Expert Evidence in Construction Disputes: Expert Witness Perspective

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Introduction

The use of expert evidence is not a new concept.[2] Through the early development of expert evidence, its role was regarded as quite broad, referring to technical experts and people who would now be considered ‘lay witnesses’ with some specialist knowledge.

As the use of expert evidence became commonplace, there grew a need for further clarification of the role of expert witnesses. One of the first definitions of the role of an expert was presented in 1782 by Lord Mansfield in Folkes v. Chadd,[3] in which he stated: ‘The opinion of scientific men upon proven facts may be given by men of science within their own science.’

Considering the complexity of construction and engineering projects, which often include a wide range of participants throughout the construction lifecycle, it is no surprise that expert witnesses are frequently engaged in international construction arbitrations. A substantive body of law has developed over the years around the use of expert witnesses and their conduct.

A typical construction dispute may involve such issues as delay to completion, disruption, damages, changes and variations, defect costs or negligence, among other things, with the need for multiple expert witnesses across varying disciplines. It is not surprising that the use of experts may account for between 30 per cent and 60 per cent of the total cost to arbitrate. In that regard, parties need to be aware of the rules, requirements and practices of expert witnesses and any limitations on their evidence before commencing a lengthy, and probably costly, arbitration.

Many jurisdictions have set clear demarcations of the boundaries in respect of expert witnesses and expert evidence, most prominent of which is an expert’s overriding duty to assist the tribunal; however, it is still common for an arbitral award to criticise the evidence of an expert as having been of little assistance to the tribunal. The tribunal’s criticisms may arise from a range of perceived failings of an expert witness and the adjudged failure of that expert witness to discharge the overriding duty to the tribunal.

Therefore, the effective use and management of expert evidence are significant to all parties involved in arbitral proceedings, including the lay client, the solicitors and the tribunal. Expert evidence and the cost of experts can, and often are, affected by a variety of issues and the early mitigation and management of any potential issues ought to be adopted.

Engaging an expert witness in international arbitration

Both arbitral tribunals and the parties may seek the use of expert witnesses if the matter is complex, which is often the case in construction and engineering disputes. Parties are expected to carefully consider whether expert evidence is the crux of the matter and, therefore, necessary to resolve the issues in dispute.[4]

Most legal jurisdictions have established rules of evidence and codes of practice, which often require that an expert has an overriding duty to the arbitral tribunal to be independent and impartial in his or her opinion. For example, England and Wales have established the Civil Procedure Rules: Rules and Directions, Part 35 (CPR Part 35), which sets out the requirements for expert evidence, specifically requiring that an expert witness has an overriding duty to the court to be independent and impartial.

Contrast this with the United States Federal Rules of Evidence (US FRE) Article VII, which set out the requirements governing the rules for opinion and expert testimony, which is much less prescriptive. Expert evidence in both English jurisdiction and US jurisdiction is adduced to provide the trier of fact with the necessary scientific, or specialist, knowledge to understand and evaluate the evidence. The conduct of expert witnesses, and their overriding duty to serve and assist the court, is not established under the US FRE.

Often the trier of fact in international arbitration is the tribunal, which is well acquainted with expert evidence and is equipped to discern instances where an expert may exceed the boundaries of their expertise. In some jurisdictions, however, expert evidence is presented before a lay jury, who will make decisions of fact and credibility. For example, in the United States, some cases may still be tried before a jury who are likely to be ill‐equipped to evaluate and discern the merit of the expert’s opinion.

When parties enter a formal dispute and proceed to instruct expert witnesses, the rules governing an expert’s evidence for the proceedings must be well understood, as contrasted between CPR Part 35 and the US FRE, above. Typically, witnesses of fact, or lay witnesses, cannot give evidence of opinion in international arbitration. Only witnesses who have specialist knowledge, qualifications or experience in a particular field are permitted to give opinion-based evidence on the facts and matters within their area of expertise.[5] Often the key to a successful working relationship between an expert witness and its instructing solicitors or client is effective management at the instruction stage.

One of the issues parties may want to consider before instructing an expert witness is to identify the specific areas of expertise in which expert evidence may be adduced; for example, parties may consider whether experts have the right qualifications,[6] experience or knowledge in the specialised field and have demonstrable knowledge of the required conduct of an expert witness.[7] It is important to assess whether the expert has the expertise necessary to give opinion evidence on the subject[8] and to select only those issues that require expert knowledge. Experts should remain within the scope as instructed and address issues within their expertise that are specific to the issue, and ensure that they do not stray.[9] Parties may consider experts’ experience in report writing, testifying or providing evidence when appointing experts in arbitration cases.

An expert witness is obliged to identify and raise any conflicts of interest prior to being instructed on a case. The risk of not adequately addressing a conflict, or the appearance of a conflict, may result in the tribunal’s decision that an expert’s evidence is inadmissible or to dismiss the opinion given. Once instructed, experts ought to document any relationships with the parties, including the client, instructing solicitors or tribunal members, as part of their report. Failure to do so may be considered a conflict, or perceived conflict, leading to their evidence being inadmissible.[10]

Following the formal instruction of an expert and depending on the stage of the case when an expert is instructed, he or she may be able to assist with the disclosure and inspection of the documents, consider technical points or address the need for additional disclosure, or assist with the familiarisation of the pretrial bundle and framing questions to put to opposing experts. The Ikarian Reefer[11] case sets the foundation for which expert evidence is provided, which states:

  • experts of the same discipline should be provided with the same information;
  • experts should provide their report unfettered by the pressures of litigation; and
  • the expert is not an advocate of the party.

As it relates to disclosure, expert witnesses are required to work from a common set of documents, shared between the parties. Parties should be warned that providing additional, or supplementary, evidence, exclusive access to the site, personnel or witnesses to an expert without proper disclosure of all materials may have significant consequences. For example, in Dana v. Freudenberg,[12] Mrs Justice Joanna Smith revoked Freudenberg’s permission to rely on expert evidence, concluding that:

The provisions of expert evidence is a matter of permission from the Court, not an absolute right (see CPR 34.4(1)) and such permission presupposes compliance in all material respects with the rules . . . The use of experts only works when everyone plays by the same rules. If those rules are flouted, the level playing field abandoned and the need for transparency ignored, as has occurred in this case, then the fair administration of justice is put directly at risk.

It is vital that experts are working on a level playing field to ensure that the opinions given assist the tribunal in its deliberations. Identifying which information experts use to form their opinions, including assumptions, is important for ensuring the tribunal can understand whether any differences in experts’ opinions are because of their reliance on different facts[13] or assumptions, or for some more fundamental reason.

Duties of an expert witness in international arbitration

The duties of an expert are often established by either the jurisdiction or law governing the arbitration and established in the arbitral institute’s rules. A common issue lay clients need to understand when appointing expert witnesses is their overriding duty to the arbitral tribunal. This means that a client is required to pay, and continue to pay, an expert’s fees even if the expert witness is required to give independent evidence that may not support the client’s case, which may be difficult for some lay clients to understand. Therefore, the risks associated with any attempt at influencing the expert’s evidence or opinions should be well understood.

These risks have been highlighted in recent decisions; for example, in Van Oord v. Allseas,[14] Mr Justice Peter Coulson found a total of 12 distinct reasons to conclude that the evidence of an expert was entirely worthless. In this extreme case, the expert had wholly adopted his client’s pleaded claims without a critical view of whether the underlying documents supported or undermined the case, and adopted the statements made by his client as his own opinion, again without the required scrutiny of the facts of the case.

Although the failure of experts to discharge their duty in an unscrupulous way, as required by the arbitration rules – or, in this case, the CPR Part 35 – is rare, the risk that a client’s influence on the expert’s opinion may undermine the expert’s evidence is an issue that all experts and instructing solicitors ought to be astutely aware of. Independence and impartiality are fundamental to an expert’s credibility.

The UK judiciary has made criticisms of expert evidence in, for example, ICI v. Merit,[15] Riva v. Fosters,[16] Energy Solutions v. NDA[17] and Russell & Anor v. Stone,[18] which highlighted that a ‘hired gun’ who pretends to be independent is of little help to a tribunal and may damage the position of the instructing party. It may cause the parties to incur higher expenses in the whole proceedings, prevent any settlements or render the expert evidence of little assistance to the tribunal. An expert must maintain objectivity and independence. The English courts have given many judgments regarding the bias of experts; for instance, in Jones v. Kaney,[19] the Supreme Court of the United Kingdom removed the immunity of an expert witness from lawsuits for negligence.

Expert accreditation and training courses,[20] particularly those relating to relevant professions, such as the Royal Institution of Charted Surveyors,[21] are particularly important in considering the scrutiny of expert evidence. Those with accreditation and experience are more likely to understand the importance of being independent and the duty to assist the tribunal. Being an expert witness is for many a professional career, as opposed to an isolated appointment of an industry professional as an expert. In construction disputes, being a professional expert has become a full-time role in which continuing professional development and accreditation, as well as experience, are important to ensure that professional standards are met. In this regard, Professor Doug Jones AO has stated that: ‘Repeat experts . . . are a good thing [because] they get to realise that their own personal reputations depend on avoiding extreme positions which are unsustainable.’[22]

Types of experts in international arbitration

Although there are many roles an expert may take – for example, an advisory expert, tribunal-appointed expert or shadow expert – at the time formal arbitration commences, the role of an expert will typically be that of a party-appointed expert witness.[23]

In most construction arbitration cases, there are typically various experts dealing with specific material issues in the case, namely issues of liability, causation and quantum. In most jurisdictions, the decision of who is liable under the contract or at law is a matter for the arbitral tribunal and not the expert witness, unless instructed as a legal liability expert.[24]

First are experts who opine on issues of liability; for example, welding defects may form a significant part of the claim. In this situation, a welding expert may give evidence as to the severity of the defects, required remedies (if any), how such defects may arise or whether the defects may breach a standard of care or performance where negligence is alleged. Technical experts such as this would typically have a design, engineering or scientific background with practical industry experience.

Second are experts who opine on issues of causation. A planning or scheduling expert may explain the impact that the welding defects have had on the execution of the project, resulting in disruption to the work or a critical delay in completion of the project. Delay experts such as this would typically have a planning, engineering or construction management background.

Finally, there are experts who opine on the consequences of the issues (e.g., the financial or quantum effect). Often these experts are quantity surveyors, cost engineers, accountants, property or land surveyors, among others. The nature of the evidence this expert may give is often on an ‘if’ basis; that is to say, if the tribunal finds that a certain breach, defect, point of liability or delay has occurred then a quantum expert’s evidence ought to provide a quantification of the damage relating to that liability scenario. The tribunal can use the opinions of these experts to quantify the financial aspects of the award, based on its findings of liability and causation.

When instructing experts in arbitration, or indeed litigation, the specific areas at issue may guide the parties as to what type of expert is required. It is often the case that multiple experts from different disciplines are required to address various issues in dispute. The type of project, facts of the case and material issues in dispute may guide the parties in selecting an expert that meets the specific qualifications, specialist knowledge or experience in the particular field.

Benefits of early appointment of experts

The early involvement of experts can assist counsel in better understanding the complex technical issues in a dispute that counsel may benefit from using to develop their client’s legal strategy. Obtaining the benefit of an expert’s independent perspective around the technical issues can help counsel understand the issues, the relative strength and weakness of the case at a technical level, understand their own and their opposing positions, and assist the parties or decision maker regarding the pathway to settlement.

Often the level of expert analysis required can become proportionally high, particularly in construction and engineering disputes. This can cause issues later when costs are awarded by the tribunal and experts’ fees, or part of their fees, are disallowed as they were considered unreasonable. In this scenario, the tribunal will look at the costs in relation to the end product of the work and may adjust to an appropriate level, commensurate with the amount of time the expert should have taken.

Experts should be mindful as to cost and always consider the ability to limit their expert analysis while maintaining objectivity, to ensure that (1) they do not go beyond the issues that they are instructed to address and (2) they review alternative ways of providing the required opinion. Early involvement of experts can assist counsel in understanding where the expert evidence can be limited, such as sampling to limit costs and consider proportionality. In large construction cases with significant data and large quantum, sampling can save cost and time as it can be used instead of a full and lengthy analysis, as seen in Amey LG v. Cumbria.[25]

Expert witnesses’ conduct in formal arbitral proceedings

Once parties have commenced arbitral proceedings and appointed their respective expert witnesses, the conduct of experts, instructing solicitors and counsel are guided by the rules, procedures and protocols of the arbitral institute or jurisdictional seat to the arbitration. Practices prominently featured in international construction arbitrations include the use of:

  • pleading styles (traditional pleadings in common law versus memorial submissions in civil law);
  • expert meetings and joint expert statements;
  • different forms of testifying;
  • expert presentations; and
  • jurisdictional and cultural differences.

Pleading styles – issues for experts

Some arbitral procedure rules require a memorial-style submission. In this case, the claiming party must submit all evidence that is to be relied on, including records, factual witness evidence[26] and even expert evidence with its submissions.

One perceived advantage of the memorial-style approach is that all the evidence is available to the parties at the outset, giving the tribunal greater visibility of the case and avoiding the tribunal being ‘blindsided’.[27] However, this also requires the claiming party to commit a significant cost earlier in the process because significant fact-finding and expert analysis is required at that stage. In these circumstances, parties may be encouraged to attempt to settle once the claims are better understood.

Notwithstanding the above, the reality is that most of the preparation for a case adopting a memorial-style approach will be concurrent. For the expert, this probably means that the evidence on which his or her opinion should be based will be received in a piecemeal or incomplete manner, often requiring the expert to identify gaps where additional evidence is required, and so on. Since no other evidence is produced other than the claimant, the expert can only form an opinion from that evidence. One risk the claiming party may face is that once the respondent issues its statement of defence with its own evidence, the claimant’s expert may find that the new evidence requires further analysis and the expert’s original opinion has to be amended (as is required for the expert to discharge its overriding duty to the tribunal).

Whereas in a traditionally pleaded approach, which is sequential, the evidence is typically provided prior to the expert reports, enabling the experts to fully consider the parties’ pleaded cases and supporting evidence prior to forming an opinion. It has become common practice for the High Court of England and Wales, in particular the Technology and Construction Court (TCC),[28] to instruct parties’ experts to meet and produce joint statements prior to any expert report.[29] This practice ensures that experts do not become too entrenched in their own opinions and encourages the early narrowing of issues.

As to whether a traditionally pleaded or memorial-style (i.e., concurrent or sequential) procedure is best is dependent on a variety of factors, one being the complexity of the expert analysis. Where an expert discipline has several alternative methodologies that could be used, an early agreement between experts, such as that encouraged by the TCC, can save time and cost. This is often achieved by agreeing on a common methodology, which data sets to rely on, and narrowing the issues in dispute. However, any agreements between the experts will depend on the quality, quantity and availability of data and evidence.

Expert meetings and joint expert statements

One of the most effective tools for the parties and the tribunal is the use of expert meetings and joint expert statements, which has gained popularity in recent years. This is typically ordered by the arbitral tribunal but is increasingly agreed to by the parties.

The purpose of expert meetings is to produce a joint expert statement whereby experts of the same (or a similar) field identify the specific issues with which they are and are not in agreement, providing their reasoned explanations for each area of disagreement. The expert meetings themselves, and any draft joint statements exchanged, are without prejudice. Once the joint expert statements are signed and served, it is done so on an open basis. The intention is that the expert witnesses set out the specific issues of agreement, limiting or narrowing the scope of contentious issues the tribunal or court must consider.

Expert meetings, and by implication joint expert statements, may be held on an iterative basis; for example, by order of the tribunal or by agreement between the parties, the expert witnesses of a respective field may set out to agree on certain material facts, methods of measurement, the basis of analyses or any number of issues before substantive expert reports are produced independently by each expert. In doing so, the expert witnesses may be aligned on certain facts, methodologies or other issues, with the aim of producing a better basis for comparison of the two opinions.

In cases in which expert witnesses have produced a joint statement prior to their respective reports being prepared, each expert signs a declaration confirming that they:

  • understand their overriding duty is to the tribunal;
  • have complied with any procedure rules, practice directives, etc; and
  • have not been instructed to avoid deferring agreement on any matters within their competence, neither has this been suggested to them.

When parties’ experts engage in expert meetings, either by agreement between the parties or at the instruction of a tribunal, the expert witnesses must maintain their independent views and agreements. In the case of Pickett v. Balkind,[30] His Honour Judge Paul Matthews warns against the improper influence on the parties’ expert opinions. In the case, communication between the two parties’ solicitors (‘Daniel’ being counsel instructed by the claimant) included the following: ‘I have been through Daniel’s comments on the Joint Statement and have made just a couple minor changes where I was unable to be as definite as his wording. Attached is a Word doc for your/Daniel’s comment.’ CPR Part 35 and comments within the TCC Guide state that although parties’ legal advisers may assist in identifying issues that a joint expert statement may address, those legal advisers should not be involved in the drafting or negotiation of the experts’ joint statements. Judge Matthews affirmed the case of BDW Trading v. Integral Geotechnique,[31] where it was described as a serious transgression for an expert to provide the instructing solicitors with a draft of the experts’ joint statement for their comment.

Another case, Andrews & Ors v. Kronospan,[32] also provided a warning to instructing counsel that they are not to influence or participate in the joint statement process and once experts begin their joint discussions, instructing counsel should treat experts as if they are in ‘purdah’.

Different forms of testifying

Traditionally, experts’ evidence, when presented at the hearing, involves the expert witnesses’ evidence in chief, which typically involves experts confirming their served reports, then cross-examination by opposing counsel and any necessary re-examination of each consecutive expert witness. Examination of individual expert witnesses can take several hours and span multiple days in more complex cases. This, when multiplied by the number of witnesses examined in a sequential manner, requires a significant amount of time for the arbitral hearing.

Concurrent expert evidence, colloquially known as ‘hot-tubbing’, was described by Lord Justice Jackson as ‘a Gift from Australia’[33] upon his recommendation for a pilot to use in the English courts. More recently, some parties and arbitral tribunals have adopted it in international arbitration. However, it is not a new concept, having been used in Australia since 1788.

Hot-tubbing is a departure from the traditional sequential examination of expert evidence. The process provides that experts in the same disciplines are affirmed together and often sit in the witness box at the same time. This permits the tribunal to engage with the experts in a question-and-answer format or a have more open discussion.

There are some tangible advantages to hot-tubbing when increasing efficiency in international construction arbitrations is high on the agenda. Professor Doug Jones AO astutely identified that:

The efficiency derives from the fact that witnesses ‘in conference’ can effectively confront each other’s evidence on the spot. Traditional methods of each side calling their witnesses in a linear fashion can lead to a cognitive disconnect in the arbitrators’ and counsel’s understanding of the issues. This disconnect is exacerbated in situations where there are large numbers of witnesses and it could be days before the contradictory evidence of an expert witness’ counterpart is heard. Further, it is possible that due to the technical nature of the evidence, opposing counsel will not be able to develop fully informed questions until they have been advised by their own expert. Therefore, allowing experts to analyse and question directly the evidence of other experts ensures greater celerity of the hearing.[34]

Despite its advantages, hot-tubbing is not widely used in some jurisdictions and arbitrations, outside the main international arbitral rules. Often, the use of hot-tubbing in construction arbitrations comes only at the behest of the arbitral tribunal, rather than the parties or their counsel. This sentiment may reflect the perceived disadvantages of hot-tubbing, such as a sense of loss of control and, consequently, increased risk. In many cases, examination of the experts is led by the tribunal, such that ‘barristers, who although given the opportunity to speak, seemed very much to take a back seat’.[35] Some practitioners have criticised hot-tubbing for letting ‘very poor experts off the hook from a searching cross-examination’.[36]

Expert presentations

A practice on the rise in international construction arbitration is the use of expert presentations. Traditionally, expert witnesses’ examination-in-chief is entered into the record by way of served reports. The use of an expert presentation may assist the tribunal in better understanding the key opinions of the expert witnesses and the overarching views that the tribunal ultimately relies on in forming its decision. An important skill for expert witnesses is being able to articulate complex matters clearly to a tribunal, distilling the most complex matters into digestible summaries.

Jurisdictional and cultural differences

It is often the case, particularly under the main arbitration rules, that experts cannot be appointed under an engagement that is linked to contingency fees or conditional fees (or both). The reason for this is the necessity of independence of an expert’s evidence and the requirement that they owe an overriding duty to the tribunal to provide an objective unbiased opinion in relation to matters within their expertise. A payment conditional or contingent on the outcome of the case would contravene this principle. In some jurisdictions, an expert’s appointment under a contingency fee or a conditional fee payment arrangement is not disallowed; however, this is rare.

Another important jurisdictional and cultural difference to be aware of is the coaching of expert witnesses. It is often the case that experts who maintain their objectivity and independence are not allowed to be coached by their instructing legal team. In Frazer v. Haukioja,[37] a Court of Appeal judgment in Ontario, Mrs Justice Patricia Moore questioned the impartiality of the expert on the basis that he spent hours on a telephone call with the instructing lawyer before drafting his report. Traditionally, the United States allows coaching of expert witnesses. However, an arbitral award was overturned by the Eleventh Circuit of the United States Court of Appeals in Nuvasive v. Absolute Medical,[38] whereby a witness was being coached by a respondent using text messages during the hearing via video­conference. Coaching of experts is a practice that is not permitted under many common law jurisdictions and parties need to be aware of the limits to which coaching may be applicable.

Conclusion

When it comes to a party’s decision to arbitrate or not, it should consider the early appointment of expert advisers and solicitors. The complexities of large international construction arbitrations put a significant strain on an organisation’s resources. A party must engage the appropriate expert and legal team to navigate through the issues, identify necessary data and work through the disclosure of materials to assist in decision-making. An expert’s independent assessment of a case’s strengths and weaknesses may provide the party with the necessary information to make informed decisions on negotiations, settlement discussions or whether arbitration is viable or not.

When experts are engaged in arbitration, one area of common difficulty is typically the availability and the quality of evidence and data. This may be the nature of the available evidence, or it could be the result of some tactical strategies used by others. It is the duty of the expert to review and evaluate the complete evidentiary record from both parties and arrive at his or her opinion independently. Recent trends within the industry, including the use of expert meetings and joint expert statements, hot-tubbing testimony and the use of expert presentations, have been implemented by an instruction from the tribunal or an agreement by the parties. The aim of these practices is narrowing the issues in dispute between the parties and better assisting the tribunal.

As discussed in this chapter, there are many instances in arbitration or litigation cases where a party makes an error, and the consequences may be quite severe. Therefore, it is imperative that all parties entering an arbitration, including the lay client, are aware of the different roles and responsibilities of expert witnesses and the evidence they provide.


Footnotes

[1] Nicholas Cousino is a managing director and Matthew Finn is a senior managing director at Ankura Consulting Group, LLC.

[2] The use of expert witnesses to provide opinion-based evidence has been seen in the English courts since the 16th century: see, e.g., Buckley v. Rice Thomas (1554) 1 Plowd 118, at 124; Rex v. Pembroke (1678) 6 Howell’s State Trials 1309.

[3] Folkes v. Chadd (1782) 3 Dougl 157.

[4] British Airways Plc v. Spencer [2015] EWHC 2477 (Ch).

[5] Kirkman v. Euro Exide Corporation (CMP Batteries Ltd) Kirkman v. Euro Exide Corporation (CMP Batteries Ltd) [2007] EWCA Civ 66.

[6] Mengiste & Anr v. Endowment Fund for The Rehabilitation of Tigray & Others [2013] EWHC 599 (Ch).

[7] See BBC News, ‘Expert sentenced for court claims’ (10 April 2008) (http://news.bbc.co.uk/1/hi/england/london/7340997.stm (accessed 9 August 2023)).

[8] SPE International v. Professional Preparation Contractors (UK) Ltd [2002] EWHC 881 (Ch).

[9] BSkyB Limited and Sky Subscribers Services v. HP Enterprise Services UK Limited and Electronic Data Systems LLC [2010] EWHC 86 (Technology and Construction Court (TCC)) (26 January 2010).

[10] Toth v. Jarman [2006] 4 All ER 1276.

[11] Compania Naviera SA v. Prudential Assurance Co Ltd (‘The Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68.

[12] Dana UK Axle Ltd v. Freudenberg FST GmbH [2021] EWHC 1413 (TCC).

[13] Great Eastern Hotel Limited v. John Laing Construction Ltd [2005] EWHC 181 (TCC).

[14] Van Oord UK Ltd & Anor v. Allseas UK Ltd [2015] EWHC 3074 (TCC).

[15] Imperial Chemical Industries Ltd v. Merit Merrell Technology Ltd [2017] EWHC 1763 (TCC).

[16] Riva Properties Ltd & Ors v. Foster + Partners Ltd [2017] EWHC 2574 (TCC).

[17] Energy Solutions EU Ltd v. Nuclear Decommissioning Authority [2017] UKSC 34.

[18] Russell & Anor v. Stone (t/a PSP Consultants) & Anor [2019] EWHC 831 (TCC).

[19] Jones v. Kaney [2011] UKSC 13.

[20] Such as the Academy of Experts, Legal Experience Training, Cardiff University Bond Solon and Expert Witness Institute.

[21] Royal Institution of Charted Surveyors, ‘Surveyors Acting as Expert Witnesses, 4th edition’ (https://www.rics.org/profession-standards/rics-standards-and-guidance/sector-standards/dispute-resolution-standards/surveyors-acting-as-expert-witnesses (accessed 9 August 2023)).

[22] Global Arbitration Review, GAR 100, 14th Edition, ‘Expert Witnesses’ (1 July 2021), citing his speech at GAR Live in Dubai.

[23] Bryan Cave Leighton Paisner, ‘Arbitration Survey 2021: Expert Evidence in International Arbitration’ (‘96% of respondents thought it was important that parties should have the right to rely on the evidence of a party-appointed expert’).

[24] This can be the case commonly whereby the contract or seat is under a law in which the tribunal is not qualified.

[25] Amey LG Ltd v. Cumbria County Council [2016] EWHC 2946 (TCC). In this case, the Court considered whether the use of sampling might be applied more widely in construction cases, its effectiveness as a means of proving claims and whether sampling is cost efficient, which was accepted by the Court.

[26] See United Nations Commission on International Trade Law, Arbitration Rules (as revised in 2010), Article 20(4): ‘The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them.’ Similar provisions are included in other international arbitration rules, such as those of the International Chamber of Commerce, the Singapore International Arbitration Centre, the Hong Kong International Arbitration Centre, the Australian Centre for International Commercial Arbitration and the London Court of International Arbitration.

[27] C Shan and N Stewart-Ornstein, ‘Memorials v pleadings: how to pick the winning approach for your arbitration’ (9 May 2019) (http://arbitrationblog.practicallaw.com/memorials-v-pleadings-how-to-pick-the-winning-approach-for-your-arbitration/ (accessed 9 August 2023)).

[28] The Technology and Construction Court (TCC) is a specialist court within the King’s Bench Division and is also part of the Business and Property Court, which sits in the Rolls Building, London, United Kingdom.

[29] ‘Technology and Construction Court (TCC) guide – October 2022’, para. 13.5.4: ‘It is generally sensible for the experts to meet at least once before they exchange their reports.’

[30] Pickett v. Balkind [2022] EWHC 2226 (TCC).

[31] BDW Trading Ltd v. Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC).

[32] Patricia Andrews and others v. Kronospan Ltd [2022] EWHC 479 (QB).

[33] ‘Concurrent Expert Evidence – A Gift from Australia’ – lecture by Lord Justice Jackson at the London Conference of the Commercial Bar Association of Victoria on 29 June 2016.

[34] Doug Jones AO, ‘Improving Arbitral Procedure: Perspectives from the Coalface’, Chapter 11 in Bernd Ehle and Domitille Baizeau (eds), Stories from the Hearing Room: Experience from Arbitral Practice – Essays in Honour of Michael E. Schneider, pp. 97–98.

[35] Civil Justice Council, ‘Concurrent Expert Evidence and “Hot-Tubbing” in English Litigation since the “Jackson Reforms”’ (2016), p. 19.

[36] ibid.

[37] Frazer v. Haukioja 2008 CanLII 42207 (O.S.C.), per Justice Moore, at para. 141.

[38] Nuvasive Inc v. Absolute Medical LLC et al., No 22-10214 (11th Cir 2023).

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