A warning against partisan expert evidence in construction disputes

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 o

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About the author:

Jon is Head of the Built Environment Group at Lexis®PSL.

Jon trained at Hogan Lovells and qualified into the firm's construction disputes team. Jon has experience of acting for various parties in relation to disputes arising out of construction and engineering projects in various jurisdictions. Jon has acted for clients in TCC litigation, arbitration, adjudication and mediation as well as providing advice on various aspects of construction and engineering projects.