The New TCC Guide and the Pre-Action Protocol for Construction and Engineering Disputes

a presentation by

KATE GRANGE

Tuesday 23rd May 2006

Introduction.............................................................................................................................................2

(1) The Pre-Action Protocol ...............................................................................................................3

(2) Case allocation in the TCC...........................................................................................................9

(3) Expert Evidence in the TCC....................................................................................................... 12

The Civil Justice Council Protocol for the Instruction of Experts to Give Evidence in Civil Claims......................................................................................................................................... 13 The Academy of Experts Code of Practice for Experts.............................................................. 13 Second Edition of the TCC Guide .............................................................................................. 14 The use of experts at the pre-action stage and the transition into a Court-appointed expert ...... 15 Single Joint Experts .................................................................................................................... 17 Recent criticisms of experts and lessons to be learned............................................................... 19

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Introduction

1. Since October 2000 the Construction and Engineering Pre-Action Protocol has been

in force. Its introduction has been hailed as a success despite the fact that a number of

ongoing concerns remain. On 3rd October 2005 the 2nd Edition of the TCC Guide

came into force. Its aim is to provide practical, straightforward guidance to the

conduct of litigation in the TCC.

2. The aim of this talk is to explore the following topics:

a. The Pre-Action Protocol and in particular:

i. The further guidance provided by Section 2 of the new TCC Guide;

ii. The recoverability of costs of complying with the Protocol;

iii. The applicability of the Pre-action Protocol to Part 20 Proceedings.

b. Case allocation in the TCC;

c. Expert Evidence in the TCC;

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(1) The Pre-Action Protocol

3. In the Access to Justice Report 1996 (Chapter 10) Lord Woolf said that pre-action

protocols:

“…are intended to build on and increase the benefits of early but well-informed settlements which genuinely satisfy both parties to a dispute. The purposes of such protocols are: (a) to focus the attention of litigants on the desirability of resolving disputes without litigation; (b) to enable them to obtain the information they reasonably need in order to enter into an appropriate settlement; or (c) to make an appropriate offer (of a kind which can have costs consequences if litigation ensues); and (d) if a pre-action settlement is not achievable, to lay the ground for expeditious conduct of proceedings.

4. In the 5 years since its introduction the Pre-Action Protocol for Construction and

Engineering Disputes has worked well in terms of achieving these aims. However a

number of problematic areas remain including the abuse of the procedure in the case

of speculative claims and confusion regarding the requirements for disclosure of

documents.

5. The 2nd Edition of the TCC Guide contains a discrete section which deals with the

Protocol – i.e. Section 2. This Section goes some way towards clarifying those areas

which have been the subject of confusion. In particular the following extracts from

Section 2 should be noted:

2.1.3 Proportionality. The overriding objective (CPR rule 1.1) applies to

the pre-action period. The Protocol must not be used as a tactical

device to secure advantage for one party or to generate unnecessary

costs. In small TCC claims (such as those likely to proceed in the

county court), the letter of claim and the response should be simple

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and the costs of both sides should be kept to a modest level. In all

cases the costs incurred at the Protocol stage should be proportionate

to the complexity of the case and the amount of money which is at

stake. The Protocol does not impose a requirement on the parties to

marshal and disclose all the supporting details and evidence that may

ultimately be required if the case proceeds to litigation.

6. It should be noted that the TCC Guide also introduces the requirement that…

2.5.2 Normally the parties should include in the bundle for the first case

management conference: (a) the letter of claim, (b) the response, and

(c) any agreed note of the pre-action meeting: see Section 5 below.

The documents attached to or enclosed with the letter and the response

should not be included in the bundle.

7. Whilst the Court will be interested to know whether the substantive requirements of

the pre-action protocol have been complied with, the Guide contains the following

statement:

2.6.3 The court is unlikely to be concerned with minor infringements of the

Protocol or to engage in lengthy debates as to the precise quality of

the information provided by one party to the other during the Protocol

stages. The court will principally be concerned to ensure that, as a

result of the Protocol stage, each party to any subsequent litigation

has a clear understanding of the nature of the case that it has to meet

at the commencement of those proceedings.

8. In terms of the costs of compliance with the pre-action protocol, clarification is

provided in section 2.7 of the Guide which provides as follows:

2.7 Costs of compliance with the Protocol.

2.7.1 If compliance with the Protocol results in settlement, the costs incurred

will not be recoverable from the paying party, unless this is

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specifically agreed.

2.7.2 If compliance with the Protocol does not result in settlement, then the

costs of the exercise cannot be recovered as costs, unless:

• those costs fall within the principles stated by Sir Robert Megarry V-C

in Re Gibson’s Settlement Trusts [1981] Ch 179; or

• the steps taken in compliance with the Protocol can properly be

attributable to the conduct of the action.

9. This is consistent with the judgment of HHJ Peter Coulson QC in the recent case of

McGlinn v Waltham Contractors (2005) 3 All ER 1126, (2005) BLR 432, 102 Con

LR 111 where he stated:

13. Accordingly, as a matter of general principle, it seems to me that claims which were made at the time of the Pre-Action Protocol procedure, but which were then deliberately excluded from the court proceedings (because those proceedings were “framed narrowly”) bear, in Sir Robert Megarry’s words, “no real relation” to the subject of the litigation. The costs incurred in dealing with them would not therefore be costs incidental to those proceedings. This particular case gives a good example of that general principle. The proceedings against HTA have now been sufficiently narrowed such that there is now only one real subject, namely the defective work alleged by the Claimant. The valuation claims, based on allegations of over-payment to Waltham, comprised a different category or type of claim, and have now been excluded from the proceedings. They therefore bear no real relation to the subject matter of the proceedings against HTA. 14. From a wider perspective, I should add that, in my judgment, it would be contrary to the whole purpose of the Pre-Action Protocols, which are themselves such an integral part of the CPR, if claiming parties were routinely penalised if they decided not to pursue claims in court which they had originally included in their Protocol claim letters. The whole purpose of a Pre-Action Protocol procedure is to narrow issues and to allow a prospective Defendant, wherever possible, to demonstrate to a prospective Claimant that a particular claim is doomed to failure… It would be wrong in principle to penalise the Claimant for abandoning claims which the Defendants had demonstrated were not going to succeed, because to do so would be to penalise the Claimant for doing the very thing which the Protocol is designed to achieve. 15. In this respect, Miss Garrett identified a number of passages in volume 1 of the White Book dealing with the importance of Pre-Action Protocols. It is unnecessary for me to cite them all. However, at paragraph C1A-009, the

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learned editors make this telling point:

“Letters of claim and response are not intended to have the same status as a statement of case (a pleading). It would defeat the purpose of the protocols if a party were penalised for subsequently clarifying his/her claim or defence when proceedings were issued. However, parties should be wary of making substantial changes without explaining why this is necessary as, without good reason, this could amount to ‘unreasonable conduct’”.

16. Accordingly, I consider that, as a matter of principle, unless the circumstances are exceptional and thereby give rise to some sort of unreasonable conduct, costs incurred by a Defendant at the Pre-Action Protocol stage in successfully persuading a Claimant to abandon a claim (either in whole or in part) are not costs incidental to any subsequent proceedings if, in those subsequent proceedings, such claims do not feature at all. Accordingly, such costs are not recoverable under Section 51….

10. An interesting question arises when considering the application of the Pre-Action

Protocol to Part 20 proceedings. This issue was recently considered by Jackson J in

Alfred McAlpine Capital Projects Ltd v SIAC Construction UK Ltd & Others (19th

December 2005) (unreported). In that case various Part 20 Defendants who had been

joined into the action sought a stay of the proceedings on the grounds that the Pre-

Action Protocol had not been complied with in respect of their claims. The pre-action

protocol had been complied with by the Claimant and Defendant, but this had not

specifically included a number of Part 20 Defendants who the Defendant joined at the

time of service of its defence.

11. In Daejan Investments Ltd v Park West Club Ltd [2004] BLR 223 HHJ Wilcox held

that the Pre-Action Protocol applied equally to Part 20 proceedings, however he did

not address the difficulty highlighted in the McAlpine case where the main

proceedings were already on foot and the question arose as to whether they should be

stayed in order to allow the Part 20 Defendants the opportunity to work through the

Pre-Action Protocol. In deciding whether to grant a stay, Jackson J held that a

number of factors ought to be taken into account by the Court including:

• When it was known that litigation was in contemplation.

• What information regarding the action was given to the Part 20

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Defendant(s) and when.

• What part do the Part 20 Defendant(s) play in the matter?

• What stay can be given without jeopardising the litigation timetable?

• What is the likely impact in terms of costs.

• Is there any way that a new party could be put in the same position as

if the protocol had been followed?

12. Jackson J held that the Court should attempt, where possible, to maintain the existing

timetable, but ought also to take into account the respective positions of the parties,

particularly where there were weaker parties. Of particular importance in that case

was the fact that the litigation timetable already included provision for a mediation i.e.

the litigation timetable was not dissimilar from that which would have taken place

pursuant to the protocol.

13. Finally it should be noted that a Working Party has been set up in order to consider

whether any particular changes ought to be made to the Pre-Action Protocol. The

working party consists of Mr Justice Ramsey, His Honour Judge Havery QC,

Caroline Cummins (TeCSA), Allen Dyer (TECBAR) and Philip Morris (Industry

Representative). On 16th January 2006 the Working Party produced its Interim Report

which has been issued for consultation purposes (see www.tecsa.org.uk). This report

considers potential changes to the Protocol and highlights the following issues for

discussion:

a. Whether the maximum period of 4 months for a response to a letter of claim is

too long;

b. Whether further provisions are necessary to deal with the question of the

recoverability of pre-action costs;

c. Whether there should be further provisions regarding disclosure of key

documents in order to avoid problems which occur where one party does not

reasonably co-operate with this process.

d. Whether there should be further provisions regarding multiple parties and in

particular Part 20 Defendants.

e. Whether the Protocol should include a standard provision for ADR.

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14. Any comments on the suggestions contained in the interim report should be forwarded

to the Working Party.

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(2) Case allocation in the TCC

15. The second edition to the TTC Guide contains detailed provisions dealing with the

classification of cases upon commencement in the TCC. The relevant provisions are

as follows:

3.7 Assignment

3.7.1 Where a claim has been issued at or transferred to the TCC at St Dunstan’s

House in London, the Judge in Charge of the TCC (“the Judge in Charge”)

shall with the assistance of court staff classify the case either “HCJ” or

“SCJ”.

(i) If the case is classified “HCJ”, it shall be managed and tried either by the

Judge in Charge or by another High Court judge, who will be identified after

consultation between the Judge in Charge and the Vice-President of the

Queen’s Bench Division. The clerical administration of “HCJ” cases will be

carried out by the Case Administration Unit (“CAU”) of the TCC at St

Dunstan’s House. The CAU will also deal with the listing of all applications

and trials in such cases.

(ii) If the case is classified “SCJ”, it shall be managed and tried by one of the

senior circuit judges, who is a full time TCC judge in London. Cases in the

latter category will either (a) be assigned by the Judge in Charge to a specific

senior circuit judge or (b) be assigned to a senior circuit judge by operation of

the rota. The assigned judge will have primary responsibility for the

management of that case.

(iii) Although continuity of judge is regarded as important, it will sometimes

be necessary for there to be a change of assigned judge. If no judge is

available during the period fixed for trial, then the case may be tried by one of

the deputy judges or recorders who has been nominated by the Lord

Chancellor under section 68 (1) (a) of the Supreme Court Act 1981.

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3.7.2 When classifying a case “HCJ” or “SCJ”, the Judge in Charge will take into

account the following matters, as well as all the circumstances of the case:

1. The size and complexity of the case.

2. The nature and importance of any points of law arising.

3. The amount of money which is at stake.

4. Whether the case is one of public importance.

5. Whether the case has an international element or involves overseas

parties.

6. The limited number of High Court judges and the needs of other court

users, both civil and criminal.

Most TCC cases in London will be classified “SCJ”. The Judge in Charge

may change the classification of any case from “HCJ” to “SCJ” or from

“SCJ” to “HCJ”, if it becomes appropriate to do so. There will be a band of

cases near the borderline between “HCJ” and “SCJ”, where the

classification will be liable to change depending upon the settlement rate of

other cases and the availability of judges.

3.7.3 When proceedings are commenced in, or transferred to, the TCC at St

Dunstan’s House in London, any party to those proceedings may write to the

court setting out matters relevant to classification. Any such letter must be

clear and concise. It will seldom need to exceed one page and must never

exceed two pages.

16. Mr Justice Jackson has indicated that paragraph 3.7.3 of the new TTC Guide has been

“almost universally disregarded” and has issued a request for litigants and their

advisors to comply with paragraph 3.7.3 in any case where the classification “HCJ”

may be appropriate. Such letters should address those criteria set out at paragraph

3.7.2 of the Guide and it should be noted that this can be done by any party i.e. by

both claimants and defendants. Further Jackson J has issued a plea to solicitors and

counsel’s clerks to provide, where possible, an indication as to whether cases are

likely to settle. Whilst such indications may change over time such indications assist

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the TCC in being able to honour early hearing dates.

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(3) Expert Evidence in the TCC

17. In the Access to Justice Reports, expert evidence was identified as a major source of

problems in the civil justice system (see Interim Report Chapter 23 and Final Report

Chapter 13). Of particular concern was the excessive expense, delay and increased

complexity through excessive or inappropriate use of experts. Concerns were also

expressed about the failure of experts to maintain their independence. As a result the

principal recommendation was that the calling of expert evidence should be subject to

complete control of the Court.

18. Expert evidence is very often of critical importance in the resolution of construction

and engineering disputes. By definition the nature and complexity of the issues which

arise in this area depend upon expert input, often from a very early stage. It is not

uncommon for cases to involve multiple experts, thereby exacerbating the problems

identified above.

19. Of particular importance in this context is the introduction of the following:

• The new Civil Justice Council Protocol for the Instruction of Experts to Give

Evidence in Civil Claims which was introduced on 22nd June 2005 by the

Master of the Rolls and came into force on 5th September 2005.

• The new Code of Practice for Experts jointly prepared by The Academy of

Experts and the Expert Witness Institute dated June 2005.

• The Second Edition of the TCC Guide which contains detailed provisions in

section 13 in respect of expert evidence.

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The Civil Justice Council Protocol for the Instruction of Experts to Give

Evidence in Civil Claims

20. Recently the Civil Justice Council produced this long overdue consolidated code of

guidance for experts and those instructing them. The introduction of the Protocol was

announced on 22nd June 2005 by the Master of the Rolls, Lord Phillips of Worth

Matravers and it came into force on 5th September 2005. It was written by Mr Justice

Bean and His Honour Judge Nic Madge and it replaces the existing codes of guidance

contained in the Academy of Experts and the Expert Witness Institute Codes. A copy

of the Protocol is available at www.civiljusticecouncil.gov.uk.

21. The Protocol not only serves as a useful backdrop to the legal issues arising in this

area but also serves as a practical guide for experts and practitioners. Commentators

have described it as a code “with teeth” due to its explicit reference to a number of

sanctions for failure to comply with its provisions1.

22. The existence of the protocol does not remove the need to be familiar with Part 35 and

its practice direction. It is expressly stated that it is “intended to assist in the

interpretation of those provisions in the interests of good practice but it does not

replace them” (para 2.1)

The Academy of Experts Code of Practice for Experts

23. On 22nd June 2005, at the same time as the Master of the Rolls, Lord Philips, launched

the Civil Justice Council Protocol he also endorsed the Code of Practice for Experts

jointly prepared by The Academy of Experts and the Expert Witness Institute. The

intention of the Code is to set minimum standards for all those involved as expert

witnesses, regardless of their profession or expertise. Copies of the Code can be

downloaded from www.academy-experts.org or www.ewi.org.uk.

24. Points to highlight include the following:

1 “A new, single protocol – with teeth” Kate Elsmore and Chris Langford (Mayer Brown Rowe & Maw) NLJ

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• Pursuant to part (i) experts shall not do anything in the course of practising which

compromises/impairs their independence/impartiality/objectivity/integrity, their

duty to the court, the good repute of experts generally, the expert’s proper

standard of work and the duty to maintain confidentiality.

• Experts retained in proceedings should not enter into an arrangement likely to

compromise his impartiality nor make his fee dependent on the outcome of the

case, nor accept benefits other than fees and expenses (part (ii)).

• Experts are required to maintain with a reputable insurer, proper insurance for an

adequate indemnity (part iv).

• Experts shall not publicise their practices in any manner which may reasonably be

regarded as being in bad taste. Publicity must not be inaccurate or misleading in

any way (part v).

• Experts shall comply with all appropriate codes of practice and guidance.

Second Edition of the TCC Guide

25. Recognising the importance and prevalence of expert evidence in the TCC, the Guide

emphasises that “from the earliest pre-action phase” the parties and the Court must

“seek to make effective and proportionate use of experts”.

26. The Guide is realistic as to the involvement of experts at the pre-action stage. It

recognises the tension between the involvement of such experts and the Court’s desire

to limit expert involvement and/or appoint joint experts. This topic is discussed

further below.

27. Detailed guidance is also provided as to the use of joint experts in this context. This

is also discussed further below.

Expert Witness Supplement Vol 155 No. 7187 Pages 1141-1188

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28. At paragraph 13 the desirability of meetings between experts at all stages of the pre-

trial preparation is emphasised. The purposes of such meetings are specifically

defined. Whilst legal advisors may provide assistance as to the agenda topics to be

discussed at such meetings, the legal advisors must not attend the meeting.

29. At paragraph 13.6 the importance of experts’ joint statements is emphasised. At

13.6.2 it is stressed that even where experts have been unable to agree very much, it is

of considerable importance that the statement sets out their disagreements and the

reasons for them. Legal advisors must not be involved in either negotiating or

drafting the experts joint statement.

30. Paragraph 13.7 deals with the experts reports themselves. Whilst the parties decide

the issues which the expert should deal with, it is for the expert to draft and decide on

the detailed contents and format of his report (para 13.7.2).

31. The Guide makes specific reference to the fact that it is appropriate for the party

instructing an expert to indicate that (a) it should be as short as is reasonably possible,

(b) it should not set out copious extracts from other documents, (c) it should identify

the source of any opinion or data relied upon and (d) it should not annex or exhibit

more than is reasonably necessary to support the opinions expressed in the report

(para 13.7.2). Sub-paragraphs (a) and (d) above clearly evidence a desire on the part

of the TCC to keep expert reports to the minimum length necessary.

The use of experts at the pre-action stage and the transition into a Court-

appointed expert

32. The new Civil Justice Council Protocol draws the distinction between expert advisors,

whose evidence the parties do not intend to adduce in litigation, and those experts

who are instructed to give or prepare evidence in civil proceedings. The Protocol

does not apply to the former and it specifically states that advice which is not intended

to be adduced in litigation “is likely to be confidential” (para 5.1).

33. The Protocol does however apply to experts who were formerly instructed as “expert

advisors” and who are later instructed to give or prepare evidence for the purposes of

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civil proceedings. It is assumed however that the Protocol does not apply

retrospectively in this regard and will only cover the involvement of the expert from

the date of the later instructions).

34. This raises the important question of how this transition in the role of the expert is

dealt with. One moment the expert is assisting the party in the preparation of their

pre-action statements of case, the next they are appointed as expert in the litigation,

with all the incumbent duties to the Court. This transition presents challenges for the

expert and for those instructing them. Aside from issues of privilege, all relevant

parties need to appreciate the shift which has to occur at this point and those

instructing experts would be well advised to mark this shift by informing the expert in

detail about the duties involved with his or her new role.

35. The new TCC Guide specifically envisages the involvement of experts at the pre-

action stage. At paragraph 13.3.3 it is stated that:

Parties should, where possible, disclose initial or preliminary reports to opposing parties prior to any pre-action protocol meeting, if only on a without prejudice basis. Such early disclosure will assist in early settlement or mediation discussions and in helping the parties to define and confine the issues in dispute with a corresponding saving in costs.

36. This is consistent with the Pre Action Protocol for Construction and Engineering

Disputes where it is specifically envisaged that the subject of expert evidence will be

discussed at the pre-action meeting. At paragraph 5.5 of the Pre-action Protocol it

provides that if the parties are unable to agree on a means of resolving the dispute

other than litigation, the parties should use their best endeavours to agree whether if

there is any expert requited, a joint expert should be appointed and if so who that

should be.

37. The TCC Guide also recognises the “unresolved tension” between the need to

involve experts at an early pre-action stage and the need for the court to seek,

wherever possible, to reduce the cost of expert evidence by dispensing with it

altogether or by encouraging the use of jointly appointed experts.

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“This tension arises because the court can only consider directing joint appointments or limiting expert involvement long after a party may have incurred the cost of obtaining expert evidence and have already relied on it. Parties should be aware of this tension.”

In such circumstances the Guide advises that “so far as possible the parties should

avoid incurring the costs of expert evidence on uncontroversial matters” or matters

involving low value claims or subsidiary issues, until before the first CMC has been

held (para 13.3.1).

Single Joint Experts

38. The New TCC Guide contains detailed guidance regarding the use of single joint

experts. A realistic approach is evident here with appropriate recognition that given

the size and complexity of many such disputes, the scope for joint experts will be

more limited than in other fields. At paragraphs 13.4.2 and 13.4.3 it is stated:

13.4.2 Single joint experts are not usually appropriate for the principal liability disputes in a large case, or in a case where considerable sums have been spent on an expert in the pre-action stage. They are generally inappropriate where the issue involves questions of risk assessment or professional competence. 13.4.3 On the other hand, single joint experts can often be appropriate:

(a) in low value cases, where technical evidence is required but the cost of adversarial expert evidence may be prohibitive; (b) where the topic with which the single joint expert’s report deals is a separate and self-contained part of the case, such as the valuation of particular heads of claim; (c) where there is a subsidiary issue, which requires particular expertise of a relatively uncontroversial nature to resolve; (d) where testing or analysis is required, and this can conveniently be done by one laboratory or firm on behalf of all parties.

39. In the recent decision of Quarmby Electrical Limited v John Trant [2005] EWHC 608

Jackson J gave guidance in respect of the use of single joint experts in lower value

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construction cases. The following extracts should be noted:

53. I fully accept that in the larger construction cases the device of a single joint expert is generally reserved for subordinate issues or relatively uncontroversial matters. However, in the smaller cases, such as this one, if expert assistance is required, it is difficult to see any alternative to the use of a single joint expert in respect of the technical issues. If adversarial experts had been instructed to prepare reports and then give oral evidence in the present case, I do not see how there could have been a trial at all. The respective experts' fees and the trial costs would have become prohibitive. In lower value cases such as this one, I commend the use of single joint experts. The judge, of course, remains the decider of the case. He is not bound by everything which the single joint expert may say. However, the judge is able to perform his functions within more sensible costs parameters. 54. The Civil Procedure Rules enable both parties to put written questions to a single expert: see Rule 35.6. This facility was used in the present case. Part 35 of the Civil Procedure Rules and the accompanying practice direction are silent on the matter of a single joint expert being called to give oral evidence. The commentary at paragraph 35.7.1 of the current edition of the White Book states:

"If a single joint expert is called to give oral evidence at trial, it is submitted, although the rule and the practice direction do not make this clear, that both parties will have the opportunity to cross-examine him/her, but with a degree of restraint, given that the expert has been instructed by the parties."

It must be a matter for the discretion of the judge whether oral examination of a single joint expert is appropriate. In a case where the single joint expert is dealing with major issues, such oral examination might be appropriate and proportionate. In such a case it is the practice of other TCC judges to whom I have spoken, and indeed of myself, for the judge to call the expert, and then for both sides to cross-examine. However, where the report of the single joint expert comes down strongly on the side of one party, it may be appropriate to allow only the other party to cross-examine. 55. Before leaving the topic of single joint experts I wish to make four further comments: (1) The choice of single joint expert is important. He should be someone in whom both parties have confidence. (2) If the case is one in which it might become appropriate for the single joint expert to give oral evidence and be cross-examined, it is desirable to alert the expert to this possibility when he is invited to accept instructions. (3) Experience shows that quite often the instruction of a single joint expert

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leads to settlement of the whole litigation. (4) The procedure for dealing with single joint experts should, so far as possible, be addressed at case management hearings in advance of trial. Also provision should be made for securing payment of the fees of single joint experts before they undertake work.

Recent criticisms of experts and lessons to be learned

40. In a number of recent cases, Judges have demonstrated that they are willing, where

appropriate, to criticise expert evidence on the grounds that it was not independent or

objective. These criticisms have particularly occurred in the field of programming

evidence and they give rise to important “lessons to be learned” both for the experts

themselves and for those instructing them.

41. In Pearce & Others v Ove Arup Partnership & Others (2nd November 2001) ChD

Jacob J considered an action for alleged plagiarism on the part of an architect. The

Defendant architect was also accused of matters beyond mere plagiarism including

surreptitiously and dishonestly making or obtaining copies of the Claimant’s plans

and using these directly in the design of the Kunsthal in Rotterdam. In support of

these allegations the Claimant relied on the expert evidence of an architect. The

Judge concluded that the allegations were without any foundation whatsoever – they

were of “pure fantasy – preposterous fantasy at that”. In the Court’s judgement the

conduct of the Claimant’s architectural expert “fell far short of the standards of

objectivity required of an expert witness”. After listing a number of “blunders” which

the expert had made in his report, the Judge noted that:

“He came to argue a case. Any point which might support that case, however flimsy, he took. Nowehere did he stand back and take an objective view as an architect as to how the alleged copying could have been done. Mr X bears a heavy responsibility for this case ever coming to trial – with its attendant cost, expense and waste of time, including Mr Y’s loss of professional time.”

In those circumstances the Judge decided to refer the expert’s conduct to his

professional body, the RIBA. In order to ensure fairness to the expert, he delayed the

sending of his judgment to the RIBA in order to give the expert time to make

appropriate representations on his own behalf.

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42. In Skanska UK Limited v Egger (Barony) UK Limited (unreported) (30th July 2004)

HHJ Wilcox heavily criticised the Defendant’s programming expert as to the manner

in which he carried out his task.

415. Mr X produced a report of some hundreds of pages supported by 240 charts. It was a work of great industry incorporating the efforts of a team of assistants in his practice. It profits from Mr X’s input based on his practical experience. Of recent years 75% of his energies have been devoted to the forensic field as a professional expert or arbitrator and 25% to his delay consultancy practice. It was evident that the report, which did not cover all aspects of Mr Y’s evidence, was largely based upon factual matters digested for Mr X by his assistants and in part relying upon data provided by Mr Dent who administered the contract with Mr Gardner for Egger and Mr Harry Phillipson who was works manager for Egger. Neither Mr Phillipson or Mr Dent gave evidence as to these matters. Both were available to do so. Both were working upon the Egger case defending the claimant’s claim and on the counterclaim made by Egger. There were times when the impression was created that Mr X was not entirely familiar with the details of the report, which he signed and presented. At one time he told me that Mr Dent and Mr Phillipson were only consulted upon details of logic linking. He later had to concede because it was written in his own report that their role was also as to primary factual matters resolving factual inconsistencies that presented themselves. There were pressures of time upon him. This and the extent of reliance upon the untested judgment of others in selecting and characterising the data for input into the computer programme however impeccable the logic of that programme, adversely affects the authority of the opinion based upon such an exercise. The delay issue relating to the Liebherr crane base in Zone E epitomises the unreliability of Mr X’s evidence based upon his inadequate research and checking, even when he was put on notice.

419. It is evident that the reliability of Mr X’s sophisticated impact analysis is only as good as the data put in. The court cannot have confidence as to the completeness and quality of the input into this complex and rushed computer project. The impact analysis was primarily concerned with the critical path analysis of delays and for its intended logic to work it needed a network, thus the contract programme originally in bar chart form, graphically expressed using Power project format had to be reconstructed in network form, together with the construction programme produced by Skanska in May of 1997.

424.…I was not impressed with the evidence of Mr X for the reasons I have set out above. It was not thorough. It was not complete. He only directly considered critical delay and did not really address disruption and he proceeded from the wrong premise in relation to sub-contract periods which proceeded on the basis of that which is agreed between SCL and the sub-contractor.

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43. In Great Eastern Hotel Company v John Laing Construction Ltd & Another [2005]

EWHC 181 (TCC) HHJ Wilcox not only did not accept the programming evidence of

the Defendant’s expert, but went further in criticising him in his approach to his task

as an expert. The following passage highlights the Judge’s dissatisfaction with the

expert’s evidence:

128. Mr X ultimately, in cross-examination, as he had to, revised his opinion as to the criticality of the protection of the Railtrack services to the project. His failure to consider the contemporary documentary evidence photographs and his preference to accept uncritically Laing’s untested accounts has led me to the conclusion that little weight can be attached to his evidence save where it coincides with that of Mr Y. I sadly conclude that he has no concept of his duty to the court as an independent expert. Despite seeing the photographs and material contained in Mr Y’s two reports received and read by him in May, totalling undermining credit and accuracy of Mr Z’s account upon which he relied, he chose not to revisit his earlier expressed views in accordance with his clear duty to the Court.

44. The extracts set out above reveal important lessons to be learned, particularly in areas

involving highly complex evidence eg. programming matters. In this regard it is just

as important to focus upon the roles and responsibilities of those instructing experts as

it is the experts themselves. With the benefit of hindsight the following points emerge

from the cases outlined above.

• Those instructing experts must ensure that the expert case is constantly re-

evaluated in the light of new factual evidence and/or new opinion evidence. It is

understandable given the pressures of litigation for a huge amount of work to go

into the first round of reports and then for someone to “take their eye off the ball”

as the case unfolds and further evidence emerges.

• Experts should be reminded during the litigation of their obligations to the Court,

particularly where developments occur in the evidence which cause them to re-

evaluate their views.

• Where evidence is presented in a highly complex format – perhaps involving

computer analyses, those instructing experts should ensure that the expert is “up to

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speed” with the detail of the case and has a good grasp of the wider picture.

Simple and effective ways of presenting complex evidence should be considered.

• Where experts have assistants who help with the preparation of reports those

instructing experts must be clear that the role of these individuals has been

explained in the experts reports and that the main expert is familiar with the detail

of the case.

• Where the client is providing factual evidence upon which the expert bases his

opinions, those instructing experts must be alive to the situation whereby such

factual evidence is proved to be unreliable. For example upon exchange of

witness statements, it may become evident that the client’s factual account is

inaccurate or incomplete. In those circumstances the expert may need to re-

evaluate his conclusions against those alternative facts.

• The need to “step back” from the expert evidence and consider the Judge’s

reaction to the report is of considerable importance at all stages of the process.

Familiarity with the report frequently results in a failure to ensure that it is as clear

and as comprehensible as possible for the tribunal.

Kate Grange

23rd May 2006