quality cost advice and management

Choosing an expert witness for construction disputes – what you need to know

29 Oct 2019 2:06 PM

Conflicts and disputes can usually be avoided by planning ahead for problems and issues. Choosing an expert witness for construction disputes from the outset can go a long way to highlighting potential risk areas along the way.

However, despite the best planning and strategising, disputes can still escalate and you might find yourself in court.

Our director - Shirley Thomson advises that when the time comes, “it is vital to have connections with trusted, experienced and professional consultancies who will act as your expert witness to strengthen your case in court.”

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Choosing the right expert witness can make a huge difference in construction disputes. How do you know who to appoint?

 

What is an expert witness in construction disputes?

When two parties are conflicted they need unbiased, clear and professional expert testimony to settle the dispute. An expert witness is a specified expert who uses their skills, expertise and training to assist courts in understanding technical or specific issues from their professional viewpoint. 

The witness usually writes a report around their testimony and can be asked to provide a statement in court proceedings. Expert witnesses are generally invited to give an opinion on the validity of claims put forward by the opposition which are loosely divided into four categories of construction law: Quantum; Contract Interpretation; Defects and Claims for Delay and Loss.

 

Why you need an expert witness in a resolution dispute

By the time a construction dispute gets to court stage, the issues can be very complex. The evidence or testimony of an expert can often be the difference between success or failure of the dispute, so it’s vital to have the right witness in place.

 

How an expert witness can strengthen your case in a construction dispute

Expert witnesses can be appointed by the party (ies) in the dispute or directly by the court and are used in a variety of different ways. You can use an expert witness to act as a:

  • Single expert - instructed by one side of the dispute;
  • Single joint expert, instructed by all parties involved;
  • Expert advisor - where a report or opinion is provided but is not put before the court in person;
  • Lead expert when the claim requires multiple experts

Expert witness opinion is known as ‘expert evidence’ and usually includes providing factual evidence, a detailed explanation of technical terms and topics, and qualified opinions surmised from the specific facts of the case.

 

Choosing an expert witness for construction disputes – Checklist

A professional industry expert should provide you with the information you need to make an informed choice. However, Shirley Thomson suggests keeping a checklist to be sure you capture everything you need to know. “Having a clear idea of what you need to know makes choosing an expert witness in a construction dispute much easier than hoping they will cover everything off from their end”.

 

1. Expertise

Don’t just rely on your expert witness’s website. Have a conversation with your witness ahead of appointing them about their specific sphere of expertise. As well as establishing from the outset that this is the person you need for your dispute, it gives you the chance to assess their communication skills, and how they come across in conversation.

 

2. Availability to act

Is your chosen expert witness available on the dates you need them? What about in the run-up to the case? Is there enough lead-in time to prepare reports and statements? Iron out any travel times, location issues and potential date change well in advance so your chosen witness is available when you need them.

 

3. Conflict of interest

Check and double-check in this area to avoid your witness having to withdraw from proceedings.

 

4. Recommendations, examples of work, case studies

Your expert witness should be able to provide recommendations or examples of previous work. Don’t forget that case studies are most likely to be given in note form due to sensitivity around legal cases.

 

5. Abilities

It is essential that your expert witness can convey their expert evidence in a number of ways. Are you satisfied that your chosen witness will strengthen your case in the following key areas? 

 

  • Providing written reports
  • Giving accurate examples and demonstrations of their area of expertise
  • In a court setting - handling confrontation, questioning and cross-examination in front of a judge, solicitors and the public
  • Ability to combat claims of bias or conflict of interest
  • Maintaining professional appearance and countenance at all times

 

Conclusion

Disputes in construction and engineering are problematic, in both time to complete and budgets so it is essential to appoint the right dispute expert witness for your conflict. The best advice is to appoint an industry expert from the early stages of a project to avoid conflict and minimise areas of dispute, but that’s not possible in every situation.

Having a clear idea of what to expect of an expert witness and how to appoint one goes a long way to resolving conflicts in court - and often before it gets to court.

We've worked in dispute resolution in the construction and engineering industries for over 30 years. Shirley Thomson, director of BDG Thomson Gray is a member of RICS Scotland Chairman’s Panel of Adjudicators and has worked as an expert witness in numerous cases.

Give us a call today to chat through your current dispute issues. It will be a positive step in what can be a frustrating process and could even lead to resolving the conflict and moving on with your project.

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