Ask the experts

Some expert witnesses turn out not to be so – don’t bite off more than you can chew

In practically all construction cases, expert evidence will be required to help the judge understand technical facts and provide opinion on matters about which he could not form a decision unaided. Essentially, the role of the expert witness is to help the court understand complex technical issues and to act independently when doing so. 

For high value or complex claims, each party generally appoints its own independent expert, each of which prepares an expert report that must comply with the Civil Procedure Rules. Though appointed by their respective party, the experts’ primary duty is to help the court. This duty overrides any obligation the experts may have (or may think they have) to those instructing him.

For those acting as architectural experts, take note that the Civil Justice Council has recently announced new guidance for the instruction of experts. This will replace the 2005 ‘Protocol for the Instruction of Experts to give Evidence in Civil Claims’. ‘Guidance for the instruction of experts in civil claims 2014’ is expected to come into force this autumn and is already available in anticipation. 

Experts have made the headlines over the past 18 months, criticised for being biased, lacking relevant experience (due to working more as experts in court than in their original profession), being argumentative and unrealistic, and advancing arguments based on theory rather than the agreed facts.

The recent case of Hirtenstein v Hill Dickinson is case in point. Here, Mr Hirtenstein purchased a yacht from Mr Candy for US$5.5m without a survey or sea trial. Approximately one hour after the purchase was complete (and 12 miles out at sea), one of the engines failed. An insurance claim followed, as did a claim by Mr Hirtenstein against his solicitors for professional negligence in not obtaining a personal guarantee from Mr Candy in respect of the yacht’s condition.

The judge was clearly not impressed when one of the experts had a change of opinion ‘in the shower this morning’

During the trial, Mr Hirtenstein’s engineering expert, Mr Smith, who gave his opinion on the cause of the engine’s failure and cost of repairs, endured much judicial criticism. The judge, Mr Justice Leggatt, said the expert had been ‘careless’ in the way he approached his task as he could not explain why certain items had been included in the claim – other than to say they were necessary as they had been purchased. Nor could he explain why an appendix (of which he had no knowledge) had been attached to his report itemising around US$735,000 of expenditure. As to this, the judge said ‘there is no explanation which exonerates Mr Smith of incompetence’. 

Accordingly, the judge did not attach any credence to the figures the engineering expert put forward and did not consider him ‘a fit person to act as an expert witness’. 

Similarly, in the case of Weatherford Global Products v Hydropath Holdings in the Technology & Construction Court, Mr Justice Akenhead criticised the defendant’s experts for their lack of experience as experts (both in terms of their professional background as well as their involvement in litigation) and demeanour in the witness box. The judge was clearly not impressed when one of the experts had a change of opinion ‘in the shower this morning’. The judge considered that the reason for the change was not clear and seriously undermined his reliability.

In order for expert evidence to be effective, witnesses must be believable and their expert accurate and independent. Those acting as architectural experts (or considering a future appointment) are advised to review the aforementioned cases and should keep in mind Mr Justice Leggatt’s closing words in Hirtenstein: ‘Experts’ opinions, if they are to be accorded any weight, need to be supported by a transparent process of reasoning’.

Stacy Sinclair is an associate at Fenwick Elliot

Professional Negligence

How do you know if your actions are ‘negligent’? The legal answer can be straightforward, yet unfortunately may not be so easy to identify in practice – which is why expert evidence is almost always required in professional negligence claims.

Negligence is a failure to exercise reasonable skill and care, either in breach of a contractual term or a duty of care in tort. The three elements to the tort of negligence are: a duty of care, breach of that duty, and damage as a result of the breach.

The standard of conduct required of a professional is that of an ordinary skilled person exercising and professing to have that skill. The position may be different if that professional undertakes to have a higher level of skill than others in that profession. For example, if you claim to be ‘the best in the business’ you are expected to perform to the highest standards, not just what would normally be expected of a professionally competent architect. If your conduct falls short of the requisite standard, or that which would ordinarily be considered reasonable or acceptable, you could find yourself liable for professional negligence.