It is generally acknowledged that Technology and Construction disputes are amongst the most complex actions to pursue in litigation and/or in arbitration. This is often due to the combination of complex technical issues, voluminous documents, the detailed and technical evidence involved and the substantial sums at stake in cases of this nature. This guide summarises the expert witness statement process including an explanation of what an expert report is, why one may be required and the actual procedure that is usually adopted when reports are prepared, drafted and served on the other party to the Court case.

Duty

The Court Rules provide that an expert has a duty to assist the TCC in matters within its expertise. This duty overrides any duty that the expert may have to the party that has instructed the expert. The legal representatives or any other party appointing the expert is not able to dictate to the expert what must be included in the report. It is appropriate for the expert and legal advisors to consult regarding the report but the report must be an independent report of the expert that is not influenced by the litigation.

Advice of the expert

The advice of the expert will be obtained at a relevant time in the TCC action. This will vary subject to each particular case. It is imperative that the correct expert is selected. The parties should not leave the selection of the expert to a stage late in the proceedings. However, on occasion this may be unavoidable due to the nature of the dispute. In some instances there may be a limited number of experts with the relevant expertise and the parties will want to ensure that the best expert for the particular case is instructed taking into account experience, availability and ability of the expert.

The TCC's Pre-Action Protocols encourage parties to jointly select an expert. However, a party can instruct its own expert and is not obliged to disclose any report that may be obtained.

TCC proceedings

The calling of an expert to give evidence is governed by the TCC. The TCC Rules provide that the expert evidence should be limited to that which is reasonably required to result in a resolution of the proceedings. An expert and their evidence can only be put before the TCC with the TCC's permission. The TCC will select the issues on which it will allow evidence including the nature of the evidence and how it shall be put before the TCC.

Standard practice is that expert evidence is provided to the TCC in the form of a written report. The TCC may direct that other methods be adopted but this would be unusual. Additionally, the TCC will also consider whether or not oral expert evidence is required. The experts for each party to the TCC case will be required to narrow the issues in dispute between them and explain their differences. Usually, only after they have done this will they be allowed to give oral evidence at Trial.

As expert's fees can comprise a considerable amount of the total costs in the case, the TCC has jurisdiction to limit the amount of fees that are recoverable by the parties. When determining the amount of recoverable fees, the TCC will consider the conduct of each of the parties before and during the proceedings.

Single jointly appointed expert

The TCC can direct that a single joint expert be appointed rather than each party instructing their own expert. The usual circumstances where a single expert will be appointed are where the case relates to a specific area of expertise and where it is deemed not necessary for the TCC to consider a range of opinions of experts.

Duties of the expert

The TCC will provide for the way in which the expert report is to be prepared. The expert's duty is to assist the TCC on matters on which its expertise is paramount. This duty overrides all of the expert's other obligations including those it has to the party that it represents. The expert is required to provide an objective and unbiased opinion on matters on which he has expert knowledge. All material facts should be considered by the expert including those that are not advantageous to the party it represents. If a question is asked of the expert and he does not have the relevant expertise to address it, then this absence of expertise should be made clear in the report.

Once the report has been produced, an expert may change his opinion on a material matter. If this is the case, then this change of opinion must be notified to the other parties and the TCC.

Exchange of experts' reports

The TCC directs in the TCC timetable as to when the parties are to exchange their reports. The exchange of reports is usually simultaneous between the parties.

Consultations between the experts

If the parties have been allowed by the TCC to appoint their own experts, then the TCC will usually require the experts to meet and discuss the issues in dispute between the parties. Usually the meetings take place at a location independent of the parties and the meeting will result in a statement being prepared by both experts jointly. The statement will be produced to the TCC specifying the issues on which they agree and those on which they disagree. The statement will specify the reason for their disagreement.

Any agreement that may be reached between the experts will not be binding on the parties unless the parties expressly accept the agreement.

Exchange of reports

The exchange of experts' reports allows the parties to call that expert at trial if permission is granted by the TCC. This does mean that any party can now use this report in evidence whether or not the party that commissioned the report intended to use the report at trial.

Questions to experts

A party can provide an expert appointed by the other party with a list of questions. Such questions must be provided to the expert within 28 days of service of the expert's report. The TCC intends that such questions be used as a helpful tool in the exchange of information.

Documents referred to

Any document referred to in an expert's report, can be inspected by the opposing party. This could include photographs, plans, analysis, measurements and further reports.

Costs

The costs of the expert are usually charged by the expert at an hourly rate. Each expert will have their own terms and conditions. We will only instruct an expert once we have full details of the terms and conditions and these have been considered and agreed by you. We will also let you have a copy of the expert's CV before the expert is instructed. Standard practice is for the expert to request that payment be made on an interim basis and payment on account before any Trial takes place.

Disclaimer

The content of this article does not constitute legal advice. You should always consult a suitably qualified lawyer for professional advice about any specific legal matter of concern to you. George Davies Solicitors, its partners and staff do not assume any responsibility for information contained within this document and disclaim all liability relating to such information.

About George Davies Solicitors

George Davies was highly rated, in the North West, in nine different categories of the 2005 Legal 500 review and in Chambers and Partners UK Directory. They specialise in all aspects of commercial law and boast a substantial Property Department within which sits a niche Construction team with experience in a full spectrum of construction law services. The firm was commended in the Legal 500 for their strong movements forward in a variety of property and construction deals and Chambers specifically mention its achievements in Construction. The Head of Construction, Catherine Kay can be contacted on 0161 234 8861 or emailed at catherinekay@georgedavies.co.uk

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