'If an expert says it can’t be done, get another expert' - expert evidence for engineers

Engineers Ireland is to host a course entitled ‘Expert Witness Training for Professional Engineers: New Developments in High Court Procedures’ on Tuesday, 14 March in 22 Clyde Road. With changes in the law and High Court procedures from 1 October 2016, the giving of expert evidence is impacted dramatically. This course provides a comprehensive overview of how to give expert witness testimony, preparation for trial and creation of documentation. It will also cover expert witness work for professional engineers and the practicalities of being an expert witness. Click here for details. In the recent case of Waliszewski v McArthur and Company Limited (2015), Mr Justice Barton stated that the failure of an orthopaedic surgeon, acting as an expert witness, to disclose relevant details to the case in his report was “reprehensible and is to be deprecated”. Mr Justice Barton then ordered that a copy of his judgement be forwarded to the Medical Council of Ireland. Even being absent of deliberate dishonesty, it has been stated by another member of Irish judiciary, Mr Justice Barr, that expert witnesses “seem to lack a true understanding of their purpose”. With the publishing of the Law Reform Commission consultation paper on expert evidence in 2008, the potential expansion of the use of expert witnesses into adjudication, the coming into force of the Construction Contracts Act and the new Rules of the Superior Court which come into effect on 1 October 2016, it is a good point to take stock of the duties and expectations held of expert witnesses. By fully understanding their role, expert witnesses can then turn to maximising the utility of their evidence, for both their client and the court, or tribunal. The Rules of the Superior Courts (Conduct of Trials) 2016 come into effect on 1 October 2016. In relation to expert evidence, they set out that for High Court proceedings where a party is intending to use expert evidence, they should disclose this in their Statement of Claim along with the field of expertise and the matters on which the evidence will offered. The same requirement will be placed on a defendant in their Defence. Also noteworthy is that, save for a special reason as determined by the Court, each party may offer evidence from one expert in a particular field and on a particular issue. It is a notable quirk that the ability to produce expert evidence runs contrary to the established rules of evidence. The stock function of a witness as outlined in A.G. (Ruddy) v Kenny (1960) is that witnesses should only outline facts, as they perceive them. It is for the judge or jury to form an opinion based on the facts as represented by witnesses. In contrast, expert evidence is, both by necessity and its nature, opinion evidence. The ability to produce opinion evidence in the form of an expert witness is therefore a powerful tool that a party to a dispute can wield. The difficulty, though, in allowing an expert witness to espouse their opinion is that parties will then seek to go ‘expert shopping’ to buy those opinions and use them to discount the evidence of the other sides’ experts. As Jessel LJ outlined in Thorn v Worthing Skating Rink (1877): “I was told in one case, where a person wanted a certain thing done, that they went to sixty-eight people before they found one.” Hand in hand with this ‘shopping’ is the fact that experts are not immune from partisanship and bias. This bias may be borne from the shopping process, in that parties will seek an expert already disposed to the viewpoint sought by a specific party. It may also be that an expert witness believes they owe a principal duty to their instructing party. In any event it is to be expected that when presented with a question or issue without an immediately clear answer, an expert witness is likely to fall, or at least lean, towards the view that would best suit the party that has instructed them.

Engineers and duty to the court

It is important that expert witnesses are aware that their overriding duty is to the court. As stated by Crampton J in R v O’Connell (1844);3 regardless of any payment that a party has provided for an expert witness’s evidence they have a prior and perpetual retainer on behalf of truth and justice. This is manifested in the amendments to the Rules of the Superior Court through order 39, rule 57(1) of which states that: “It is the duty of an expert to assist the Court as to matters within his or her field of expertise. This duty overrides any obligation to any party paying the fee of the expert.” It is therefore expected of expert witnesses that their evidence be independent and unbiased and these themes are consistent throughout the other duties of expert witnesses, as outlined by the Law Reform Commission. These duties are:

Duty to give well-balanced, well-reasoned & honestly held opinion;
Requirement of truth, independence and impartiality;
Duty to limit contentious issues;
Duty to avoid a conflict of interest;
Duty to keep the opinion within the permitted scope;
Duty to act with reasonable care to the instructing party; and
Duty to take reasonable care in creating expert report.

It is important to note that the duty to the instructing party is a duty to carry out all the necessary tasks involved with being an expert witness, for instance appearing in Court and/or providing a suitably detailed and cogent report. It is not hard to find judgements with judges complaining about the ignorance of expert witnesses regarding these duties. The English case of Van Oord UK Ltd v Allseas UK Ltd (2015) a case in which Coulson J described expert witnesses as having “stuck to what appears to have been a deliberate strategy of long, rambling answers designed to avoid the question and put their case in the best possible light, regardless of the truth…they were as unconvincing a group of factual witnesses in a commercial claim as I have ever encountered”. Certainly, it is clear from these lamentations that how an expert witness delivers their evidence and their awareness of their duties will be a substantial factor considered by the court when determining the value to ascribe the evidence. Thus, it is not surprising for Charlton J to outline in James Elliot Construction Ltd v Irish Asphalt Ltd (2011) that the core basis on which he values an expert’s evidence, over another, is the extent to which that evidence reasonably considers the opposing view followed the duties outlined above. By being aware of and complying with their duties an expert witness can be of maximum utility to the party who has instructed them by having the Court consider their expert evidence valuable. It was a suggestion of the Law Reform Commission as part of its consultation paper, that a Code of Guidance be produced for expert witnesses outlining their role and their duties. This though raises the question of the consequences expert witnesses should face for not complying with these duties, beyond a Judges disdain, and the liability they should have for their evidence. The stance of the Irish courts to the immunity of expert witnesses regarding their evidence was most recently set out in 2007 in the case of WJ Prendergast and Others v Redver Skelton. In this case, despite the fact the expert witness’s failures were described as reprehensible, he was still entitled to avail of expert immunity. Since this judgement, the position in England and Wales has diverged via the Supreme Court case of Jones v Kaney (2011). This case decided that expert witnesses may be liable for breach of duty, either in contract or negligence, with regards to his evidence. Whilst no Irish judgement has expressly adopted this position it may be that the actions of Mr Justice Barton, as outlined in the first paragraph of this article, in ordering his judgement be forwarded to the Medical Council of Ireland marks the start of the Irish Courts doing away with expert immunity and following the position in England and Wales. It is therefore imperative that expert witnesses are very aware of the above outlined duties so that they do not leave themselves open to proceedings through not following and ultimately breaching them.

Engineers and expert witness in adjudication

Having outlined the role of expert witnesses in relation to courts and tribunals, now comes the quandary of how these will translate across to adjudication. Helpful in this regard is the recent report of HH Francis Kirkham CBE’s on the use of expert evidence in construction disputes and the position regarding adjudication in the UK. Ultimately, the position is that there are very few safeguards in place to prevent an expert being in practice essentially an advocate. The timescales involved with an adjudication may hinder an expert from being wholly independent as he or she have to rely on a client’s own investigations, absent of the time to do their own. One of the solutions suggested by HH Francis Kirkham is for experts to sign a declaration in all reports prepared for adjudication to affirm his or her independence. A better means may be for professional bodies to take the lead in this regard mandating that where their members act as experts for adjudications they must comply with their guidance, which could line up with the duties of expert witnesses in relation to Court proceedings. In conclusion and in any event, it is clear that it is imperative for expert witnesses to be aware of what their duties are in order for their evidence to carry weight within legal proceedings and to avoid any potential recourse when an expert witness does not comply with these duties. James Golden, BEng, LLB, CEng, FICE, MCIArb, FInstCES, MRICS is a barrister, chartered engineer and surveyor. He is widely experienced in all aspects of construction claims and dispute resolution. acts as contract administrator, employer’s representative and/or project manager and also acts as an examiner of the Institution of Civil Engineers.