Diales Compendium Issue 3 - Flipbook - Page 16
Assisting the court or tribunal
Tom Comerford
Diales Quantum Expert
One of the primary purposes of expert evidence is to
assist the court or arbitral tribunal in its reasoning and
decision-making process on matters that are within the
expert’s expertise. Legal and arbitral processes often have
differing requirements of expert evidence, depending on the
geographical location, nature and format of the proceedings.
This article explores ways in which, in general terms, a partyappointed expert can provide assistance to a court or tribunal
in the context of construction disputes.
Ordinarily, expert evidence in construction disputes is
independent opinion evidence, as distinguished from factual
evidence, and is usually contained in written reports and/
or statements included as part of the parties’ submissions.
That independent opinion evidence may be presented and
tested in court or arbitration proceedings.
The expert’s primary duty is to the court1 or tribunal, but, as
established in the case of Jones v Kaney2, the expert also has
a duty to his or her client not to be negligent.
THE ADMISSIBILITY OF THE EXPERT’S EVIDENCE
The admissibility of evidence will, in many cases, be governed
by the applicable rules of evidence, be at the tribunal’s
discretion or be by agreement. These are likely to limit what
is presented as evidence.
Generally, expert evidence requires leave of
the court to be presented3, albeit this differs
in the case of institutional procedural rules4 in
arbitration.
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The Civil Procedure Rules (‘CPR’) Part 35.4 requires, amongst
other things, the court’s permission to call an expert or
put in evidence the expert’s report. The directions order
or procedural order is where the court or tribunal typically
conveys the details of the expert and other evidence that
will be allowed and these may specify the issues which the
expert should address. Those issues will logically relate to
the disputed issues and the parties’ positions in relation to
those. The expert does not decide the disputed facts or the
law (including contractual liabilities or obligations).
The expert’s opinion evidence can assist the court or
tribunal in various ways, sometimes in the understanding
of the factual evidence, particularly in the case of specialist
technical matters or, by setting out the facts, literature,
materials or anything else that the expert has relied on in
forming their opinions, in order for the court or tribunal to
make findings of fact. In other instances, such as in complex
factual situations, where there may be large amounts of data,
for example in construction disruption disputes, depending
on how the evidence is presented, the expert often assists
in effectively marshalling, distilling and communicating the
facts as part of the rationale for his or her opinion.
THE EXPERT’S CREDENTIALS
To be capable of being of assistance to the court or tribunal
it is expected that, ordinarily, experts will have either, or a
combination of, relevant education, knowledge or experience
in their field of expertise. The 2011 Law Commission report
on ‘Expert Evidence in Criminal Proceedings in England and
Wales’ set out four requirements relating to the admissibility
of expert evidence.