by Brian Clancy JP, BSc, CEng, FICE, FIStructE, FCIOB, FConsE, MAE, MRICS, MCIArb. Consultant, Brian Clancy Higby Partnership, Cheshire, UK
This paper tries to record some of the experiences of a civil and structural engineer and building surveyor over a period of some 50 years and how he became involved, by chance, in advising protagonists who had resorted to legal disputations to resolve their differences. The author is not a great supporter of disputations that rely too heavily on legal management of the arguments – and certainly not of going to court (if it can be avoided). He believes that going to court is, in principle, a failure, unless the matter is extremely complex or an issue upon which crucial legal clarification is required. Most other instances are, in his view, exercises in ‘bullying’, inefficiency, dishonesty, arrogance or stupidity. It is important to appreciate that most well-conducted dispute ‘cases’ (the vast majority) are resolved without ever getting to court, so the ‘expert’ aspect is required far more often than the ‘witness’ part. Most expert witness roles in building and engineering disputes are in civil law cases, but some do occasionally arise in criminal cases, particularly where injury or fatality is involved. For the sake of gathering all blame to the author himself, he confirms that the opinions that he expresses below are his and his alone and not those of the Institution of Civil Engineers.
When I started my own practice back in 1972, after being a partner in another firm for 3 years, the term ‘expert witness’ (EW) was hardly known – certainly not known to me.
Even after 50 years, I have never considered myself as an ‘expert witness’; just as someone who from experience has advised on building and structural engineering problems, some of which – regrettably – have had to be resolved in court or at arbitration or, in more recent times, by adjudication or mediation. Otherwise, I have practised as a professional civil and structural engineer and building surveyor – designing, specifying, constructing, inspecting and generally advising on buildings and structures and their associated technical issues – that is surely the true calling of a construction engineer.
However, some practitioners seem to see the role of the ‘expert witness’ as almost a full time occupation – how strange!
First experience in court
The first ‘dispute matter’ upon which I was asked to advise – and that actually went to court – was in 1974; it concerned a badly fitted new domestic kitchen. The solicitor for the owners of the property did not know whom to consult and asked me if I would look at it from a workmanship point of view and do a report for his clients on what I honestly thought. For my part, there was never any belief that it would go to court, but it did. The judge was persuaded by my report and by my evidence and found against the installers – they had to replace the kitchen with better-quality fittings – which was what the court considered the householders had reasonably paid for.
Career progression – steps to becoming an expert!
As my career progressed, as well as doing many ‘newbuild’ schemes, I became involved and experienced in building assessments, alterations, extensions, and similar matters, for example, for hoteliers, banks, brewers, small industrialists, housing societies and so on. I found these exercises to be exceptionally interesting, because one was invariably dealing with not only an existing building or structure but also real owners and occupiers (residents, tenants, staff, etc.); I found that these were the sort of jobs that – unless they were very big! – large firms did not really want to become involved with, because they can be ‘tricky’ (high risk!), require a disproportionate amount of the attention of senior staff and have a relatively low fee potential – they are just not worth taking the chance on!
Surveying and technically assessing existing buildings and structures is a very complex procedure and potentially dangerous, as those who do it will know. To put it bluntly, miss something important and you are sued; take a wrong step on site and you could be dead!
When doing a survey, there are umpteen things to look for/at and to consider/assess; it is so easy for even the best of us to overlook something – and you usually only get one chance at the inspection. So, to assist me on site with the surveying and assessing exercise, I drew up my own checklist of ‘things to check and look for’. By chance, when at the Institution of Structural Engineers (ISE) one day for a branch reps meeting, I casually mentioned that I had such a ‘checklist’. The technical director of the ISE (Dr John Dougill) was at the meeting and asked to look at it. I was then asked if the ISE might ‘polish it up’ and publish it; this they did with myself as chairman of the small drafting group (ISE, 1991).
Importantly, because it was for use on site when doing the inspection, I personally designed the layout of the book, including its size, the type of material upon which it was printed, and decided how it was to be bound – all so that it was user-friendly, particularly on site. It was published in 1991 (second edition 2008) and sold in its thousands. It was pink so that it would be conspicuous if mislaid; it was nicknamed the ‘Pink Panther’ after the popular film character of the time! As an aside, I had noticed that professional institutions were – and still are – very bad at ‘selling’ their publications; so once the guide was published, I took the initiative of going all over the country giving talks to ISE/Institution of Civil Engineers (ICE)/ RICS (Royal Institution of Chartered Surveyors)/CIOB (Chartered Institute of Building) branches and other bodies on ‘Surveys and Inspections of Buildings and Similar Structures (The Pink Panther)’.
It was – and still is – my view that, if a technical publication is worth the time and effort of producing, then it is important to ‘sell’ it – and the best people to do this ‘selling’ are those who wrote it. It is my opinion that, by doing this, (a) one sells the subject, (b) one sells the institution that produces it (the ISE in this case) and (c) one can also sell one’s self – you just have to remember the order of importance in which the ‘sell’ is presented: a/b/c; but that is certainly the way to ‘market’ a good publication. As a teenager, I worked on a market stall, so I also used other ‘incentives’ to help sales, but I’ll leave those for your imagination!
It was also just about this time (1990s) that continuing professional development (CPD) was being introduced into professional institutions and societies; so, with three of my fellow ‘drafters’ of the guide, I put together a set of lectures; I gave numerous CPD seminars in London and around the country – and abroad – on the topic of ‘surveys and inspection of buildings and structures’. This apparently made me ‘an expert’! The question sessions after the presentations were the really important parts of the seminars: I learnt what the audiences wanted to know – and what I did not know!
A small story – about this time, I was involved in an arbitration in Manchester concerning a landslip at Bollington in Cheshire (Figure 1). The barrister for our client was a young man called Mr John Uff; it was rather disconcerting to find out that Mr Uff had originally trained as an engineer, was an ICE member, and had a PhD in soil mechanics, so he probably knew more about the technical aspects of the matter than I – his expert; but he was very good about it! He was later appointed a QC (Queen’s Counsel); among other things, he was to chair many important inquiries and be awarded a CBE (Commander of the Most Excellent Order of the British Empire); interestingly, the counsel for the other side was another young barrister – Mr John Rowe – later to also be appointed a QC and subsequently chairman of the Bar Council. At that hearing, I was surrounded by ‘talent’ in its gestation!
But I am going ahead too quickly. About 1975, the numbers of claims being made by householders to household insurers for subsidence damage to domestic property increased dramatically, because ‘subsidence’ – then also ‘landslip and heave’ – had been included as an ‘insured risk’ in household policies from 1972/73 (Figures 2 and 3). About 1983, a local householder, who knew I assessed ‘cracks in property’, asked me to meet his insurer’s claims manager, who was coming to look at some cracks in his house. I inspected the property with the gentleman from the insurers and explained why I thought the damage was the result of subsidence – and explained what I thought needed to be done to rectify it. Apparently, the man went back to his boss Mr Fred Nash, chief claims manager at NEM Insurance Ltd, and suggested that the company use me to assess their subsidence claims – as, in his opinion, I seemed to know more about the matter than the loss adjusters that they used. This word spread to other insurers who started to use me for technical advice – with or without adjusters. Adjusters also invited me to give their staff lectures on ‘subsidence’ and its identification and rectification.
So alongside my normal work of new build and alterations to existing buildings, I found that I was being consulted more and more by insurance companies to help with assessing the technical aspects of building claims, particularly ‘subsidence’ claims.
By 1984, subsidence claims in the UK were running at 25 000 claims a year and by 1991 at 60 000 claims a year (value then at over £500million p.a.) – resulting in a significant influence on premiums and on the ability of owners of affected properties to get insurance cover. Speaking with claims managers, I noticed that the number of claims varied ‘up and down’ depending on the ‘dryness’ of different summers, the geological nature of the area, the presence of large vegetation, the vagaries of the housing market and of the national economy – a complex mixture. It had also given rise to a virtual industry of contractors, adjusters, assessors and lawyers – all living off ‘subsidence’ assessment and repair – and the associated disputes!
What was very interesting to me was that there was little incentive to resolve the problem, because there were so many parties making a living off the ‘subsidence phenomena’. The situation was then further compounded by the Department of the Environment deciding to make ‘underpinning’ a notifiable activity, for which Building Regulations approval was required. This total ‘circus’ really put a block on the housing market!
In the midst of this market turmoil, the ISE asked me if I would write a ‘leaflet’ on ‘subsidence’ for guidance of the members. I had been thinking for some few years about the chaotic situation that had developed around the subsidence issue (over the period 1980– 1990) and which then had grown to almost a ridiculous state with no rules or rationality and, in my opinion, tens of millions of pounds being needlessly wasted each year.
I explained that it needed more than ‘a leaflet’ – much more!
So arose my idea of a multidiscipline task group of all interested parties – insurers, lenders, engineers, loss adjusters, local authorities, arboroculturalists, lawyers, consumers, contractors and others. This resulted, under my chairmanship, in the seminal publication Subsidence of Low Rise Buildings (published in 1994, second edition in 2000 (ISE, 2000)) which also proved another very popular technical guide and which also sold in its thousands! Apparently, this made me even more ‘expert’.
There was only one sour note to the production of this guide; a member of the task group used the vast amount of information, assessment and comment that our group collected, assessed and correlated to draft his own publication for another professional body. They published just before we did. The other publication was very ‘lightweight’ and was substantially ignored, but I learned a sad but salutary lesson about human nature and the lack of ethics of commercial interests, even among professional bodies. It was an experience that stood me in good stead later when I was appointed to high office at the ISE.
For the subsidence guide, the first really multidisciplinary publication of the ISE, the same procedure was followed to publicise it as broadly as possible; it sold thousands of copies and, with its second edition, became an early and leading publication on the subject for a period of some 15 years – it is still often referred to, which is a great credit to all those who contributed to its content and publication.
Over the years, I have written papers and articles on the topics of my expertise – and even been ‘in the media’! The last substantive publication with which I was involved was as a member of the RICS task group that produced Building Surveys and Inspections of Commercial and Industrial Property (RICS, 2005) (Figure 4 above).
First experiences of acting as an expert witness in the ‘lawless’ 1980s!
When in the role of EW, as well as advising clients and their solicitors/barristers, one meets other ‘experts’ – some with whom you act jointly and others who act for the other parties.
These other ‘experts’ I found to be a disparate lot – some competent, some incompetent, some honest, some downright dishonest, some qualified, some with experience only, some without qualifications or experience. Some so impressed with themselves that they were determined to ‘appear’ in court.
And frankly, in my view, the solicitors who instructed them were sometimes of little help – in one case my ‘opposing expert’, a chartered structural engineer, when questioned in court on the content of his report, told the judge that, as an engineer, he did not agree with all that was said in his report. He was asked ‘why’ by the incredulous judge; he said that it was his solicitor that that had written ‘his’ report – and not him; he said that he was only required to sign it. I have a few anecdotes in this vein; I often sprinkle my lectures with some of these true ‘gems’ – to keep the audience awake.
A lecture on EW matters can be so boring – very few nice pictures – if you are to avoid legal action!
But more seriously, I was very concerned by the actions of a significant minority of these other ‘experts’, who seemed to be nothing short of ‘hired guns’ for their clients; focused solely on winning, irrespective of the credibility of the case they were presenting – bullies, fraudsters, fee jockeys (experts who complicate the issues and then ride their client for the fee!); many often even lacked an understanding of the technical aspects of the case that they were advancing. How they ever became professionally qualified – if they were – I did not know. In some cases, I concluded that many of them had probably never worked on a real design, or assessment, or been involved in a real building for decades; they were professional ‘expert witnesses’ – there to criticise other’s efforts – nothing more!
Commenting on the role of the EW
About 1982 – and based on my experience until then – I prepared a paper on the subject of ‘The Structural Engineer as Expert Witness’ and submitted it to the ISE for consideration; it could easily have been ICE but, at that time, ICE seemed more distant and very much the ‘establishment’. Although I did attend ICE branch meetings, I knew few branch officers.
After some months, the paper was returned from the ISE with a plethora of ‘carping’ comments and with the critical conclusion that it was, anyway, not a suitable topic for an engineering institution to publish. Naturally, I was very disappointed. I later found out that the ‘reviewer’ was the only ISE member who was also, at that time, a barrister; so he would know! I let the matter drop. I was amused when some 10 years later, the ISE published a guide for structural engineers acting as EWs.
Then about mid-1986 I noticed an ‘advert’ in a journal, the New Civil Engineer I think, inviting the submission of papers for an International Conference on Structural Failures to be held in Singapore in March 1987. I had never been abroad to a conference and this was a topic that interested me, so I did a short paper on assessment of defects in existing buildings; I was sure that it would be rejected, because this was an ‘international conference’. Just as I was about to send it off I thought, why not send the rejected ‘ expert witness’ paper as well?
Much to my surprise, both papers were accepted. It was a very big conference (2 days and about 400 delegates from all over the world). My EW paper was commended in the opening session by the keynote speaker – an eminent international lawyer Mr Max Abrahamson; he said that he had never before seen such an interesting paper, on such an important subject, written from the point of view of ‘the Expert’.
After my presentation, I was congratulated by a number of delegates and asked for copies of my slides; that was in the days when ‘35-mm slides’ were used but not copied into the papers. It seemed that I had scored – and internationally!
Interestingly, some 15 years later in December 1999, I was asked to present a paper – in French! – at the Palais de Luxembourg in Paris to a conference considering aspects of civil law for the European Union. It was under the chairmanship of the president of the French Supreme Court. My paper was on the experiences of being an EW in the UK; it was well received and provoked some heated debate among delegates; fortunately, I was not asked to join in, so my limited knowledge of French was not exposed. After alI, I was only a Brit, so what did I know?
What has happened in the last 40 years to ‘clean up’ the expert witness field?
The most important legal case is probably that of the Ikarian Reefer (National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd ) in which Mr Justice Cresswell highlighted the problem of unreliable experts and set out the basic requirements governing the use of ‘experts’ and the standards with which ‘experts’ should comply.
This was followed in 1994/96 by the investigation of many civil law shortcomings by a committee chaired by Lord Justice Woolf; it resulted in the publication of the first set of the Civil Procedure Rules (CPR) (HMG, 1998). Precociously, I had made some representations to the committee on the problems affecting EWs, as I saw them; Lord Woolf asked me to expand on my observations, which I did; some of them were incorporated into the new rules – I am sure that many other contributors made similar points, but it was nice to be acknowledged in the report as a contributor.
Despite the above, I consider that there are things that still could be done to improve the credibility with which professional practitioners are viewed.
Is the EW – as a species – different from the normal expert?
Perhaps he/she is. Certainly, the role is different from most normal professional practice that civil and structural engineers and surveyors experience, but writing reports for legal proceedings should surely be no different from any normal expert report for a client. For legal proceedings (because of the Ikarian Reefer case?), the CPR normally require an expert to give, at the end of their report, a formal declaration of professional competence and integrity and to note the limitations, if any, of the contents of the report – such as what they consider to be fact and what they consider to be fair deduction or reasonable speculation. But surely this should be the case in any competent report?
Despite the introduction of the CPR, I regret to say that I still see reports that make outlandish statements and draw unsustainable conclusions, presumably in the expectation that the protagonists will not have any intention of actually going to court. A civil court action can be very expensive and time consuming – even for the ‘winning’ party.
What is unusual in legal proceedings is that the ‘expert’ is a ‘witness’ and once acknowledged as such by the court, is responsible to the court (not to his/her client) and must be prepared to attend court (or the tribunal) and, on oath, give ‘expert evidence’ in person and to be cross-examined on his/her professional opinions – by (very clever!) barristers! That is certainly daunting – and perjury is a crime!
The Academy of Experts, founded in 1987 and based in Grays Inn London, serves a very useful role in advising experts – and clients – on the different forms of dispute resolution: arbitration, mediation, adjudication and so on. It also runs courses and seminars to explain to those acting as experts what is expected of them when they act as an EW.
Surely for an expert to advise a client on a matter, it is their professional experience and expertise that are the primary considerations not how they ‘write’ reports for court proceedings or how they give evidence in court. Yet, over the last 20 years or more, there has arisen a small ‘industry’ for the training of EWs: university- accredited courses, books, guides, seminars, tutorials and so on. I am intrigued at the growth of this sector of specialist support services for the legal world.
What I am not sure of is why these ‘experts’ need such very specialist training to give evidence. In my view, it leaves the expert open to ruthless attack by the lawyers in cross-examination – and without protection from the judge. They are now seen as highly trained courtroom ‘players’; so they are fair game for the barristers. In my view, the whole purpose of asking the opinion of experts has been eroded and hearings have become, in some cases, nothing short of subtle cage-fighting – but perhaps legal proceedings were in some respect, ever thus.
The EW that I am most worried by is the one who seems to do nothing else but act as an EW. I knew of one ‘expert’ who said that he specifically moved his office into one of the Inns of Court, so as to be close to the lawyers and their clients – fascinating!
The EW on stage!
I will now give a few observations about what I have learned personally about investigating problems and acting as an ‘expert in court’; to do this subject justice would need a much longer paper – perhaps even a book. My paper at the Singapore conference was more focused yet still some 20 pages long, but here goes.
Topics that I think are relevant for inclusion here are as follows.
(a) The task – it is normally one of two types
1. to advise upon some building, structural or contractual problem or dispute within the experience/expertise of the expert
2. to comment upon a professional service given by a member of the same or similar discipline, as the expert.
(b) Within the task, the expert may be required (Figure 5)
1. to assist in sorting out a specialist problem
2. to conduct expert investigation/assessment
3. perhaps to meet with other experts to try to ‘narrow the issues’
4. to give quality and relevant specialist advice, opinion and conclusions
5. to produce a fair, clear, competent and credible report based on the expertise and opinion of the expert
6. to do all the above with integrity and efficiency
7. to be conscious of their position in the ‘team’ advising the client.
Within (a) and (b), clearly, you must be very experienced in your discipline and preferably a recognised expert in the relevant field. How that is decided is for your client and the lawyers to determine. They may already know of you, you may be recommended to them, they may consult your curriculum vitae or interview you to see if you are what you say you are – so clearly, you must not present yourself as that which you are not!
You must give competent, authoritative and correct advice. To have published on the subject of your expertise and to have held positions of seniority in your profession and/or company may be a help; it puts on show your expertise and indicates that your peers have some confidence in you.
You must keep up to date in your expertise.
Since 2011, EWs are no longer immune from prosecution if they fail to act correctly and in accordance with the CPR; they may be open to legal redress by those they advise or mislead. In other words, it is no longer a ‘nice little earner’ for the semi-retired and those reluctant to do ‘real coal face’ work; being an EW is a serious task and it should be seen as such. When investigating a problem, make sure that you try and see the evidence for yourself, if you can – first hand! Try not to rely on others to tell you what was/is there.
In one instance, a building collapsed in Liverpool (Figure 6); it was agreed that the collapsed rubble would be dug out and the undisturbed site below inspected. I made sure that I was on site at 7:00 a.m. to see the work from the start and to watch carefully as it progressed. None of the other experts thought it necessary to attend until late morning after the rubble had been removed. By that time I had already established the cause of the collapse and had disproved the contractor’s story; the explanation was complex, but I was the only person who had seen the evidence – and recorded it in photographs. My report and opinion was accepted as the definitive one. I feel sure, indeed I know, that if I had not been present from the start, vital evidence would have been lost.
Another case concerned a tradesman who was doing maintenance; he fell out of the false ceiling of a supermarket and was seriously injured. An expert gave evidence as to how the accident occurred, based on the original drawings that purported to show how the ceiling structure had been built and so to confirm his view as to why a local collapse occurred.
However, before the hearing, I went to site and exposed the area of the incident and some adjacent areas – it had not been constructed as it should have been; it was not as shown on the drawings; my explanation of the cause of the accident was accepted by the judge. Always check information on site/at the scene, if possible!
(c) Do not assume that other experts are competent and/or honest.
A respectful scepticism is a good principle to adopt.
Typical instances include the following.
(i) The expert who stated that the foundation was only 300 mm deep. True – but that measure ment was to the top of the foundation and not to the bottom.
(ii) The expert who undertook trial pits and stated that the building was founded on soft clay; only for my excavations to show that it was in fact on dense sand.
(iii) A high street building collapsed. Among a vast pile of documentation (including hundreds of photos) that was supplied by one party to support their case, I noticed that there was a photo missing from a ‘numbered’ run of eight; it had mysteriously ‘disappeared’. Persistent harassing of the other expert and his client contractor eventually ‘discovered’ the photo; it almost certainly explained why the building collapsed. It was crucial in disproving much of the other party’s case; presumably he knew this and so ‘lost’ the photo.
(iv) The engineer who was helping to pursue a substantial insurance claim for his client. In an attempt to frighten the insurer into making a quick and generous settlement, he stated unequivocally that the building in question was in a dangerous state and likely to collapse at any moment. This of course meant that his client, the building owner, would be required to cease using the building and vacate it; when the implications of this were realised by him and his client, the building miraculously became ‘stable’ again with only one Acrow prop inserted at one end of a doorway, as a token gesture of temporary remedial stabilising works.
(v) Beware of telephone discussions with other experts. I had the experience of ringing another expert (with his client’s permission) to discuss and to clarify a technical point. I failed to confirm promptly what we had discussed and agreed. Subsequently, the other expert denied agreeing anything with me! He denied even speaking with me – and I could not reasonably prove otherwise! But his client still lost the case!
(vi) If he/she has not already added a ‘Statement of Professional Competence’ to a report, then the dishonest, unscrupulous or incompetent expert can effectively say anything without a need for it to be correct or even carefully considered.
(d) Be aware that one’s client may not always be telling the truth. I have had at least four instances where my client has misled not only me as his ‘independent expert’, but also his solicitor – and in one instance, also his fellow company directors – about the circumstances that lead to the claim. Again, respectful scepticism and genuine objectivity is called for with all clients.
Three of these instances were downright deceit.But what may appear as deceit is often not so.
It is important to realise that even honest people often believe things to be true which are not, because they wish to see them in the best light – the truth that is believed to be the truth, rather than the real truth.
Memory can be particularly unreliable and flexible – 25 years as a magistrate taught me that!
(e) Beware of cases that depend on calculations alone (Figure 7)
I have had more than one instance of an ‘expert’ using calculations alone to justify his views: in another instance, this was to justify the vacating of a complex of apartments and then requiring its potential demolition. The expert asserted that his calculations ‘proved’ that the building was likely to collapse in high winds at any time. The building was then 20 years old and showed no signs of any distress whatsoever. During the discussion about the validity of the claim, exceptionally high winds occurred – the most severe for decades. The building withstood the storms without any distress or movement – not even an indication of inadequacy. I suggested that perhaps the calculation did not consider the ‘whole building’ structure and suggested where other structural benefits may have lain. My client (a subcontractor) was released from liability and, to the best of my knowledge, the building is still standing – unoccupied and without detriment! – many years later.
Meetings of EWs
To help speed up matters in court, it is often directed by the judge that EWs meet on a ‘without prejudice’ basis to try and ‘narrow the issues’; this is a very sensible and productive procedure, if conducted properly, but unfortunately, it often fails.
Failure can occur for numerous reasons, but often it is because the wrong expert was engaged, the expert is incompetent or unscrupulous – or the right expert was engaged, but too late!
Before now, I have been appointed after a number of the issues have been agreed, but in my view agreed wrongly, and to the detriment of my client.
There are well-established recommendations for how EW meetings should be arranged and conducted. I have spoken and written on this often; here I shall touch on some of the more ‘interesting’ aspects of these meetings.
Because EW meetings are ‘without prejudice’, nothing is officially recorded or issued unless agreed, but useful discussions can be beneficial between parties of good will. Lawyers often put in long lists of ‘items of claim’ to try and cover all legal options. Often many of these are relatively trivial or repetitive – in financial and/or technical terms – and, providing no party is trying for a PhD on any small point, can often be rapidly dealt with by the EWs, leaving only the important issues to be considered in detail.
(i) These meetings are as much an exercise in diplomacy as in technical discussion.
(ii) Try to concentrate on the ‘issues’ as stated in the ‘pleadings’; do not try to deal with any matters not in the claim and/or defence documents. It is not what should have been claimed that matters, but what was/is claimed. If you have any suggestions about altering the claim/defence documents, then make them to your client or instructing solicitor separately; they will make that decision. Do not raise them at the experts’ meeting.
(iii) EWs are often able to compare alternative views about how a problem might be dealt with; it is not always solely about a technical answer, often financial and potential disruption issues are equally important; a floor relaid in sections in a functioning workshop may be more expensive per square metre, but much less disruptive to the use of the building – so cheaper overall. Alternatively, the claimant may say that he cannot work in the area, if the work is to be done in phases; perhaps this is true – or perhaps he just wants a cash settlement – for moving out and then relaying the floor – when in practice he actually stays in the building during the work and makes a greater financial ‘killing’; there are often many ‘angles’ to consider.
(iv) Even if, after some discussion, an EW is thought (or found) to be seriously ‘off beam’ and starts to realise that he/she is so, it is in my view inadvisable metaphorically to shoot them in the chest. Find some issues upon which you can agree with them and then let them down gently. Remember that the other expert has to explain his/her ‘misunderstandings’ to their client. Make them look too much of an ‘incompetent’ and he/she may just dig their heels in and refuse to see sense. The court case then costs immensely more (in time and cash) than it would have if sensible compromise had been agreed early on. Also, if the case is fought, there is always the chance that the undeserving party may just win. Judges are not infallible – hence the appeals system – but most civil miscarriages of justice are not worth appealing without serious consideration of the likely further stress and financial risk involved. Though I have known a major case be pursued to the supreme court of another country – but that case was worth an awful lot of money! I am pleased to say that my client was successful (Figure 8).
(v) Unfortunately, I have seen what I consider to be cases of miscarriages of justice, which have caused me great sadness, particularly where individuals were involved rather than impersonal entities and companies. Like the large number of terraced properties in a northern town that were declared unfit for human habitation, so that – in my view – the local authority (LA) could buy them cheaply for a clearance project to build an academy school, rather than buy them at market value, which would be more financially onerous and protracted for the LA.
In my view the properties were no worse than many hundreds of similar properties in the town. It seemed to me that the interests of the mainly elderly residents and poorer families who occupied them were effectively ignored in the name of ‘progress’. Fortunately, the subsequent public enquiry, at which I gave evidence, did at least get some financial recompense for the residents – but that is no compensation for the destruction of a community.
(vi) Even if a claimant wins, having to prove loss of earnings, expenses and so on, of the winning party is a nightmare – irrespective of the stress and personal disruption caused.
(vii) It is often the case that, despite the directions of the court, ‘instructing solicitors’ are reluctant to allow their experts to agree anything with representatives of other parties. This frequently means that some experts feel very inhibited about discussing, even on a without-prejudice basis, anything which might imply that their client has some liability. Without the opportunity for free discussion/debate, the meeting of experts is, for all practical purposes, quite useless.
(viii) To overcome constraints placed on experts by their solicitors and/or clients, it is sometimes useful for all, or at least some, of the experts to issue an ‘aide memoire’ of their discussions, rather than the socalled ‘agreed statement’, which the court would prefer. The ‘aide memoire’ is, for all practical purposes, the unofficial ‘minutes’ of the discussions between the EWs, as taken down by one of them – the ‘scribe’ – and agreed by the most of the others; it represents the next best record of what was said. Though not admissible in court, it can be very useful to all parties. The advantage of the ‘aide memoire’ is threefold.
First, it records as fairly as possible, what was actually said at the meeting(s) – there may be more than one meeting. It sets out the views of the experts as to who agrees with what and who does not. Second, it avoids the possibility of different EWs inadvertently – or deliberately – recording and transmitting different versions of what was said.
Third, if the particular EW chooses, the ‘aide memoire’ can also be shown to their client/solicitor, so that they can see where things are going. It also avoids – or at least reduces – the likelihood of EWs misleading their clients or solicitors as to the content of the discussions; I have known cases when some EWs agreed on issues, but others were not allowed to do so, but having the aide memoire helped all parties make progress with the case.
(ix) There is some debate about whether experts’ meetings should occur before exchange of reports or afterwards. Provided the issues are known, some EWs favour meetings being held before exchange of finalised reports, as that gives EWs the opportunity to modify their views without having to ‘lose face’ by officially having to retract officially stated opinions. Construction professionals, like politicians, seem to find it very difficult to admit to the possibility of their being wrong – or even slightly wrong.
The counter-view suggests that unless one knows the opinion of the expert, one cannot debate it. So meetings of experts should be postponed until late on in the proceedings and if possible – some say – avoided altogether.
I prefer the former course of action.
(x) I once attended a meeting of EWs at which the solicitor for one party insisted on being present; when told that he was not entitled to be present, he said that he would not take part – just make notes! The meeting was adjourned and convened on another day – the solicitor was not present on that day.
(xi) Engineers are – of their nature – practical people. Once, before a hearing, I offered to make a model to demonstrate to the court my view as to just how a particular collapse had occurred. My solicitor was adamant in refusing the offer; he had the bitter experience of once allowing such a demonstration – to prove that a crane was capable of lifting a particular load safely; during the demonstration, the load fell out of the shackles holding it and proved the other side’s case!
(xii) Likewise, be careful about ‘opening-up’ to prove something in front of the other experts.
Though you may prove your point, other less favourable evidence may be revealed. As in the case where an expert excavated to show that a foundation had been taken to the specified depth – it showed clearly that the foundation was at the correct depth, but unfortunately much smaller than it should have been! Barristers have a good principle – never ask a witness a question to which you do not already know the answer. The same is good advice for EWs’ demonstrations – be sure you know what you are going to find! If you must, open up and have a look before you give a ‘public demonstration’ – or don’t ‘open up’ at all.
(xiii) Finally in this section, it is wise constantly to remember that, just because another expert disagrees with you (in whole or in part), does not mean that they are wrong. One must constantly be examining one’s own arguments honestly and in detail – particularly as evidence develops.
Review of the expert’s report
I have had the privilege of being a magistrate for over 25 years, so while I respect lawyers and court officials, they do not frighten me – as they do seem to frighten many EWs. If you are about to go to court for the first time, I suggest that you visit a court, preferably a civil court, beforehand and sit in the public gallery; listen for an hour or so to a case (it will probably be very boring!); get familiar with the environment; particularly listen to witnesses being examined or cross-examined, so that you have some idea of what to expect.
Importantly, always respect the judge. In criminal cases, the judge must follow the decision of the jury; in civil cases, his/her word alone is decisive – subject to any subsequent appeal.
At a stage before the hearing (and after any meeting( s) of experts), it will be ordered by the court that experts’ reports be exchanged. Before exchange, the barrister or solicitor (usually the solicitor) acting for your client may wish to examine your final draft report in great detail. This is for a number of quite legitimate reasons. These are principally to ensure that the report complies with the CPR.
I find these exercises to be very challenging but an invaluable experience for examining the EW’s findings, opinions and conclusions. They are effectively a ‘trial’ cross-examination of the expert to test the technical case in detail.
If conducted properly and in the correct spirit they are intended to do the following.
(i) To ensure that the expert report addresses all the matters which are at issue and within his/her expertise and does not deal with irrelevancies or matters that are not pleaded.
(ii) To ensure that the report is logically drafted and in sensible order; that the language is clear and that no ‘dangerous’ words like ‘ensure’ are used – unless advisedly; that there is no hyperbole; that all that is contained within the report is stated fully, fairly and reasonably.
(iii) To ensure that it is ‘expert opinion’ and deduction, and not an exercise in advocacy – leave that to the lawyers!
(iv) To ensure that there are no ambiguities, contra dictions or other confusions within the report.
(v) To require the expert to give further clarification on any point, if that is thought appropriate.
(vi) To avoid the expert reaching conclusions as to liability. These are strictly speaking the province of the judge. I know from personal experience that some judges can be very touchy on this point.
(vii) To ensure that the report does not breach any of the accepted legal procedures.
Although in my experience, rarely the case with barristers, it is sometimes the case with solicitors (because of their proximity to the client) that they will put pressure on their experts to state views or place emphasis with which that expert does not really agree. As I have said, it has even been known for a solicitor to take a series of preliminary reports (or a draft report) produced by an expert and then to draft the final re port himself for the signature of the expert.
Your report for presentation to the court has to be your own professional expert view and one that you are prepared to stand by and be able to justify before the court.
Failure to see faults or deficiencies in one’s own case can cast doubt on the credibility of those aspects of your argument which might be fair and favourable to one’s client.
It does not further your client’s case if you are seen to be prepared to stand by him – right or wrong. When the crash comes, as it invariably will, it will be all the greater.
The court expects that you will present expert, balanced and fair evidence, and, as the evidence dictates, concede fault (or liability) on behalf of your client on matters within your expertise where that is – on the balance of probability – fair.
Tips when in court
(i) Jousting between the retiring rooms – just before the hearing. In my view, for an EW, the most fraught period of any case is the first morning of the hearing when the parties meet for the first time before ‘doing battle’.
All parties are on edge and informal ‘jousting’ between the various lawyers is common, sometimes delaying the commencement of proceedings by a long period; an hour’s delay is not exceptional. The judge is told that a ‘settlement’ is being ‘explored’ or that some matters have just come to light and need to be ‘ clarified’.
Judges seem to be very tolerant of this behaviour; in my experience it does sometimes lead to a settlement or at least the ‘narrowing of the issues’ – as the phrase goes. Sometimes, it is the stage at which one side or the other tries to pull professional ‘tricks’ to gain an advantage; these tricks often involve the experts and the expert evidence.
(ii) The belated presentation of important ‘recently discovered’ relevant information.
With much formal apology, the barrister for ‘the other side’ will produce a bit of evidence, a document, a calculation, or a sketch, which purports to strengthen their case and weaken yours. The ‘quotation’ or ‘calculation’ will have been revised! This immediately throws you into a state of panic. Your barrister will be furious with the other side for doing this and perhaps also with you for not anticipating it. Have you made a mistake? Have you missed something? You will be expected to come up with an instant answer/ calculation/sketch; often it is just a ‘shot across the bows’ by the other side to see how you react, as an EW.
Some 20 years ago, in the middle of a case, I was presented with a substantial sheaf of calculations purporting to ‘prove’ something. I spent most of the night checking these calculations, only to conclude that they proved nothing. Next morning, the other side was told of my opinion – ‘on reflection’, they then said that they would ‘not pursue it’. No apology.
Interestingly, I was due to give evidence that day after only some 2 hours’ sleep.
(iii)When giving evidence my advice is to keep cool and stand – do not sit down.
Standing avoids your becoming too comfortable. Your inquisitor is standing – you do the same. In one instance, in Hong Kong, I was ordered by the judge to sit! Why I do not know, but you do not disagree with the judge! In my view, sitting while being questioned by somebody who is standing, gives the in quisitor a psychological advantage.
(iv) Cross-examination can be brutal. It is the objective of the opposing barrister(s) to find flaws in your evidence – effectively to discredit you. This may be as to your competence, your examination of the issues in the case, the wording of your report, your deductions, your conclusions, whether you are biased, whether you are expressing opinions that are the purview of the judge or arbitrator – or indeed issues that are beyond your expertise; barristers are exceptionally clever in their cross examinations, never underestimate them.
Be prepared for sarcasm and belittling comments – always delivered with a degree of charm and finesse. If you are being ‘bullied’, the judge will normally protect you, unless of course the judge is also sceptical about your evidence.
I have found that a good riposte to a belittling comment from a barrister during cross-examination is to say, ‘That comment is unworthy of you Mr...’ – but use it sparingly and only when relevant!
In one case before the Official Referee’s Court (now the Technology and Construction Court), I was the EW for a group of elderly people who owned a newly built block of flats that had to be the subject of a substantial remedial underpinning scheme to prevent it sinking into the ground (Figure 9). There were a number of defendants in the case, each with their own EWs and senior counsel. Because I was the EW for the claimants, I was ‘in the box’ very early in the hearing; I was cross-examined for days – it seemed to be for weeks! Each barrister had a go at me in turn – that is the accepted procedure!
It came to the last barrister – an eminent QC. After he had been cross cross-examining me for a day or more, he came out with an accusation that I personally had clearly already decided who was guilty and who was not in the case – trying to get me to show bias! I replied that, as I had been looking at the papers and the property for some 3 years, obviously, I had my opinions, but that it was the privilege of the judge to decide liability, not me.
The judge, a very senior member of the bench, turned to me and said, ‘Mr Clancy, this is a singularly complex case, if you have any suggestions that might help me, please be so good as to put them on a piece of paper and pass them to me!’
It was of course not an invitation to me to do so, but a subtle rebuke to the barrister for attempting a below-the-belt punch at me. I am pleased to say that after my days of gruelling cross-examination, the case settled in favour of the elderly owners!
But judicial experiences can also be amusing. A case in North Wales concerned a landlord who wished to regain possession of an old residential property that he had let to a number of tenants; it occupied a very pleasant spot overlooking the sea. He wished to de molish it and build a bigger property on the site.
To do this, he claimed that the property was unfit for habitation; it was my task to comment on that allegation as regards the interests of the residents. The tenants had protected tenancies. Two elderly lady tenants remained. They were friends and had lived there for very many years. The landlord had found them alternative accommodation in the middle of the town, but they would not move. The matter went to court. I did not think the property beyond reasonable economic repair and reported accordingly.
The landlord declared in his evidence that ‘these were just two little old ladies ... they had no right to stop him gaining repossession’. The elderly judge ruled against him, saying within the judgement that ‘little old ladies have to stick together’; we all noted that she was herself a ‘lady of advanced years’, but I think the irony was wasted on the plaintiff landlord.
12. Final thoughts and conclusions
This has been a very short assessment of the role of the EW, and how I personally came to be intermittently involved as one. I hope that it has thrown some light on the world of the EW.
What I am most proud of is that I have been–may still be– considered an expert in my professional engineering and construction fields. Some still seem to think so as, despite probably being past my sell-by date, I still get asked for advice from time to time – and I still attend lectures and courses on relevant topics because they interest me.
Like the construction projects for which I have been responsible – from as little as a few thousands to many millions of pounds – I have also been an EW in some of the smallest disputes – small- claims court, less than £5000 – to the High Court in Hong Kong in a claim worth £120million (Figure 8). I think I have some reasonably broad experience in both sectors.
Without meaning to sound pompous, may I say that there is no doubt that professional practitioners of all disciplines (medics to lawyers to accountants to engineers and so on...) serve an essential role in helping to resolve disputes in all walks of life – because they have expert knowledge acquired from years of experience in their field of specialisation.
However, what I have often asked myself is: why do otherwise sensible people, who become the clients, spend so much time and effort in the negative activity of civil litigation – particularly in the construction industry?
As I said at the beginning of this paper, few cases are really complex or require a special legal ruling – they seem to be generally exercises in ‘bullying’, inefficiency, dishonesty, arrogance or stupidity.
I am not a defeatist – far from it – as those who know me will confirm, but, as far as civil legal proceedings in construction are concerned, my advice would be to do a cold-blooded ‘SWOT’ (strengths/weaknesses/ opportunities/threats) analysis before embarking on the path of litigation. Win or lose, everyone gets paid (mostly!) except the litigants, one of whom may gain in material terms most of what they sought, but they will never be properly compensated for the stress and effort that they put into the dispute.
Fortunately, in construction cases, the majority of disputes probably never get to court, because after advisors and/or experts have met and decided where they agree and where they differ, the majority of cases can normally be resolved without the need to go to court; that is, if the parties apply common sense to the situation (Figure 10 below).
As I have said above, probably the most difficult situation that I have encountered is differentiating between the three ‘types of truth’, as I call them: evidence which is the truth; evidence that is believed to be the truth but is not; evidence that is lies.
In my experience, the most difficult one with which to deal is the second.
I will finish with two short anecdotes which may sum up my opinion.
One of my corporate lawyer friends from a large practice once quipped of his ‘brickie’ litigation lawyer partners: ‘There is nothing that a litigation lawyer likes coming through the door more than a “man of principle”!’ ‘I’ll get him for this, if it costs me my last fiver!’ – It often will! I think the same can often be said of some EWs, who seem to display very little regard for the cost of the litigation relative to the value of the claim; the courts have tried to redress this anomaly in recent years but, as I understand it, mediation cannot be forced on parties.
Now one of my own.
I have often likened a dispute, which goes to court, to a heavyweight boxing match! After 10–15 rounds, there will be a winner and there will be a loser. Forget the loser – he is in terrible shape; look at the winner! He will also be in a bad way – and there will be lots of blood all over the floor of the ring; a lot of it belonging to the winner.
Is there possibly any other way to settle this dispute? That is why I prefer engineering, but I have enjoyed the diversion of being the occasional EW and helping to resolve some disputes. Unlike one expert of my acquaintance, I will not be moving into chambers in one of the Inns of Court – so as to be nearer my potential clients! Though funnily enough, back in 1962, I started my career in Grays Inn where Oscar Faber & Partners had their London offices, but so also did many architects and other professionals at that time.
HMG (Her Majesty’s Government) (1998) The Civil Procedure Rules 1998. The Stationery Office, London, UK, Statutory Instrument 1998 No. 3132 (L.17).
ISE (Institution of Structural Engineers) (1991) Surveys and Inspections of Buildings and Similar Structures. Institution of Structural Engineers, London, UK.
ISE (2000) Subsidence of Low Rise Buildings, 2nd edn. Institution of Structural Engineers, London, UK.
RICS (Royal Institution of Chartered Surveyors) (2005) Building Surveys and Inspections of Commercial and Industrial Property, 3rd edn. Royal Institution of Chartered Surveyors London, UK.
National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd (The “Ikarian Reefer“)  2 Lloyd’s Rep. 68.