A warning against partisan expert evidence in construction disputes

In ICI v Merit Merrell [2018] EWHC 1577 (TCC), Fraser J in the Technology and Construction Court warned against the use of biased expert evidence and reminded experts and legal advisers of important points to bear in mind in this regard:

"There are some jurisdictions where partisan expert evidence is the norm. For the avoidance of any doubt, this jurisdiction is not one of them."

The judgment

Following an earlier judgment determining that an employer had been in repudiatory breach of contract, the court considered issues around quantum. In doing so, the court found that it was not bound by the Project Manager’s assessments of compensation events (under the NEC3 contract), that the burden of proof was on the employer to show that the contractor had been overpaid, and that the contractor was entitled to recover losses caused by the negative impact which the breach had had on its financial position.

For our full case analysis, see: Court assesses quantum following repudiatory breach of contract (ICI v Merit Merrell)

Comments on expert evidence

In parts of the (lengthy) judgment, the court was critical of some of the expert evidence. For example, it noted that one of the experts had:

  • valued work at actual cost rather than using the agreed rates, despite there being no contractual basis for this
  • opined on causation, which was a matter for the court
  • not taken account of specific findings made in the liability judgment

In fact, Fraser J was generally concerned by the preponderance of partisan experts called by one of the parties, and stressed the need for experts and instructing legal advisers to take careful note of the principles governing expert evidence.

Points to bear in mind

In addition to reminding experts to read CPR PD 35, the court noted six points about an expert’s duties which should be borne in mind (para 236):

"1. Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number.

2. Where there is an issue, or are issues, of fact which are relevant to the opinion of an independent expert on any particular matter upon which they will be giving their opinion, it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court.

3. Experts should not take a partisan stance on interlocutory applications to the court by a particular party (almost invariably the party who has instructed them). This is not to say that a party cannot apply for disclosure of documents which its expert has said he or she requires. However, the CPR provides a comprehensive code and it may be that disclosure is not ordered for reasons of disproportionality. However, if documents are considered to be necessary, and they are not available (for whatever reason), then an opinion in a report can be qualified to that extent.

4. The process of experts meeting under CPR Part 35.12, discussing the case and producing an agreement (where possible) is an important one. It is meant to be a constructive and co-operative process. It is governed by the CPR, which means that the Overriding Objective should be considered to apply. This requires the parties (and their experts) to save expense and deal with the case in a proportionate way.

5. Where late material emerges close to a trial, and if any expert considers that is going to lead to further analysis, consideration or testing, notice of this should be given to that expert's opposite number as soon as possible. Save in exceptional circumstances where it is unavoidable, no expert should produce a further report actually during a trial that takes the opposing party completely by surprise.

6. No expert should allow the necessary adherence to the principles in The Ikarian Reefer* to be loosened."

*The Ikarian Reefer is a 1993 decision which summarises the principles concerning expert evidence, including that expert evidence should be independent and that an expert should never take on the role of an advocate.

For more information on expert evidence in construction disputes, see sub-topic: Experts in construction disputes.

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Filed Under: Construction

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