UK: Experts in Arbitration and Adjudication

Last Updated: 1 November 2005
Article by Robert Gaitskell QC

By Dr. Robert Gaitskell Q.C., Keating Chambers1

Originally presented to the Arbrix Construction Group, Saturday 15th October 2005

1. INTRODUCTION

1.1 Expert witnesses assist the courts and various other tribunals in a variety of contexts, including criminal trials, civil and family hearings, planning tribunals, copyright disputes, as well as in the more familiar areas of construction and engineering hearings before Technology and Construction Court (TCC) Judges, and construction industry arbitrators and adjudicators.

1.2 In these various fora experts have an important role to play. In 2002 the Court of Appeal Judge, Dame Elizabeth Butler-Sloss, writing about expert medical witnesses, described them as "a crucial resource. Without them we [the Judges] could not do our job". This importance of the expert witness function applies equally in the construction engineering field, where, save for a few cases which depend upon, say, the interpretation of the contract, disputes invariably involve experts opining upon professional negligence, programming, extensions of time, and so on.

1.3 However, it is precisely because tribunals, whether criminal, civil or specialist, are so dependent upon expert evidence in reaching the proper outcome, that inappropriate behaviour by experts is fiercely condemned, and why a steady stream of more and more detailed procedures have been introduced to control and regulate those who hold themselves out as experts in the forensic arena. Certainly, when an expert is perceived to have behaved inappropriately the consequences for him can be devastating. In mid-2005 Sir Roy Meadows, who had given evidence in the Sally Clark trial, was castigated by the media and punished by his own professional body. He was the paediatrician whose evidence apparently contributed to the wrongful conviction of a mother for the murder of her two babies. In a subsequent disciplinary hearing by the General Medical Council, although it was accepted that Professor Meadows did not intend to mislead the court, he was found guilty of serious professional misconduct for giving erroneous and misleading evidence, and he was struck off the register. It was said that statistical evidence he gave in court was outwith his expertise as a consultant paediatrician. As we shall see below, the penalties for experts who do behave inappropriately can be draconian, including stringent costs penalties, through to severe punishments imposed by the expert’s own professional body, effectively rendering him unemployable.

1.4 Concerns about forensic experts centre on two particular areas:

  1. The expert acts like a "hired gun", and is not independent; and
  2. The expert does not have the particular expertise in the field in which he is offering his opinion.

Each of these two concerns has been addressed in the recent Protocol, which is dealt with below. We shall now consider each briefly.

1.5 Independence

1.5.1 The recent Protocol (see below) deals in section 4 with Duties of Experts, and emphasises that they have an overriding duty to help the court, and this overrides any obligation to their clients. Item 4.3 states:

"Experts should provide opinions which are independent, regardless of the pressures of litigation. In this context a useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by an opposing party. Experts should not take upon themselves to promote the point of view of the party instructing them or engage in the role of advocate".

1.5.2 As part of this obligation to help the court and remain independent, item 4.5 in the Protocol requires that reports should set out the facts and material on which the expert has relied in forming his opinions. He should also (4.6) inform his clients immediately of any change in his opinion. Item 4.7 reminds experts that their clients and they themselves may be penalised by costs orders.

1.5.3 In London Underground Ltd v Kenchington Ford Plc & Others [1998] HHJ Wilcox criticised the lack of independence of one expert. He said that he "signally ignored his duty to both the court and his fellow experts" and "continued to assume the role of advocate of his client’s cause". The judge concluded that the evidence was invalid and unscientific.

1.5.4 Similarly, Judge Wilcox in Mukenbank and Marshall v Kensington Hotel [1999] criticised the expert for adopting "the stance of an advocate". The value of his evidence was thus very greatly diminished.

1.5.5 In Clonard Developments Ltd v Humberts (1999) EGCS 7 (CA) the Judge said one particular witness’s evidence was "unhampered by impartiality".

1.5.6 In Great Eastern Hotel Co Ltd v John Laing Construction Ltd and Others [2005] EWHC 181 (TCC), HHJ Wilcox condemned one expert for lack of independence.

1.5.7 At paragraph 111 the judge said:

"I reject the expert evidence of Mr. C as to the performance of Laing as Contract Manager in relation to periods 1 and 2. He has demonstrated himself to be lacking in thoroughness in his research and unreliable by reason of his uncritical acceptance of the favourable accounts put forward by Laing. I prefer the evidence of Mr. W who was an impressive and conscientious witness who showed that he approached his role as an expert in an independent way and was prepared to make concessions when his independent view of the evidence warranted it".

1.5.8 At paragraph 117 the judge said:

"Mr. C. who was charged with the duty of independently researching and analysing these events singularly failed to take account of this documentation and the photographic evidence in his written report for the court and presented a view of the course of the critical path which was clearly wrong".

1.5.9 In Pearce v Ove Arup (above and below), a case concerning copyright, the judge said:

"58. ----in my Judgment Mr. W.’s ‘expert’ evidence fell far short of the standards of objectivity required of an expert witness. He claimed to have appreciated the seriousness of what he was saying but made blunder after blunder ----

(e) He showed his biased attitude by looking for triangles in the early stages of the Kunsthal design (‘keen to find the triangle’ as it was ‘an element alleged to have been copied’). His keenness resulted in his misreading a drawing and finding a vertical trapezium".

1.5.10 The judge said of Mr. W’s evidence:

"So biased and irrational do I find his ‘expert’ evidence that I conclude he failed in his duty to the court".

6. Expertise

1.6.1 Protocol item 4.4 reminds the expert that he may only provide opinions in relation to matters which lie within his expertise.

1.6.2 In SP International Ltd v PPC (UK) Ltd and John Glen, 10.5.02, Ch. Div. Mr. Justice Rimmer said:

"Mr. D’s main difficulty is that he has no relevant expertise. I doubt if there has often been an expert less expert than he. He is an ex-RAF officer, who no doubt has a specialised knowledge and experience of many fields of human endeavour, but they do not include the field of shot blasting (the subject of the case)".

2. ATTEMPTS TO CONTROL CONSTRUCTION EXPERTS

2.1 Although the courts and other tribunals have long controlled the manner in which experts carry out their functions of meeting, reporting and, ultimately, giving oral evidence before the tribunal, a more systematic approach to such control and regulation can be dated from the landmark case of The Ikarian Reeferi. In that case Mr. Justice Creswell of the Commercial Court listed seven duties and responsibilities of expert witnesses in civil cases, emphasising the following:

    1. The evidence should be independent.
    2. The expert’s opinion should be unbiased and related to matters within his expertise.
    3. He should state the facts or assumptions on which his opinion is based, and consider facts which could detract from his opinion.
    4. He should state when a question falls outside his expertise.
    5. He should state if insufficient data is available.
    6. If, after exchanging reports, he changes his view this should be communicated to the other side and the court.
    7. Where he refers to any documents these must be provided at the time of exchanging reports.

This list then served as one of the bases for Part 35 of the Civil Procedure Rules 1998, introduced as part of the so-called "Woolf Reforms" (see immediately below).

2.2 Part 35 is set out in the White Book, and deals with Experts and Assessors, and is accompanied by a Practice Direction. The editorial introduction to Part 35 refers to concerns about the engagement of experts resulting in excessive expense, delays and complexity, and concerns about lack of independence. Consequently, the provisions in Part 35 address these anxieties. Thus:

Part 35.1 "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings".

Part 35.3 "(i) It is the duty of an expert to help the court on the matters within his expertise. (ii) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid".

Part 35.4(i) "No party may call an expert or put in evidence an expert’s report without the court’s permission".

Part 35.7 deals with the court’s power to direct that evidence be given by a single joint expert.

Part 35.10 deals with the contents of the report.

Part 35.12 deals with discussions between experts, and the court’s directions as regards identifying issues, preparing statements of what is agreed or not agreed.

2.3 However, notwithstanding that Part 35 has been in effect since 1998, problems have remained, with the consequence that this year a further attempt has been made to bring experts under closer judicial control. See the Civil Justice Council’s "Protocol for the Instruction of Experts to give evidence in civil claims", published in June 2005 and applying to any steps taken for the purpose of civil proceedings, by experts or those who instruct them, on or after 5th September 2005ii. At about the same time (22nd June 2005) a Code of Practice for Experts was produced by the Academy of Experts and others. This sets out the "minimum standards of practice that should be maintained by all Experts". It is a very short document which emphasises that experts must keep their knowledge up to date, remain independent, and be aware of their duty to the Court or Tribunal. Item 2 of the Code specifically states that an expert may not "make his fee dependent on the outcome of the case". It also requires him to have professional indemnity insuranceiii. Finally, it requires the expert to comply with "all appropriate Codes of Practice and Guidelines"iv.

2.4 Very recently, the TCC has issued the Second Edition of its "Guide", and this came into effect on 3rd October 2005. Section 13 thereof deals with Expert Evidence and refers extensively to CPR Part 35 and the associated Practice Directions already referred to above. It also states that "particular attention should be paid to the ‘Protocol for the instruction of Experts --- ’ ". At 13.2.3 the Guide warns:

"The parties should also be aware that the court has the power to limit the amount of the expert’s fees that a party may recover pursuant to CPR35.4(iv)".

It recognises that ‘single joint experts are not usually appropriate for the principal liability disputes in a large casev.

2.5 In addition to these attempts by the courts and experts’ bodies to regulate the activities of forensic experts, the professional bodies to which the experts belong are also in a continuous process of reviewing and extending their Codes of Practice. For example, the Royal Academy of Engineering (RA Eng) is currently rationalising the underlying principles supporting the various Codes of Conduct operated by the many individual institutions represented by the Engineering Council of the UK (ECUK). A "Statement of Principles" ahs been developed and was expected to be available on 13th October 2005 at an RA Eng seminar. These Principles include a requirement that engineers only perform services within their area of current competence, declare conflicts of interest, and so on.

2.6 Such professional Codes are, of course, important not only because the Code of Practice for Experts, already referred to, specifically requires, at item 6, that experts comply with appropriate Codes of Practice, but also because, as shown in the case of Professor Meadows, the ultimate sanction for an errant expert is to be rejected by his own professional body, thereby rendering him effectively unemployable. The courts have shown themselves willing to use this sanction in appropriate cases. Thus, in an architect’s copyright case in 2001vi the Judge said, amongst other things:

"Now there is no rule providing for specific sanctions where an expert witness is in breach of his Part 35 duty. ----Most (but not all) expert witnesses, however, belong to some form of professional body or institute. I see no reason why a Judge who has formed the opinion that an expert had seriously broken his Part 35 duty should not, in an appropriate case, refer the matter to the expert’s professional body if he or she has one. Whether there is a breach of the expert’s professional rules and if so what sanction is appropriate would be a matter for the body concerned. Prima facie, therefore, I consider it necessary to refer Mr. W’s conduct to his professional body, the RIBA. But before I do so it is only right that Mr. W. should have an opportunity of being heard. So I intend, unless successful representations are made on behalf of Mr. W. in the meantime, to ask the Defendant’s solicitors, after 21 days from the date of this Judgment, to send a copy of it, and any necessary papers, to the RIBA".

3. PARTICULAR AREAS OF EXPERT ACTIVITY

We shall now consider in detail three particular areas of expert activity where experts have often been found wanting. These are:

    1. Experts Meetings;
    2. Reports; and
    3. Oral evidence.

4. RE (i) EXPERTS MEETINGS

4.1 The TCC Guide referred to above, Item 13.5, deals with Meetings of Experts, and suggests that it is "generally sensible for the experts to meet at least once before they exchange their reports. (Item 13.5.4). The Guide emphasises that the desired outcome of such meetings is the production of an agreed statement which defines common positions or each expert’s differing position. It suggests the experts exchange in advance agendas listing the topics to be raised. Item 13.6 then deals with their joint statements, listing issues agreed and not agreed, and states that this is a "critical document".

4.2 CPR Part 35 deals with experts meetings and discussions in 35.12. This provides that the court may, at any stage, direct a discussion between experts for the purpose of requiring them to identify and discuss issues and, where possible, reach agreement. The court may specify the issues to be discussed and may direct that a statement be prepared showing issues agreed and not agreed. To facilitate frank discussion, 35.12(iv) expressly provides that the discussions shall not be referred to at trial unless both parties agree. The notes at 35.12.1 of the White Book state, amongst other things:

"It has been common practice in the specialist tribunals such as ---the Technology and Construction Court to order parties’ expert witnesses to identify those parts of their evidence which are in issue. It is usually profitable if such meetings take place as often as may be necessary before the exchange of the experts’ reports, otherwise positions are taken too early to the detriment of proper discussions at such without prejudice meetings".

4.3 Importantly, 35.12(iii)(b) gives the court the power to order the experts to give "a summary of their reasons for disagreeing".

4.4 The White Book at paragraph 35.1 notes that:

"The meeting should cover only matters within the expert’s professional competence".

As we have seen, once an expert starts acting outside of his field of competence he is likely to be in breach of not only the Protocol and other general documents, but also of his own professional body’s code of conduct, with potentially disastrous consequences for him.

4.5 An important consideration which needs to be addressed is whether or not lawyers and others should be allowed to attend the meeting of the experts. The White Book in 35.12.1 sums up the competing views thus:

"There are two schools of thought on who should attend an experts’ discussion. The more commonly held view is that lawyers and clients should not be present to enable the experts to debate their opinion issues in a full and frank way. (Certainly if one party sends a representative to the meeting the other should also be allowed to, in the spirit of a ‘level playing field’. Smith v Stephens NLD May 15, 2001 QBD). But the other view is that the presence of lawyers can be helpful: to answer questions on legal matters and procedure, to ensure fair play between the experts, and also to ensure that the agenda is followed and that the experts produce an agreed statement, as directed".

4.6 The Protocol warns, in Item 18.7:

"Those instructing experts must not instruct experts to avoid reaching agreement (or to defer doing so) on any matter within the experts’ competence.

4.7 Agreements not binding

4.7.1 CPR Part 35.12(v) states that where experts reach agreement on an issue during their discussions the agreement is not binding on the parties unless they expressly so agree. This is reflected in the Protocol at item 18.12:

"Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound by the agreement (CPR Part 35.12(v)). However, in view of the overriding objective [to do justice], the parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs".

4.7.2 The CPR Notes at Part 35.12.1 comment:

"----it could be very difficult for a party dissatisfied with an agreement reached at an experts’ discussion, to persuade the court that this agreement should, in effect, be set aside unless the party’s expert had clearly stepped outside his expertise or brief, or otherwise had shown himself to be incompetent. A party who refused to ratify an agreement on particular issues reached by experts when it subsequently turned out that was quite unreasonable and added thereby to the length of proceedings and the cost of the trial might find himself impugned in costs".

4.7.3 In Jackson v Marley Davenportvii an attempt was made to argue that, under CPR 35.13 (the party who fails to disclose an expert’s report may not use it at trial or call the expert without the court’s permission) where an expert had changed his mind, his first report also had to be disclosed. The Court of Appeal held that initial reports for the purposes of discussion were privileged.

5. RE (ii) EXPERT’S REPORT

5.1 CPR 35.10 deals with the contents of the report and requires that it must comply with the relevant Practice Direction (PD) in the White Book.

5.2 CPR 35.10 goes on to state that the report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written. CPR 35.10(iv) states that the instructions referred to in the report shall not be privileged against disclosure, although the court will not order the disclosure of any such specific document or permit cross-examination, unless there are reasonable grounds to consider the expert’s statement of instructions to be inaccurate.

5.3 The Protocol deals with the contents of experts’ report in section 13. It starts by reminding experts of their overriding duty to the court (13.1) and that they must remain impartial at all times (13.2). This is reinforced by 13.3 which reminds them that PD35, paragraph 2, requires their reports to be addressed to the court and gives detailed directions about the form and content. Paragraph 13.5 states that reports must contain statements that the author understands his duty to the court and has complied and will continue to comply with that duty (PD 35, paragraph (9)). It also sets out the verification of true statements which is mandatory:

"I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion".

5.4 Protocol Item 13.6 states that where highly specialised expertise is called for in a case, the experts must include in the report the detailed particular training and/or experience that qualifies them to provide that highly specialised evidence.

5.5 Further, Protocol 13.8 requires that where experts rely in their reports on other material or cite the opinions of others without having verified them, they must give details of those opinions relied on.

5.6 Protocol 13.15 states that the omission from the statement in the report of "off-the-record" oral instructions is not permitted, and the courts may allow cross-examination about instructions if there are reasonable grounds to consider the statement is inaccurate.

5.7 The Protocol is also concerned to prevent lawyers and clients from influencing the contents of the report. Item 15.2 in the Protocol states that experts should not be asked to, and should not, amend, expand or alter their reports in a manner which distorts their true opinion. They may be invited to ensure accuracy, internal consistency, completeness and relevance to the issues and the clarity.

5.8 The report of a well known expert was criticised by His Honour Judge David Wilcoxviii in the following terms:

"166. Mr. P. prepared and served a long and complex report warranting the service of detailed responses by SCL. A further report was served by Mr. P., it could not be described as sensibly responsive to SCL’s report. A further report was served by SCL indicating errors in the P. report. Sadly this assistance was not heeded. Indeed, Mr. P.’s opinion expressed in his report was neither supported by the pleadings or the evidence.

167. The evidence of Mr. P. generated a great deal of out of court time and expense and the subsequent hearing time was a red herring of little value".

5.9 The case reports show regular criticism of experts as regards their reports. In Gareth Pearce v Ove Arup Partnership & Othersix the Judge stated, amongst other things:

"60. At the end of his report, Mr. W. said he understood that duty (CPR 35.3: the duty to help the court, which duty overrides the obligations to the client). I do not think he did".

The Judge also criticised the expert as follows:

"58(a) Notwithstanding the seriousness of the allegation, he did not visit the Kunsthal before making his report yet did not mention that fact in his report. It may be that there were funding difficulties. But it certainly would have been fairer to say he had not actually seen the Kunsthal".

6. RE (iii) ORAL EVIDENCE

6.1 The Protocol, Item 19, deals with the attendance of experts at court. It states in Item 19.1 that experts have an obligation to attend court if called upon to do so, although where appropriate they may give evidence via a video-link (19.2(c)). If necessary, they may be compelled to attend by a witness summons pursuant to CPR 34.

6.2 Certainly, Judges find cross-examination an essential tool for testing the usefulness of expert evidence. In EPI Environmental Technologies v Symphony Plastic Technologies [2005] Times Law Reports, 14th January (Ch. Div.) it was held that it was essential for Judges to evaluate the evidence of witnesses, including experts, in its entirety, and witnesses must be challenged with the other side’s case. The judgment states that a judge is rarely helped by competing experts’ reports expressing an opinion not tested or maintainable by reference to supporting material. The cross-examination is essential.

6.3 In the Great Eastern case (above) at paragraph 108 the judge said:

"It is evident that Mr. C. had uncritically accepted that Laing throughout acted as a competent construction manager until he was cross-examined".

6.4 At paragraph 128 the judge said:

"Mr. C. ultimately, in cross-examination, as he had to, revised his opinion as to the criticality of the protection of the Railtrack services to the project. His failure to consider the contemporary documentary evidence photographs and his preference to accept uncritically Laing’s untested accounts has led me to the conclusion that little weight can be attached to his evidence save where it coincides with that of Mr. F.. I sadly conclude that he has no concept of his duty to the court as an independent expert. Despite seeing the photographs and material contained in Mr. F.’s two reports received and read by him in May, totally undermining the credit and accuracy of Mr. Wallis’ account upon which he relied, he chose not to revisit his earlier expressed views in accordance with his clear duty to the court".

6.5 In conjunction with the reliance by the courts on cross-examination as exposing inadequacies in expert evidence, is a concern that experts (and other witnesses) should not be "coached". In R v Momodou & Limani [2005] EWCA Crim 177, the Court of Appeal gave detailed guidance on the limits of permissible witness "familiarisation" in the context of a criminal trial, and contrasted this with impermissible "coaching". Lord Justice Judge, giving the views of the court, strongly disapproved of the witness training which had been given to Security Guards employed by Group 4, in a case involving two asylum seekers convicted of violent disorder, for their participation in a riot at a detention centre in 2002. The court made the point that any cross-examination practice given in preparation for the trial should be based on facts entirely different from those applicable to the real case.

7. HAZARDS FOR THE TRIBUNAL

7.1 The cases show a number of hazards which expert evidence can pose for a tribunal, particularly in the context of adjudications. Often the adjudicator finds himself in breach of the rules of natural justice, which require that each party be given a fair hearing, and that the tribunal be impartial.

7.2 Should an arbitrator or adjudicator seek assistance from an expert (e.g. a legal expert) he must deal with the matter very sensitively. In BAL (1996)] Ltd v Taylor Woodrow Construction [2004] All ER (D) 218, Lawtel, an application for summary judgment in the TCC was refused because the adjudicator had failed to reveal to the parties that he had obtained advice from a legal expert. Since this advice had affected his award, it was held he had acted in breach of the rules of natural justice. Similarly, in Costain Ltd v Strathclyde Builders Ltd [2003] 100 Con LR 41, Court of Session, Outer House (Scotland), it was held that the failure of the adjudicator to reveal the subject matter of his consultation with his legal advisor, or the content of the advice, raised the possibility of prejudice, and it was unnecessary to show actual injustice.

7.3 In Balfour Beatty Construction Ltd v Lambeth LBC [2002] BLR 288 84 Con LR 1, a TCC Judge held that the adjudicator’s use of programming assistants in his own firm to complete his decision, where there was a deficient delay analysis by the Claimant’s expert, constituted a breach of natural justice, because the adjudicator failed to notify the parties of his intention to do this. The judge said it might also constitute a breach of the Adjudicator’s appointment.

7.4 In RSL v Stansell [2003] CILL 2012, a TCC Judge held that an Adjudicator had breached the rules of natural justice in that he based his decision on the final report of an appointed planning expert without giving the parties the opportunity to review that report. This was so notwithstanding that the Adjudicator had not wrongfully delegated the making of his decision to the expert.

7.5 The case of Stephens v Cannon [2005] Times Law Reports, 2nd May CA, exemplifies another type of hazard faced by a tribunal. In a property case the Master found it impossible to distinguish between the evidence of the single joint expert and a party-appointed expert, and made his decision by falling back on the burden of proof. The Court of Appeal disallowed this approach and set out guidance as to when a tribunal could rely on the burden of proof.

8. SUGGESTIONS FOR ARBITRATORS AND ADJUDICATORS WHEN DEALING WITH EXPERTS

8.1 Since the Protocol expressly states that it is intended to apply to proceedings "in a court" (3.2) arbitrators and adjudicators may wish to consider informing the parties at the outset that if and insofar as any expert evidence is to be relied upon, the tribunal will expect the Protocol to be observed unless good reason is given for not doing so. It may be that the sum in issue is too small for various of the requirements to apply (e.g. a meeting before reports are exchanged) or that experts are instructed too late for some of the steps to be complied with.

8.2 Once all are aware that the Protocol applies, then any blatant infringement should not go unchecked. For example, Item 3.4 of the Protocol states that:

"Courts may take into account any failure to comply with this Protocol when making orders in relation to costs, interest, time limits, the stay of proceedings and whether to order a party to pay a sum of money into court".

In addition, in Phillips v Symes [2005] WLR 2043 Ch. Div., a medical negligence case, it was held that an expert witness can be joined in a third party costs order in respect of the way in which he gave evidence. The court said that the declaration signed by the expert under paragraph 2.4 of PD 35 of the CPR is sufficient to make clear to him the potentially adverse consequences of breaching his duty to the court.

8.3 Also see the approach of Mr. Justice Jacob in Pearce v Ove Arup above, where he sent the papers to the expert’s professional body, RIBA.

The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.

BIBLIOGRAPHY

  1. Baker & Lavers, "Expert Witness" RICS Books, 2005 (an invaluable and authoritative text).
  2. Thompson B, "The expert witness: guilty as charged?", The Barrister, 2005, page 30.
  3. Mulligan, A., "Walking the Tightrope", Counsel, July 2005, 31-32.
  4. Newman, P. "It looks good but does it stack up?" Tottle’s Construction Newsletter April 2005, 29-30.
  5. Langdon Down, G., "Would you give the same evidence, whoever pays?", The Times, Law Supplement, 6.9.05 page 8.

Footnote

1 © all rights reserved, the Author. Dr. Gaitskell is a practising Queen’s Counsel in Keating Chambers, London, specialising in engineering disputes. He is a Chartered Engineer as well as a Barrister and regularly acts as Arbitrator, Adjudicator, Mediator and Dispute Board Chairman or Member. His qualifications are PhD (KCL), BSc (Eng), CEng, FIEE, FIMechE, FCIArb, Barrister. He is a former Vice President of the Institution of Electrical Engineers.

Endnotes

i National Justice Compania Naviera SA v Prudential Assurance Company Ltd [1993] 2 Lloyd’s Rep. 68 Commercial Court; [1995] 1 Lloyd’s Rep. 455, CA;
[1993] CILL 838.

ii See paragraph 3.1 of Protocol.

iii Item 4 of the Code.

iv Item 6 of the Code.

v Item 13.4.2 of the Code.

vi Gareth Pearce v Ove Arup Partnership Ltd and Others, per Jacob J. (Case No: HC 1996 06040, dated 2nd November 2001).

vii [2004] 1 WLR 2926 (CA).

viii Skanska Construction UK Ltd v Egger (Barony) Ltd [2005] EWHC 284 (TCC).

ix Case No: HC1996 06040, per Mr. Justice Jacob.

The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.

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  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.