Książki

The role of the expert witness has long been important in the resolution of construction disputes. The specialist opinion brought by the expert can aid understanding and interpretation of the facts of the dispute, and may be influential in deciding the outcome. The variety of dispute resolution procedures and the requirement for the expert witness to be independent places a heavy burden on the parties to identify and instruct an appropriate expert, and on the expert to ensure they discharge their duty in the correct manner.The Expert Witness in Construction explains, in practical terms, the way in which experts work with particular reference to the construction industry. Within this book the Expert's role is explained in legal and practical terms as a progression from understanding the basic principles by which Experts can be identified, through appointment, to giving evidence before a tribunal. At every stage commentary is given to:* help and guide professionals new to the arena of expert evidence;* act as a resource for those already acting as Experts;* assist party representatives looking for best practice guidance on the instruction of Experts; and* provide parties to disputes information on what they should expect from the Expert they appoint to explain the issues in the case.Covering all the implications of identifying, appointing, instructing and relying on experts, it will help the reader to understand why experts are instructed in the way they are, how to identify the expert that is right for a particular case and how evidence should be presented. Written by a practicing lawyer and a consultant with extensive experience of acting as an expert witness, the requirements of both the lawyer and expert are discussed. As such, it will help both parties to understand each other resulting in a closer, more productive working relationship.

The Expert Witness in Construction

Preface ixAcknowledgement xiPart 11 Introduction 31.1 Introduction 31.2 What is expert evidence? 41.3 The expanding role of the expert witness 51.4 What makes a good expert witness? 71.5 What is an expert witness and what is an expert witness used for? 101.6 Duties of the expert witness 161.7 Use of expert evidence 191.8 Summary 212 Independence and Duties 232.1 Introduction 232.2 Duties of expert witnesses 232.3 Partiality and impartiality 262.4 Failings in obligations 282.5 Investigations 292.6 Conflict of interest 302.7 Those giving instructions 332.8 Summary - nature of the conflicting duty 353 Roles in Different Forums 373.1 Introduction 373.2 Litigation 383.3 Arbitration 443.4 Adjudication 453.5 Mediation 473.6 Expert determination 483.7 Informal processes 493.8 Summary 504 Different Types of Expert 514.1 Introduction 514.2 The expert witness 514.3 The expert advisor 514.4 Tribunal-appointed experts 564.5 The single joint expert 624.6 Assessors 814.7 Expert determination 834.8 Expert evaluation 914.9 ICC expertise rules 924.10 The advocate and expert witness 945 Procedural Rules, Evidential Rules and Professional Codes 955.1 Introduction 955.2 Civil Procedure Rules 965.3 Domestic arbitration 1055.4 International arbitration 1125.5 The IBA Rules of Evidence 1205.6 Professional institute rules 1245.7 Summary 1286 The International Dimension 1296.1 Introduction 1296.2 What is international? 1306.3 General issues arising 1306.4 Key differences in approach 1316.5 International legal issues 1346.6 International application of professional standards 135Part 27 Selection and Appointment 1397.1 Introduction 1397.2 Pre-appointment 1427.3 Availability 1457.4 Expert witness interviews 1467.5 Terms and conditions 1507.6 Fees and getting paid 1517.7 Instructions 1547.8 Ending the appointment 1617.9 Summary 1648 Obtaining Information 1658.1 Introduction 1658.2 Litigation 1668.3 Domestic arbitration 1668.4 International arbitration 1678.5 Getting started 1698.6 Focusing in on the issues 1728.7 Electronic disclosure 1748.8 Further documents and disclosure 1748.9 Other experts 1758.10 Redfern Schedules 1778.11 At the trial or hearing 1788.12 Access to the site and property 1798.13 Translation of documents 1798.14 Other problem areas 1808.15 The expert report 1828.16 Summary 1829 Writing Reports 1839.1 Introduction 1839.2 Where to start 1849.3 Duty to the tribunal 1869.4 Independent opinions 1879.5 Writing the report 1939.6 Structure, layout, contents 1989.7 The expert's qualifications 2049.8 Use of assistants 2089.9 All sources shown 2129.10 Facts and instructions relied upon 2149.11 Accurate and complete 2179.12 Sampling 2199.13 Instructions received 2219.14 Joint briefs or terms of reference 2239.15 Qualifications or ranges of opinions 2259.16 Report conclusions 2279.17 Statement of truth 2279.18 Declarations 2289.19 Questions on an expert report 23010 Meetings of Experts 23310.1 Introduction 23310.2 Purpose 23810.3 Timing 24110.4 Agenda 24310.5 How to record and report on the meeting 24910.6 Producing a joint statement 25210.7 Binding effect of experts' agreements 25810.8 Attendance of lawyers 26410.9 Involving a tribunal expert/facilitator/manager 26610.10 Attendance of the arbitrator 26910.11 A change of expert 27110.12 Conclusions 27411 Giving Evidence 27511.1 Introduction 27511.2 Will oral evidence be taken? 27711.3 Preparation before the hearing 27911.4 Split hearings 28511.5 Giving evidence at the hearing 28811.6 Modern technology 29111.7 Examination-in-chief 29311.8 Cross-examination 29411.9 Tribunal examination 29711.10 Re-examination 29811.11 'In purdah' 29811.12 'Hot tubbing' 29911.13 Tribunal- and jointly-appointed experts 30611.14 Ex-parte proceedings 30711.15 Post-hearing activities 30812 Liability and Immunity 31112.1 Introduction 31112.2 How could liability arise? 31112.3 General immunity as it has been historically 31312.4 Erosion of the general position 31412.5 Current expert liability (for what and to whom) 31512.6 The facts of Jones v Kaney 31612.7 The main judgment 31712.8 Issues for experts to consider 32212.9 Likely future developments 322Appendix 1 Useful Websites for Further Information and Common Abbreviations 325Appendix 2 Tables Comparing Rules for Different Types of Expert Involvement 327Appendix 3 Typical Tribunal Order for 'Hot Tubbing' 345Index