Experts in Arbitration and Adjudication

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

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

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.

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:

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:

1.5.8 At paragraph 117 the judge said:

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

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

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:

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:

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 5^th September 2005ⁱⁱ. At about the same time (22^nd 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 3^rd 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:

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

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 13^th 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 2001^vi the Judge said, amongst other things:

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.

4.1 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:

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:

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:

4.6 The Protocol warns, in Item 18.7:

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:

4.7.2 The CPR Notes at Part 35.12.1 comment:

4.7.3 In Jackson v Marley Davenport^vii 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.

5.1 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:

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 Wilcox^viii in the following terms:

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

The Judge also criticised the expert as follows:

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, 14^th 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:

6.4 At paragraph 128 the judge said:

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.

7.1 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, 2^nd 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.

8.1 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:

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.

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.

^{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.