Mike Allen

Secretariat Advisors LLC

Hong Kong www.secretariat-intl.com

mallen@secretariat-intl.com Tel: +852 2979 2200

Biography

Mike is a chartered quantity surveyor who has over 35 years’ experience in the industry and has worked internationally for many years, with the last 20 years being based full-time in Hong Kong. He has extensive experience in procurement and contract strategy, dispute resolution and providing strategic advice to clients on distressed or problem projects. He acts as a quantum expert witness on a number of construction disputes, for both claimant and respondent, working with major firms of solicitors and barristers. He has given evidence in the High Court twice, and in domestic and international arbitrations 26 times and is a CEDR accredited mediator.

Name one of your most complex cases during the pandemic.

All cases are complex and have their own unique features, however if multiple geographies, time zones and different cultures are evident this can add to the degree of complexity. I am pleased to say that with modern methods of communication and flexibility by all team members this does mean that the individual challenges that are presented are commonly overcome with some ease.

Some practitioners note that cross-examination is better conducted in person. To what extent do you agree with this notion?

I generally agree, albeit I do not consider that cross-examination is ever easy, irrespective of the format. It could be said that being in a more familiar environment, surrounded by everyday features, could be said to assist the person being cross examined. However, a note of caution, because in my experience if an expert allows themselves to be lured into a false environment, and perhaps slightly lowering alert and listening levels, this could cause issues for the expert. I understand that some studies have been undertaken and there is a general view that advocates prefer in person hearings, whereas there appears to be a growing number of experts who prefer virtual hearings.

Some practitioners have argued that tribunals should demand more of quantum experts in reaching a consensus on the outcome value. To what extent do you share this view? How does this benefit clients?

I don’t necessarily think that this issue or question is specific to quantum experts but is a wider question/issue to all experts. An expert’s duty is to generally narrow issues and identify matters agreed and not agreed. This should be based upon the features of the evidence and on both parties’ case. To the extent that the quantum could be agreed on both parties’ case, there are occasions where differing methods are adopted on each parties’ case and therefore experts will have different values. If an expert falls short of this duty, then it should be expected and I have seen tribunals direct experts to further meet and explore areas of further agreement. Of course this must be predicated on the pretext that it is not for an expert to negotiate issues, but endeavor to seek an agreement, where one is capable of being reached.

What impact will technological innovation have on the construction industry over the next five to 10 years?

I consider like with all industries, technology will continue to be embraced to better improve the design and construction process. This involves off-site fabrication and pre-assembly to name but a few examples. It is also pleasing to see technology being used to capture project data, including the likes of daily drone surveys and the like. This being in addition to the many other areas of development and opportunity to bring greater consistency, quality and efficiency.

Are you seeing any green trends in construction-related arbitration? Can we expect more fossil fuel-related disputes to come as China becomes more committed to promoting green development, as laid out in the 14th five-year plan?

I am seeing more solar PV and wind farmrelated disputes as well as consequential PPA issues, and whilst it is too early to confidently predict such a trend, there is undoubtedly likely to be more disputes, if there is statistically a higher number of green-related projects being constructed.

What are some measures parties can take to proactively manage risks before things go awry and disputes originate?

To endeavor to make sure that the key aspects of the contract are clearly set out, and make sure that both parties have a clear understanding of expectations and deliverables. More often it is how change is addressed within a contract and how clearly adjustments to the program and the contract price are calculated. Aside from what is good practice, then the application of good contract management procedures and the capturing of appropriate records at the time the events occur, would always likely assist in reducing the points of ambiguity, interpretation and likely dispute.

What advice would you give to younger construction experts preparing for their first testifying role?

Certain parts of this answer are in my opinion equally applicable to established experts as well as younger experts. That is to properly prepare, understand your report, be aware of the key points of difference between experts and why, and consider and reflect upon the various evidential scenarios. There is also a familiarity aspect and so for the first testifying expert experience, make sure that you encounter or have familiarity of as much of the hearing and environment, bundle structure etc ahead of taking the stand. This should provide a helpful backdrop and reduce the uncertainty, which is perhaps one of the biggest challenges to a firsttime expert. Actively seeking training and mentoring is also another key component to removing the amount of uncertainty.

Peers and clients say: “Mike is very well experienced and excellent on the stand” “He is fantastic at tackling contentious issues” “Mike is a standout expert in the market”