Diales Compendium Issue 3 - Flipbook - Page 18
EXCHANGE OF EXPERT REPORTS AND MEETING(S) OF
EXPERTS
The preparation of a well-structured and compliant report,
adopting the guidance above, that clearly deals with the
issues, should result in a focused document, more readily
capable of comparison, which can then be exchanged on an
‘open’15 or ‘without prejudice’16 basis. Such a report should
assist in the next step of the expert process, that being a
constructive ‘without prejudice’17 meeting of experts to
further agree points and narrow the differences18. Meetings
of experts in court proceedings, without a prior exchange of
reports, is not uncommon, albeit it will still be necessary for
the expert to have undertaken a number of the steps, he or
she would have done prior to the drafting of the report, in any
event.
Mindful of any issues the court or tribunal may have specified
to be discussed and any agreed agenda, at the meeting, the
experts may agree on, amongst other things, the issues,
terminology, methodology and the points that they concur on.
By way of example, the early agreement of the methodology
for a delay analysis, or a disruption claim, can have significant
time and cost advantages. Practice Direction 35, paragraph
9.2, sets out what is required from the experts meeting in the
form of a statement that identifies the extent of agreement,
points of and reasons for any disagreement, actions if any to
be taken to resolve any outstanding points of disagreement,
and any further material issues not raised and the extent to
which they are agreed.
If the experts reach agreement on points or issues, then that
is expected to hold significant evidential weight. Given that
the experts’ joint statement is most likely to be presented to
the court or the tribunal, in my experience, it is important that
this statement is clearly written and accurately records the
experts’ positions in order to be of the greatest assistance.
In some cases, supplemental reports may be required on the
points that remain in disagreement and the same principles
as set out previously in relation to the experts first report
should be adopted.
The opinions contained in individual reports and joint
statements, particularly as to the points in disagreement,
may be adopted and tested at the court trial or tribunal
hearing. This can be in the form of questions from the judge
or tribunal, cross examination, concurrent witness evidence
or re-examination.
The expert needs to be fully prepared
for this, and be able to respond to
questions in a calm, considered, clear
and unambiguous manner.
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HOW NOT TO ASSIST THE COURT OR TRIBUNAL…
Inevitably, there are many ways in which an expert does not
assist the court or tribunal, examples of which can include:
i. Accepting an appointment on an incentive-based fee.
ii. Lacking in independence and/or objectivity.
iii. Stepping outside the expert’s area of expertise.
iv. Acting as advocate.
v. Selective use of evidence.
vi. Failure to test the validity of materials provided to them.
vii. Accepting instructions from lawyers that will not
knowingly result in a credible report.
viii. Undertaking poor analysis.
There have been numerous published accounts of where
experts have fallen short of their duty to assist the court
or tribunal which I do not repeat here, but which serve as a
continuous reminder of the need for the expert to act in an
objective, independent and impartial manner.
SUMMARY
In summary, a party-appointed expert should fully understand
the duties of an expert, and the rules and protocols that are
applicable to the proceedings, and the standards that are to
be expected of them.
The expert is expected to have either, or a combination of, the
relevant education, knowledge or experience of the issues
in dispute. With these attributes, the expert should produce
a report that is compliant, assists the court or tribunal in
understanding the facts, is logically structured and addresses
the key issues in a coherent, concise and reasoned manner.
The expert’s meetings play an important part in agreeing
points and narrowing the differences, thereby assisting the
court or tribunal in focusing on the matters that it needs
to address. Clear and well drafted joint statements are
important in this process, and experts should be prepared to
invest time in developing those statements.
In the event that the dispute continues to a court trial or
tribunal hearing, then the expert needs to be fully prepared
for such. The expert must be able to respond to questions
and cross-examination in a calm, considered, clear and
unambiguous manner that assists, where possible, the
court or tribunal in its understanding of the facts and in its
decision-making process.
In short, a good expert can be of assistance to the court or
tribunal, by providing written and oral clarity on matters within
the expert’s field of expertise, working with other experts to
narrow differences, and assisting the court to understand the
facts on disputed issues in reaching its decision.