PART TWO: EXPERT WITNESS

EXPERT WITNESS

PART TWO: EXPERT WITNESS

By Joel Glover MAIQS and Yelda Nip MAIQS, CQS

EXPERT WITNESS

INTRODUCTION

This is the second article of the expert witness series and will provide a general understanding of the roles and duties of an expert witness and what assistance a tribunal (e.g., arbitrator or judge) expects from the expert witness when determining formal disputes between parties. As with the first, that featured in the March 2022 edition of the Built Environment Economist, this article is limited to Australia and does not cover international arbitration or security for payment legislation in jurisdictions outside Australia.

In this article, the authors will explain the process from engagement of the expert to the publication of the expert’s report, under the following headings: • instructions

• evidence

• report format and content • conclaves/conferences and joint reports.

INSTRUCTIONS

Expert witnesses are, in most instances, appointed by, and receive their instructions from lawyers representing one of the parties to a dispute. The expert will be responding to questions put forward on behalf of one party, therefore in instances where the respective party appointed experts exchange reports simultaneously, this may result in the respective reports answering different questions. This can be overcome either by the parties’ respective solicitors jointly agreeing the questions to put the experts or by the tribunal’s involvement before instructions are provided to the experts’ and reports are exchanged.

EXPERT WITNESS

Despite the size and complexities of the dispute and expert report, it is important for the expert to provide the tribunal with a concise and well supported report which is easy to navigate, well referenced and signposted.

The other, less common, ways in which expert witnesses are appointed and instructed are as a ‘single joint expert’ (SJE) or as a ‘tribunal appointed expert’ (TAE). The SJE is appointed and instructed by both parties’ respective solicitors. The TAE is appointed and instructed by the tribunal. The use of SJE’s and TAE’s has become more common to ensure impartiality and independence of the expert and to remove the perception that experts may be what is sometimes referred to as ‘hired guns’. A ‘hired gun’ being an expert who, it is perceived, advocates for the party on behalf of whom he is appointed¹. One of the other perceived benefits of using SJE’s and TAE’s is to reduce the costs and increase the efficiency of expert evidence. However, the outcome is often that such appointments result in additional costs because the parties will often engage their own experts to review and comment on the SJE’s opinion. The expert’s instructions usually take the form of a written letter, or series of letters, from the instructing solicitor. These instructions typically provide a background to the dispute, the relevant rules with which the expert must comply and the specific question(s) which the expert must answer, usually with a stated deadline.

EVIDENCE

The first article, featured in the March 2022 edition of the Built Environment Economist, focused on that the expert’s duty is to assist the tribunal. Accordingly, the expert is responsible to ensure the opinion provided gives priority to the tribunal over everything else, including the interests of the instructing solicitors’ client. The expert satisfies this obligation to the tribunal by considering all the information provided (the ‘evidence’) in an objective manner, in order to form an independent opinion on the relevant issues in dispute. This is the primary function of the expert witness because, by definition, the expert is providing an opinion in respect of a technical nature which is likely to be outside the expertise of the tribunal, and possibly even that of the parties. Based on the above, one might ask, if two equally experienced experts in the same technical field both provide their independent and unbiased opinion in respect of the same evidence, wouldn’t they both agree and come to the same answer?

The answer is no, not necessarily, because although the experts may have the same opinion in respect of some matters and issues in dispute, they may not necessarily agree on everything. For example, one expert may not be able to undertake the comprehensive investigations their counterpart was able to complete due to the timing of their instructions. Secondly, each expert may be instructed to assume particular facts by their respective instruction solicitor (e.g., two AIQS members who are Quantum experts may be instructed to assume different outputs per hour achieved by an item of earthmoving equipment). Furthermore, because each respective expert applies their own professional judgement concerning things for which there may be some subjectivity, the experts might, with good reason, come to different conclusions.

Once the expert has signed and published expert report, the report itself becomes part of the evidence which, subject to the relative weight assigned to it by the tribunal, will be used by the tribunal in finally determining the outcome of the dispute.

¹ Lord Woolf MR, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1995), p183

EXPERT WITNESS

REPORT FORMAT AND CONTENT

The general rule² is that witnesses may not give evidence of opinion, as their evidence must be limited to providing an opinion in respect of fact only. Namely, giving evidence of something the witness observed, or of a particular state of past or present affairs³. Expert evidence, and its acceptance, is an exception to the general rule because tribunals will allow, and more importantly, expect expert witnesses to provide their opinion on matters other than in respect of facts.

In providing an opinion, although each expert has their own writing and formatting style, to comply with the instructions and relevant tribunal requirements, the report must, as a minimum.

• comply with the relevant rules governing the dispute in question (see

‘Codes, rules and practice statements’ in the first article in this series) • include all statements and affirmations required by the governing rules • answer the questions put to the expert in the instruction letter(s), based on those instructions (e.g. assuming any facts so instructed). Depending on variables such as the time provided to the expert between being instructed and the date by which the report is due, the size and nature of the dispute, the volume and complexity of evidence the expert has considered, reports will often be voluminous and contain appendices. Despite the size and complexities of the dispute and expert report, it is important for the expert to provide the tribunal with a concise and well supported report which is easy to navigate, well referenced and signposted. Some experts prefer to show all or most of their calculations and workings in the body of the report text, whereas others prefer to include all or most of their calculations and workings in appendices to the report. This is not typically something the expert is instructed on and is therefore usually a matter of the expert’s personal choice or preference. Finally, expert reports, especially those on larger, more complicated matters where there can be tens of thousands of documents, will contain numerous cross references to individual documents which are in evidence. Where each individual document has a unique document reference or identification number for use in one of the various document management and search platforms, to assist the tribunal, each document should ideally be referred to either within the body of the report text and/or by way of footnotes.

CONCLAVES/CONFERENCES AND JOINT REPORTS

It is now common practice for most disputes, both in arbitration and litigation, for the tribunal to order the experts of like discipline to meet in conclave/conference, identify the areas of agreement and disagreement and produce a joint expert report. This process takes place after the experts have exchanged reports and is usually in the form of a meeting between the experts, either in person, or increasingly by way of video conference. These meetings, during which the experts are precluded from contacting their respective instructing solicitors, are typically referred to as either expert conclaves or expert conferences. The main purposes of these meetings being to encourage the experts to attempt to reach agreements and identify conflicting assumptions, instructions or documents provided to them. Once the meetings are concluded, the experts jointly prepare a written report or statement, usually referred to as Joint Expert Report, signed by both experts. This report sets out where the experts agree and, more importantly, where they disagree and why. This allows the parties and the tribunal to understand where the experts disagree and the reasons for such disagreement, therefore enabling the parties and the tribunal to focus on the areas of disagreement.

Joel Glover MAIQS is the Director at Secretariat Advisors and Yelda Nip MAIQS, CQS is a Senior Associate at Secretariat Advisors.

² For example, Evidence Act 1977, QLD ³ Bodney v Bennell (2008) 167 FCR 84.