Should we be able to take it for granted that an expert providing a report for use in an adjudication is required to act independently or do we need to put safeguards in place to ensure that the adjudicator is not misled by a partial expert?
This is the question I found myself pondering after reading HH Francis Kirkham CBE’s report prepared following the Society of Construction Law’s consultation into the use of experts in construction disputes.
Advocate or expert?
When a client comes to me and asks me to prepare a case for adjudication, one of the first issues I consider is whether expert evidence is required. For disputes over £500,000, the answer is usually yes, but choosing the right expert can make a significant difference to the outcome of the dispute:
- Does he have the right skills and expertise?
- Is he available to produce a report in the tight timescale?
- Can he write a report that is well structured, clear and easy to follow?
- Is he going to produce his report within the cost estimate we agree or present me with a huge fee bill that is going to upset both me and my client?
One issue I don’t consider at length is, “what role will he perform?”.
If you practice in the TCC and undertake arbitration alongside your adjudication practice, you probably take it for granted that an expert producing a report for any of those purposes will be independent and his report will express his view on the issues in dispute. Surely, if an expert does not submit to the core principle of independence, they are not really an expert at all, but an advocate for their client’s position? Without independence, what credibility does their report have?
However, HH Francis Kirkham’s report highlights the potential difficulties associated with this in adjudication. Some of the 75 people who responded to the consultation believe that the process of pulling together a case for adjudication leads to a less clear separation between expert and advocate in adjudication. They point out that it may be not be possible for an expert to carry out his own detailed investigation within the timescales, making it necessary for him to rely in part on the client’s own investigations. Others note that, in some instances, the expert will expressly act as expert and advocate.
This all adds to the evidentiary minefield that the adjudicator has to navigate when weighing the evidence.
What safeguards are in place?
On the face of it, not many. Experts producing reports in adjudication are not subject to the protocols and CPR rules that operate in the High Court. For example, they are not required to sign a declaration, produce a copy of their instructions or identify when they are relying on the investigations of others.
Is a declaration the way forward?
HH Francis Kirkham has asked for views on whether experts should be required to include a declaration in reports prepared for adjudication. While this can do little harm, I wonder what difference it will really make? Typing out a declaration may make the expert pause and consider what his role is, to question himself on whether he knows the facts included to be true and the opinions set out to be his own. But it may not. If he doesn’t always, as a matter of course, take steps throughout his instruction to ensure his independence, writing a declaration at the end of a report won’t automatically change his conduct and make the contents more reliable. After all, the adjudicator has no real tools to police the expert’s behaviour in the way that the court does through the CPR.
Indeed what will be the status of this declaration? Where a report is submitted without a signed declaration, would the adjudicator be entitled to completely disregard the evidence on this basis? Would the courts support the adjudicator’s stance or could this instead be regarded as a breach of natural justice, making the adjudicator’s decision unenforceable?
In truth, the only real safeguard is that most experts want to be respected as professionals. Generally, they belong to professional bodies that require them to conduct themselves in an appropriate fashion. Therefore, perhaps the better approach is for those professional bodies to follow organisations like RICS, which requires its members to comply with its guidance when acting as an expert. This guidance does not distinguish between the different forms of dispute resolution. Amongst other things, RICS members are required to include a long list of declarations at the end of their reports. This requirement is in a practice statement (PS 5.4), which is compulsory for members to comply with and a disciplinary offence if breached.
It is not apparent from the working party’s report the extent to which they have the support of the key adjudicator nominating bodies (ANBs). Rather they hope to hear from “as many professional bodies as possible”. Therefore, we will need to wait and see how the industry responds to this proposal.
Finally, if introducing a declaration would be helpful for experts, why not for witnesses of fact too? Is it time for another consultation, or would that be seen as moving too far away from the “rough justice” of adjudication?
This article was first published by Practical Law Construction as part of our regular construction blog series in which we share our practical experiences of working in construction and engineering and give our opinion on the current and future legal developments that shape and will shape the industry. To read more from the series, visit the Practical Law blog.