What does being “independent” mean to you?

The subject matters of many construction disputes are complex and may require the assistance of an expert witness. Their role is to assist the tribunal by providing independent specialist knowledge on a subject matter. The expert must not only be independent, i.e. uninfluenced by others, but must be seen to be independent. While this is understood in legal circles, this can be misunderstood by the client responsible for the expert’s fee.

An expert that is independent should be seen by clients as a benefit. A client that is provided with an independent opinion is in a much better position to understand the strength of their case and, with the support of their legal team, select the correct strategy for resolving their dispute.

Of course, not all disputes end in front of a tribunal. The expert must always consider that the opinion given may be tested in cross-examination. Experts that are considered in their opinions will not only be prepared for cross-examination but will provide the balanced, independent opinion that the role requires. The courts in England and Wales are unsympathetic of an expert witness who is not independent and has not complied with their duties required under the Civil Procedure Rule (CPR) Part 35. Courts have been known to criticise expert witnesses in their judgments.

Experts must be aware that different jurisdictions may have different views on the role of the expert witness. While the expert may have a contractual duty to their client, the overriding duty is to the tribunal. Experts must be aware of the laws and/or the applicable rules in the case of arbitration and that they understand their duty properly. Experts must also consider the requirements of their professional body, such as the RICS Surveyors Acting as Expert Witnesses Practice Statement.

It is not unusual for a dispute to be started based on claims that have not been fully substantiated, only for the expert to find that the facts do not fit the claim made. Experts must be alive to the fact that such a situation needs to be managed along with the client’s expectation – independence comes with its difficulties at times.

The expert witness needs to be thorough and explain the matters clearly and objectively. The role requires a detailed examination to be helpful and analytical. The tribunal will be looking for the expert to be fair, balanced, and objective.

When it comes to being an independent construction expert witness, honesty is definitely the best policy.

To find out more about Adair’s Dispute Resolution Service, contact Stewart Owen +44 (0)203 740 0160.