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The Expert Witness in Adjudication

Special Reports

by Murray Armes FCIArb

When it was introduced in 1998, adjudication was intended to be a quick and cheap method of dispute resolution to help cash strapped contractors and
subcontractors avoid insolvency. Since then, because domestic adjudication operates within the legal framework and is therefore the subject of a good deal of case law, the process has become increasingly legalistic and its popularity has led to more complex disputes being referred than was probably ever envisaged when the process was conceived by Latham. Adjudication is now used not only for straightforward disputes but for some that are technically complex and which cannot be resolved within the prescribed twenty eight day period.

Despite critics asserting that adjudication is not a suitable forum for the resolution of complex disputes and in particular, professional negligence cases, many are being referred to adjudication. Technical expert witnesses are used in order to demystify complex issues and to explain those issues to the tribunal, be it a judge, arbitrator(s) or an adjudicator. Although such instructions have become almost universal in court and arbitration cases, the use of experts has not always been the norm in adjudication and the question arises as to whether experts are required at all and if they are, whether the role is the same or different, and whether they are appointed by one of the parties or by the adjudicator.

Although not directly relevant to adjudication, the Pre-Action protocol requirement of litigation for experts to be appointed to give opinion on the performance of a professional in negligence cases must surely apply to adjudication if the process is to have any credibility. A question arises if no such expert evidence is provided whether an adjudicator should request that it is(2).

Although adjudication may never have been intended as a means to resolve complex technical or negligence cases, the reality is that this is exactly how some parties are using it and therefore the use of experts in adjudication is here to stay and possibly set to increase.

If party appointed, the expert’s services will be similar to those in litigation or arbitration, except much depends on which party the expert is instructed by. If the instruction originates from the procedure where there are no formal rules for the referring party then the expert may be required to act initially in an advisory capacity, exactly as in litigation, and then to produce an expert report. The process gives the referring party’s expert the time to fully carry out instructions. If instructed by the responding party, there is likely to be much less time(3) and therefore the role is usually one of reacting to the referral and any expert reports produced in support of it. The expert instructed by a responding party may well have very little time to get to grips with the facts and issues and to produce an expert report. This could put the expert in the position of being unable to properly investigate all the facts of the case at hand and therefore forced to rely heavily on the evidence produced by the party instructing the expert. Depending on the quality of that evidence, the expert may face the prospect of working with evidence that does not provide a complete picture of the facts.

In most adjudications, the only opportunity an expert has to explain their opinion is in the report produced for the adjudication and it takes on a much more crucial role when the adjudicator decides not to hold a meeting where the question arises as to how much weight the adjudicator should give to the expert’s report. When writing the report the expert must remember that the adjudicator is also under pressure, so it should clearly and concisely tell the story, set out clear reasons behind opinions, and ensure that any documents referred to are attached and clearly cross referenced in the text. If a clear and concise report is good practice in litigation it is essential in adjudication and if written well, it can assist the adjudicator in deciding the dispute. Although the report is often produced under pressure, the expert should guard against advocating the instructing party’s case and straying into the territory of hired gun, which can be easy to do when producing a report quickly and sometimes with limited access to evidence. In my view, despite there being a possible temptation to be overly bullish about a party’s case; a report that is objective and obviously neutral is more likely to be more persuasive.

Party appointed experts appointed in support of adjudication proceedings, are not subject to the Civil Procedure Rules (CPR) or other protocols as they are when instructed in connection with litigation or arbitration. Adjudication is a much less formal procedure where there are no formal rules for experts, other than those imposed by professional bodies(4). A recent survey conducted by the Society of Construction Law (5), suggested that in adjudication there is not always a clear boundary between independent expert evidence and that of an advocate. This is a difficulty that might arise out of lack of time, where the expert instructed on behalf of the responding party will be faced with a short timetable to produce a report and may have little option but to take the referring party’s evidence at face value. There is also usually no time for the exchange of expert reports during adjudication proceedings. This may be a particular problem for the expert appointed by the referring party because the first time they will see the opposing party’s case and expert report, is when the referral is served.

Whereas under the CPR the expert’s primary duty is to assist the tribunal, there is no such mandatory obligation in adjudication, although in my view there should be no difference and the experts should aim to assist the resolution of the dispute by assisting the adjudicator. Unlike reports produced under the CPR(6), expert reports produced for adjudication do not have to include a signed declaration, although in common with factual witness statements, they often include a short statement of truth. My own experience suggests that even experienced and well established experts are more willing to take diametrically opposing views in a way they might not so obviously do in litigation. The short timetable, at least for the respondent, is unlikely to help and the lack of formality and the private nature of adjudication means that a party appointed expert that has strayed into advocacy or worse still, has obviously taken on the role of hired gun - will be
shielded from the possibility of public criticism (and sanctions) a judge may deliver but which an adjudicator is not empowered (or advised) to do.

This could leave the adjudicator with a dilemma as to just how much reliance and weight should be attributed to a party appointed expert’s report, which might only be resolved by holding a meeting to test the evidence, something I have had experience of myself as an adjudicator on a number of occasions when trying to work out which of two diametrically opposing views to choose between and which party’s evidence to prefer. Should an expert report prepared for adjudication include a declaration? In my view all reports should include at least a statement of truth, and established and reputable experts should have no difficulty in signing an abbreviated version of the declaration, along the lines of that suggested by RICS(7) (no matter which form of dispute resolution the expert is working under). If nothing else, inclusion of that might remind the expert of what should sensibly be its ultimate duty: to assist the tribunal. Unfortunately, even when such declarationsare provided, it does not always mean the party appointed experts will necessarily act in the same way they would in court proceedings and the more rough and ready nature of adjudication, means this is not always possible even if the experts have tried to do their best in the time available.

When faced with highly conflicting expert evidence in adjudication, the adjudicator has the power to order a meeting(8). Provided the adjudicator has a good grasp of the opposing party’s submissions, careful questioning of the experts can be very helpful in testing each of the opposing expert’s opinions and conclusions. Although some adjudicators allow it, cross examination of experts in adjudication is rare and the procedure is much more akin to ‘hot tubbing’ or witness conferencing as it is more formally known. As an adjudicator I often find it very helpful to engage in what is often a conversation with the opposing experts on the various technical matters. This process has been successfully used in court and arbitration hearings and although an adjudication meeting is different and not as formal as the principles of expert evidence given under CPR 35, it should still guide the behaviour of the experts and parties.

Normally adjudicators are selected for their expertise on the matter in dispute, but sometimes it is not always possible to nominate an adjudicator who has all the expertise necessary to understand all of the technical issues. Ordinarily, if party appointed experts are giving truly independent advice, there is then usually at least some common ground. Even if the adjudicator is not directly experienced in all the technical matters it is possible to weigh the evidence and choose which is preferable. In adjudication, though, as we have seen above, the expert evidence is not always of the same quality that would be expected in arbitration or litigation. Sometimes the matters are so technical and the expert opinions so far apart that it is not easy to decide which evidence the adjudicator should prefer. In some cases, the ‘truth’ may comprise a hybrid of both experts’ evidence, neither of them being entirely persuasive.

Complex delay disputes often result in widely diverging expert reports, the conclusions of which may be based on differing methods of delay analysis. The adjudicator is most likely not a delay expert and is then faced with a dilemma in choosing which evidence to prefer. Of course the adjudicator has the power to simply decide which of the experts’ evidence is preferable(9) and continue to make a decision based on that. However, this ‘sudden death’ scenario could result in real injustice and could mean the resistance to the enforcement of the decision by that aggrieved party.

Alternatively, the adjudicator could decide which parts of the opposing experts' evidence they prefer and make a decision on that. That is a perfectly acceptable way to proceed but may not be easy or even possible to do, especially in our hypothetical delay case. Adjudicators are sometimes appointed on the basis of their own technical skills and if they have the necessary skills and experience, they can formulate their own analysis. However, they have to be careful to put that analysis to the parties for comment or face possible problems with enforcement of the decision (10) 

Faced with the scenarios above, the adjudicator normally has the power to appoint their own expert or assessor with the agreement of the parties (11). The role of the expert assessor in this case is to review the evidence of both parties and to assist the adjudicator in weighing the evidence to enable the decision to be made. The timetable of a typical adjudication does not permit the experts to meet to see if the issues in dispute can be agreed on or narrowed down. A question arises as to whether the adjudicator can hold meetings with the party appointed experts or whether the tribunal appointed expert might take on that role. If the adjudicator meets the experts, this needs to be carefully arranged with the agreement of the parties and the difficulties that might arise, should the meeting be perceived as mediation,(12) need to be borne in mind(13). It is possible, if the parties agree, and time permits, for the expert assessor to meet the party appointed experts and in that way help to narrow the issues. However, that process needs to be carefully controlled and meetings need to be carefully managed to avoid any allegations of breach of natural justice later in the process. Importantly, both parties must agree to the process (14). Of course any report produced by the assessor should be provided to the parties and time will need to be allowed for this.

So far we have considered domestic adjudication in the UK. Of course other jurisdictions have their own statutory adjudication schemes but it is outside the scope of this article to review the role of the expert in adjudication proceedings in those countries. It is, however, worth spending a little time to consider the role of experts in what I have termed ‘international adjudication’, more commonly called the dispute board. The primary function of the dispute board is to assist the parties in avoiding disputes but where that process has failed, to adjudicate on any dispute that arises. The process is similar to that of UK statutory adjudication but typically takes place over a longer period: 84 days versus 28 in the UK. The tribunal consists of one or three, or any larger odd number of board members.

The parties in dispute may appoint technical experts, although the DB procedures normally encourage the participation of the technical staff on side to particulate rather than lawyers, so the parties may effectively produce their own expert evidence, although it may not have the advantage of being truly impartial. Just like UK statutory adjudication, none of the procedures I am aware of provide any protocols for the use or behaviour of experts in dispute board proceedings. Everything above applies equally to party appointed experts in DB proceedings so the experts should aim to be truly independent and declare that as such.

The Chartered Institute of Arbitrators produces a ‘Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration’(15) in which Article 4.1 states: ‘An expert’s opinion shall be impartial, objective, unbiased and uninfluenced by the pressures of the dispute resolution process or by any Party’. Of course whilst an international arbitration may take place over months or years, and although the dispute procedures may seem more relaxed than those for UK adjudication, nonetheless giving evidence in a procedure that lasts around 84 days can still be quite pressurised, if not quite so as when it has to be done in 28! In Article 8.1(a) the expert declares that its duty is to assist the tribunal. The ‘IBA Rules on the Taking of Evidence in Commercial Arbitration’ also offer some guidance under Article 5. Although these two documents were produced for use with international arbitrations, I see no reason why their sensible rules should not be adopted for dispute boards too.

The advantage of a dispute board comprised of three or more members is that the board can embody several disciplines, a luxury not afforded to the single
adjudicator in UK statutory procedures, so the tribunal itself (or at least one of its members) may have all the expertise needed to understand complex technical or legal issues. That might not always be the case and also in the case of a one man dispute board, the tribunal is normally empowered to appoint experts or assessors to assist it in matters outside the expertise of the DB members(16). The only real issue with this is likely to be agreeing the cost of the tribunal appointed expert with the parties. There are no published protocols for tribunal appointed experts in DB proceedings but Article 6 of the ‘IBA Rules on the Taking of Evidence in Commercial Arbitration’, provides useful guidance regarding tribunal appointed experts, although some of the procedures are very formal(17) and do not always lend themselves to the much less formal dispute board procedures. Nonetheless, with some editing, they are good basis on which to start.

Adjudication is not without its critics, especially those that consider the increasing complexity of disputes being referred, the resultant increasing time it takes to get a decision and the increasing costs involved which mean the procedure has become more akin to arbitration. However, it is still very popular with users and that trend is set to continue in the near future. The use of party appointed technical experts is also set to continue, although the task for the referring party’s expert is always going to be a more difficult one. Experts are almost always required to give opinion on negligence cases, even in adjudication. The uneven playing field that is sometimes caused is a good reason to be concerned about the suitability of adjudication for that type of dispute. Nonetheless without a change in the statute, the process will continue to be used because it is quicker and cheaper than litigation.

As for adjudicator appointed assessors, no single adjudicator is likely to have all the specialist expertise required to decide complex issues of delay or quantum and where the party appointed experts have widely divergent views, it will be advantageous to agree with the parties on the appointment of an expert assessor to assist the adjudicator in making its decision.

Despite its less formal procedures, in order for expert evidence to have credibility in domestic adjudication, the principles set out in CPR 35 should always underpin the evidence given, whether written or oral. Similarly in international dispute board procedures the principles from one of the international protocols
for international arbitration should be the basis for the giving of evidence. In the absence of party agreement, the adjudication tribunal may not have the powers to insist that such standards are used but ultimately, if expert evidence is to be of the high standard it requires to be, the matter lies with the experts themselves to ensure that their work is compliant with such standards and for adjudicators to give greater weight to evidence that does so. ¶

References
1, Although not necessarily, see ACD (Landscape Architects) Ltd v Overall and another [2012] EWHC 100 (TCC)
2, Just as in litigation where the court expects expert evidence to be served, see Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189
3, The process may allow as little as just a few days for the respondent to serve a response, although adjudicators may extend that time, particularly if the case is complex
4, Such as the RICS practice note on surveyors acting as expert witnesses
5, Review of Experts Evidence, a consultation carried out by the Society of Constriction Law and headed by Her Honour Frances Kirkham CBE
6, CPR 35 Rules 3.2(9) and 3.3
7, Surveyors Acting As Expert Witnesses. 4th edition, 2014
8, The Scheme for Construction Contracts, Part 1,Clause 13(c)
9, The Scheme for Construction Contracts, Part 1, Clause 13
10,Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597
11, The Scheme for Construction Contracts, Part 1, Clause 13(f)
12, Glencot v Ben Barrett Ltd [2001] EWHC Technology 15
13, Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597
14, Try Construction Limited v Eton Town House Group Limited [2003] EWHC 60 (TCC)
15, Available at: https://www.ciarb.org/docs/default-source /practice-guidelines-protocols-and-rules/the-use-of-partyappointed- experts.pdf?sfvrsn=2
16, For example FIDIC Procedural Rule 8(d) and Sub Clause 20.2
17, In particular Article 6.3 where the Tribunal Appointed expert has the power to request information from the Parties.

Murray Armes is a Fellow of the Chartered Institute of Arbitrators and Managing Director of Sense Studio Limited. He is a construction industry dispute resolution expert who has worked on disputes in the industry all over the world. He is a Chartered Architect, Chartered Arbitrator, Adjudicator, Expert Witness, Dispute Board Member and accredited Mediator.

The Chartered Institute of Arbitrators (CIArb) is a global professional membership organisation representing the interests of alternative dispute resolution (ADR) practitioners worldwide. With 14,000 members located in 133 countries,

CIArb supports the promotion, facilitation and development of all forms of private dispute resolution and provides lawyers and other professionals with prestigious qualifications and training, demonstrating excellence in ADR.
www.ciarb.org

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by Murray Armes FCIArb

When it was introduced in 1998, adjudication was intended to be a quick and cheap method of dispute resolution to help cash strapped contractors and
subcontractors avoid insolvency. Since then, because domestic adjudication operates within the legal framework and is therefore the subject of a good deal of case law, the process has become increasingly legalistic and its popularity has led to more complex disputes being referred than was probably ever envisaged when the process was conceived by Latham. Adjudication is now used not only for straightforward disputes but for some that are technically complex and which cannot be resolved within the prescribed twenty eight day period.

Despite critics asserting that adjudication is not a suitable forum for the resolution of complex disputes and in particular, professional negligence cases, many are being referred to adjudication. Technical expert witnesses are used in order to demystify complex issues and to explain those issues to the tribunal, be it a judge, arbitrator(s) or an adjudicator. Although such instructions have become almost universal in court and arbitration cases, the use of experts has not always been the norm in adjudication and the question arises as to whether experts are required at all and if they are, whether the role is the same or different, and whether they are appointed by one of the parties or by the adjudicator.

Although not directly relevant to adjudication, the Pre-Action protocol requirement of litigation for experts to be appointed to give opinion on the performance of a professional in negligence cases must surely apply to adjudication if the process is to have any credibility. A question arises if no such expert evidence is provided whether an adjudicator should request that it is(2).

Although adjudication may never have been intended as a means to resolve complex technical or negligence cases, the reality is that this is exactly how some parties are using it and therefore the use of experts in adjudication is here to stay and possibly set to increase.

If party appointed, the expert’s services will be similar to those in litigation or arbitration, except much depends on which party the expert is instructed by. If the instruction originates from the procedure where there are no formal rules for the referring party then the expert may be required to act initially in an advisory capacity, exactly as in litigation, and then to produce an expert report. The process gives the referring party’s expert the time to fully carry out instructions. If instructed by the responding party, there is likely to be much less time(3) and therefore the role is usually one of reacting to the referral and any expert reports produced in support of it. The expert instructed by a responding party may well have very little time to get to grips with the facts and issues and to produce an expert report. This could put the expert in the position of being unable to properly investigate all the facts of the case at hand and therefore forced to rely heavily on the evidence produced by the party instructing the expert. Depending on the quality of that evidence, the expert may face the prospect of working with evidence that does not provide a complete picture of the facts.

In most adjudications, the only opportunity an expert has to explain their opinion is in the report produced for the adjudication and it takes on a much more crucial role when the adjudicator decides not to hold a meeting where the question arises as to how much weight the adjudicator should give to the expert’s report. When writing the report the expert must remember that the adjudicator is also under pressure, so it should clearly and concisely tell the story, set out clear reasons behind opinions, and ensure that any documents referred to are attached and clearly cross referenced in the text. If a clear and concise report is good practice in litigation it is essential in adjudication and if written well, it can assist the adjudicator in deciding the dispute. Although the report is often produced under pressure, the expert should guard against advocating the instructing party’s case and straying into the territory of hired gun, which can be easy to do when producing a report quickly and sometimes with limited access to evidence. In my view, despite there being a possible temptation to be overly bullish about a party’s case; a report that is objective and obviously neutral is more likely to be more persuasive.

Party appointed experts appointed in support of adjudication proceedings, are not subject to the Civil Procedure Rules (CPR) or other protocols as they are when instructed in connection with litigation or arbitration. Adjudication is a much less formal procedure where there are no formal rules for experts, other than those imposed by professional bodies(4). A recent survey conducted by the Society of Construction Law (5), suggested that in adjudication there is not always a clear boundary between independent expert evidence and that of an advocate. This is a difficulty that might arise out of lack of time, where the expert instructed on behalf of the responding party will be faced with a short timetable to produce a report and may have little option but to take the referring party’s evidence at face value. There is also usually no time for the exchange of expert reports during adjudication proceedings. This may be a particular problem for the expert appointed by the referring party because the first time they will see the opposing party’s case and expert report, is when the referral is served.

Whereas under the CPR the expert’s primary duty is to assist the tribunal, there is no such mandatory obligation in adjudication, although in my view there should be no difference and the experts should aim to assist the resolution of the dispute by assisting the adjudicator. Unlike reports produced under the CPR(6), expert reports produced for adjudication do not have to include a signed declaration, although in common with factual witness statements, they often include a short statement of truth. My own experience suggests that even experienced and well established experts are more willing to take diametrically opposing views in a way they might not so obviously do in litigation. The short timetable, at least for the respondent, is unlikely to help and the lack of formality and the private nature of adjudication means that a party appointed expert that has strayed into advocacy or worse still, has obviously taken on the role of hired gun - will be
shielded from the possibility of public criticism (and sanctions) a judge may deliver but which an adjudicator is not empowered (or advised) to do.

This could leave the adjudicator with a dilemma as to just how much reliance and weight should be attributed to a party appointed expert’s report, which might only be resolved by holding a meeting to test the evidence, something I have had experience of myself as an adjudicator on a number of occasions when trying to work out which of two diametrically opposing views to choose between and which party’s evidence to prefer. Should an expert report prepared for adjudication include a declaration? In my view all reports should include at least a statement of truth, and established and reputable experts should have no difficulty in signing an abbreviated version of the declaration, along the lines of that suggested by RICS(7) (no matter which form of dispute resolution the expert is working under). If nothing else, inclusion of that might remind the expert of what should sensibly be its ultimate duty: to assist the tribunal. Unfortunately, even when such declarationsare provided, it does not always mean the party appointed experts will necessarily act in the same way they would in court proceedings and the more rough and ready nature of adjudication, means this is not always possible even if the experts have tried to do their best in the time available.

When faced with highly conflicting expert evidence in adjudication, the adjudicator has the power to order a meeting(8). Provided the adjudicator has a good grasp of the opposing party’s submissions, careful questioning of the experts can be very helpful in testing each of the opposing expert’s opinions and conclusions. Although some adjudicators allow it, cross examination of experts in adjudication is rare and the procedure is much more akin to ‘hot tubbing’ or witness conferencing as it is more formally known. As an adjudicator I often find it very helpful to engage in what is often a conversation with the opposing experts on the various technical matters. This process has been successfully used in court and arbitration hearings and although an adjudication meeting is different and not as formal as the principles of expert evidence given under CPR 35, it should still guide the behaviour of the experts and parties.

Normally adjudicators are selected for their expertise on the matter in dispute, but sometimes it is not always possible to nominate an adjudicator who has all the expertise necessary to understand all of the technical issues. Ordinarily, if party appointed experts are giving truly independent advice, there is then usually at least some common ground. Even if the adjudicator is not directly experienced in all the technical matters it is possible to weigh the evidence and choose which is preferable. In adjudication, though, as we have seen above, the expert evidence is not always of the same quality that would be expected in arbitration or litigation. Sometimes the matters are so technical and the expert opinions so far apart that it is not easy to decide which evidence the adjudicator should prefer. In some cases, the ‘truth’ may comprise a hybrid of both experts’ evidence, neither of them being entirely persuasive.

Complex delay disputes often result in widely diverging expert reports, the conclusions of which may be based on differing methods of delay analysis. The adjudicator is most likely not a delay expert and is then faced with a dilemma in choosing which evidence to prefer. Of course the adjudicator has the power to simply decide which of the experts’ evidence is preferable(9) and continue to make a decision based on that. However, this ‘sudden death’ scenario could result in real injustice and could mean the resistance to the enforcement of the decision by that aggrieved party.

Alternatively, the adjudicator could decide which parts of the opposing experts' evidence they prefer and make a decision on that. That is a perfectly acceptable way to proceed but may not be easy or even possible to do, especially in our hypothetical delay case. Adjudicators are sometimes appointed on the basis of their own technical skills and if they have the necessary skills and experience, they can formulate their own analysis. However, they have to be careful to put that analysis to the parties for comment or face possible problems with enforcement of the decision (10) 

Faced with the scenarios above, the adjudicator normally has the power to appoint their own expert or assessor with the agreement of the parties (11). The role of the expert assessor in this case is to review the evidence of both parties and to assist the adjudicator in weighing the evidence to enable the decision to be made. The timetable of a typical adjudication does not permit the experts to meet to see if the issues in dispute can be agreed on or narrowed down. A question arises as to whether the adjudicator can hold meetings with the party appointed experts or whether the tribunal appointed expert might take on that role. If the adjudicator meets the experts, this needs to be carefully arranged with the agreement of the parties and the difficulties that might arise, should the meeting be perceived as mediation,(12) need to be borne in mind(13). It is possible, if the parties agree, and time permits, for the expert assessor to meet the party appointed experts and in that way help to narrow the issues. However, that process needs to be carefully controlled and meetings need to be carefully managed to avoid any allegations of breach of natural justice later in the process. Importantly, both parties must agree to the process (14). Of course any report produced by the assessor should be provided to the parties and time will need to be allowed for this.

So far we have considered domestic adjudication in the UK. Of course other jurisdictions have their own statutory adjudication schemes but it is outside the scope of this article to review the role of the expert in adjudication proceedings in those countries. It is, however, worth spending a little time to consider the role of experts in what I have termed ‘international adjudication’, more commonly called the dispute board. The primary function of the dispute board is to assist the parties in avoiding disputes but where that process has failed, to adjudicate on any dispute that arises. The process is similar to that of UK statutory adjudication but typically takes place over a longer period: 84 days versus 28 in the UK. The tribunal consists of one or three, or any larger odd number of board members.

The parties in dispute may appoint technical experts, although the DB procedures normally encourage the participation of the technical staff on side to particulate rather than lawyers, so the parties may effectively produce their own expert evidence, although it may not have the advantage of being truly impartial. Just like UK statutory adjudication, none of the procedures I am aware of provide any protocols for the use or behaviour of experts in dispute board proceedings. Everything above applies equally to party appointed experts in DB proceedings so the experts should aim to be truly independent and declare that as such.

The Chartered Institute of Arbitrators produces a ‘Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration’(15) in which Article 4.1 states: ‘An expert’s opinion shall be impartial, objective, unbiased and uninfluenced by the pressures of the dispute resolution process or by any Party’. Of course whilst an international arbitration may take place over months or years, and although the dispute procedures may seem more relaxed than those for UK adjudication, nonetheless giving evidence in a procedure that lasts around 84 days can still be quite pressurised, if not quite so as when it has to be done in 28! In Article 8.1(a) the expert declares that its duty is to assist the tribunal. The ‘IBA Rules on the Taking of Evidence in Commercial Arbitration’ also offer some guidance under Article 5. Although these two documents were produced for use with international arbitrations, I see no reason why their sensible rules should not be adopted for dispute boards too.

The advantage of a dispute board comprised of three or more members is that the board can embody several disciplines, a luxury not afforded to the single
adjudicator in UK statutory procedures, so the tribunal itself (or at least one of its members) may have all the expertise needed to understand complex technical or legal issues. That might not always be the case and also in the case of a one man dispute board, the tribunal is normally empowered to appoint experts or assessors to assist it in matters outside the expertise of the DB members(16). The only real issue with this is likely to be agreeing the cost of the tribunal appointed expert with the parties. There are no published protocols for tribunal appointed experts in DB proceedings but Article 6 of the ‘IBA Rules on the Taking of Evidence in Commercial Arbitration’, provides useful guidance regarding tribunal appointed experts, although some of the procedures are very formal(17) and do not always lend themselves to the much less formal dispute board procedures. Nonetheless, with some editing, they are good basis on which to start.

Adjudication is not without its critics, especially those that consider the increasing complexity of disputes being referred, the resultant increasing time it takes to get a decision and the increasing costs involved which mean the procedure has become more akin to arbitration. However, it is still very popular with users and that trend is set to continue in the near future. The use of party appointed technical experts is also set to continue, although the task for the referring party’s expert is always going to be a more difficult one. Experts are almost always required to give opinion on negligence cases, even in adjudication. The uneven playing field that is sometimes caused is a good reason to be concerned about the suitability of adjudication for that type of dispute. Nonetheless without a change in the statute, the process will continue to be used because it is quicker and cheaper than litigation.

As for adjudicator appointed assessors, no single adjudicator is likely to have all the specialist expertise required to decide complex issues of delay or quantum and where the party appointed experts have widely divergent views, it will be advantageous to agree with the parties on the appointment of an expert assessor to assist the adjudicator in making its decision.

Despite its less formal procedures, in order for expert evidence to have credibility in domestic adjudication, the principles set out in CPR 35 should always underpin the evidence given, whether written or oral. Similarly in international dispute board procedures the principles from one of the international protocols
for international arbitration should be the basis for the giving of evidence. In the absence of party agreement, the adjudication tribunal may not have the powers to insist that such standards are used but ultimately, if expert evidence is to be of the high standard it requires to be, the matter lies with the experts themselves to ensure that their work is compliant with such standards and for adjudicators to give greater weight to evidence that does so. ¶

References
1, Although not necessarily, see ACD (Landscape Architects) Ltd v Overall and another [2012] EWHC 100 (TCC)
2, Just as in litigation where the court expects expert evidence to be served, see Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189
3, The process may allow as little as just a few days for the respondent to serve a response, although adjudicators may extend that time, particularly if the case is complex
4, Such as the RICS practice note on surveyors acting as expert witnesses
5, Review of Experts Evidence, a consultation carried out by the Society of Constriction Law and headed by Her Honour Frances Kirkham CBE
6, CPR 35 Rules 3.2(9) and 3.3
7, Surveyors Acting As Expert Witnesses. 4th edition, 2014
8, The Scheme for Construction Contracts, Part 1,Clause 13(c)
9, The Scheme for Construction Contracts, Part 1, Clause 13
10,Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597
11, The Scheme for Construction Contracts, Part 1, Clause 13(f)
12, Glencot v Ben Barrett Ltd [2001] EWHC Technology 15
13, Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597
14, Try Construction Limited v Eton Town House Group Limited [2003] EWHC 60 (TCC)
15, Available at: https://www.ciarb.org/docs/default-source /practice-guidelines-protocols-and-rules/the-use-of-partyappointed- experts.pdf?sfvrsn=2
16, For example FIDIC Procedural Rule 8(d) and Sub Clause 20.2
17, In particular Article 6.3 where the Tribunal Appointed expert has the power to request information from the Parties.

Murray Armes is a Fellow of the Chartered Institute of Arbitrators and Managing Director of Sense Studio Limited. He is a construction industry dispute resolution expert who has worked on disputes in the industry all over the world. He is a Chartered Architect, Chartered Arbitrator, Adjudicator, Expert Witness, Dispute Board Member and accredited Mediator.

The Chartered Institute of Arbitrators (CIArb) is a global professional membership organisation representing the interests of alternative dispute resolution (ADR) practitioners worldwide. With 14,000 members located in 133 countries,

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