation and enquiry.
The facts relating to defects need to be established, as far as is possible, from research of papers and enquiry. Written material that can be produced in evidence is preferable to oral statements.
An explanation as to how defects, failures and faults have arisen is important as this will form the basis for arriving at an opinion about responsibilities. When explaining why something is a defect and what should have been expected, it is always important to related the subject back to published material. Such material would include regulations and statutory instruments, British Standards, codes of practice and even Quality Assurance procedures of the contractor.
From the facts and reference to published material the causality analysis should clearly express the Expert’s thinking and establish the logic of the cause and the effects. It is only through the analysis that the Expert can express a valid opinion which will stand up to rigorous testing.
In expressing an opinion the Expert must be able to justify it on the basis of his investigations, facts and analysis. To do otherwise is to be open to having that opinion rejected in Court or at Arbitration.
Understanding the Expert’s Report
An Expert’s report can be expected to follow a logical pattern. One such pattern would be
- Standard Sections
- Catalogue of defects
- Relationship to standards expected
- Causality Analysis
The Expert’s report will contain standard sections covering a summary of instructions received, the Expert’s qualifications and experience, reference material used, details of site visits and interviews. These sections should establish the context of the report, the credentials of the Expert and the history of his work on the case.
The catalogue of defects will outline the defects considered, how they were discovered and why they are stated to be defects. The catalogue should be based upon substantiated facts and the date that a defect became apparent should be noted for the purposes of prescription.
Each defect should be related to standards acceptable at the time of design or construction. It is only by defining those standards that a benchmark for a defect can be established.
From the causality analysis the relationships between the defects or failures, the reasons for the defects or failures occurring and their effects can be logically established. This section of the report should illustrate cause and effect clearly and unambiguously
As a result of the causality analysis it should be possible to trace the source of the defect to the primary cause within the chain from concept through design and construction. Once this is established, identifying primary and possibly secondary responsibilities is feasible.
The opinions stated by the Expert should be clear and related to the facts, published material and the causality analysis.
Use of the Expert to Shorten the Litigation Process
In the, possibly, extensive detail of a construction litigation case an Expert may help to shorten the litigation process by the processes of
- Meeting of Experts to Agree Facts
- Negotiations to resolve technical matters
- Development of remedial works
The subjects of dispute can be made up of a myriad of small details. To use Court or Arbitration time to establish these details in a proof is time consuming and expensive. A meeting of Experts can potentially offer agreement on technical facts and, if not actually produce a resolution, may reduce the volume of material to be introduced in a proof.
Technical breaches in a contract are often ones that both parties are willing to resolve, at least within a narrow corridor of limited liability. Negotiations between Experts can often move these breaches forward to resolution.
Where remedial works need to be carried out the Expert should be able to define what these works are and develop a scheme to implement them. Such a scheme, in conjunction with an estimate of probable costs can form the basis of a Scott Schedule for use in either negotiations, to have remedial work carried out, or in presenting the case.
What an Expert is not
As well as understanding what an expert is it is equally important to know what they are not. These include
- The Expert is not a "hired gun"
- An advocate for technical merits
- Seeking justification for actions
The Expert witness is not a hired gun trying to promote the technical merits of the Client’s case. The role of the Expert is to guide the Court or Arbiter in technical matters as he has been able to ascertain them from the information made available by his Client and his own researches. The guidance which the Expert is providing is available to the instructing Solicitor at an early stage and should allow merits to be promoted in pleadings and at least a damage limitation strategy developed if the Expert advises the Client has in some way been at fault. Mr Goodall, the "Partisan with a Conscience", fell foul of this in the Cala Homes -v- McAlpine case in 1995.
The Expert should not be an advocate for the technical merits in a case. Conveying his findings, researches, opinions and conclusions may require some degree of advocacy skill in public speaking but this is substantially different from promoting the technical case instead of reporting it. An advocate is not obliged to research, they are only required to advocate the case based on the brief that they receive. An Expert is obliged to research and, while not arriving at a judgement, they are arriving at some conclusion.
The Expert is not seeking to justify a Client’s actions. Actions relating to technical decisions can be analysed and their context defined but the Expert can not explicitly justify them.
- Cala Homes (South) Ltd & Others -v- Alfred McAlpine Homes East Ltd 1995 CILL Page 1083
- Official Referee’s Solicitors Association Expert Witness Protocol 1996 CILL Page 1216
- The Expert Witness in Court - A Practical Guide by Bond, Solon & Harper
- Construction Disputes Liability & the Expert Witness Edited by Andrea Burns