The Role of the Expert Engineer in Construction Disputes

Transcription

1 Presentation to Engineers Ireland South East Region The Role of the Expert Engineer in Construction Disputes 12 January 2012 David Buckley BEng (Hons), LLM (Const. Law & Arb.), CEng MIEI MICE Chartered Engineer.

2 Presentation Overview Definitions of an Expert & Expert Witness Types of Roles Undertaken by an Expert Engineer in Construction Disputes Types of Construction Claims Duties & Responsibilities of an Expert Engineer The Expert Engineer s Preparation for Dispute Resolution Forums Relevant Research Findings on the Role of the Expert Engineer in Ireland Proposed Guidance for Irish Expert Engineers

3 Definitions for Expert/Expert Witness In the Irish Jurisdiction there is currently no definition under law for an Expert/ Expert Witnesses in court or otherwise. This has been left at the discretion of the trial judge. Other common law jurisdictions such as Australia, Canada & US provide definitions for an Expert & Expert Witness under law.

4 Definitions for Expert/Expert Witness Expert a person, who through education or experience, has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact finder. Expert Witness a witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or other specialised opinion about the evidence or a fact issue. (Black s Law Dictionary, 1999)

5 Types of Roles Undertaken by an Expert Engineer in Construction Disputes Expert Advisor Expert Witness

6 Engineer as an Expert Advisor Appointed to give an initial opinion on a claim and to determine: The factual evidence and the type of case that may be pursued with this evidence. The technical strengths and weaknesses of the client s case. The basis of technical arguments which may be included in a claim submission. Any measures to mitigate loss, if weaknesses are present in the client s claim, Promote settlement, if possible, prior to any litigation process.

7 Engineer as an Expert Advisor How to perform his/her role properly: Evaluate all documentation and evidence Perform a site inspection, Prior to providing conclusions, thoroughly determine all technical issues, Advise the client on conclusions. Advice must be balanced and independent as the Expert Advisor may be required to act as an Expert Witness

8 Engineer as an Expert Witness Appointed to Give Expert Evidence in Court/Arbitration/ADR: Must follow any rules agreed by parties in dispute. NB. There are currently no rules or guidance set out under Irish law for Expert Witnesses in court/arbitration. Owes an overriding duty to the court/tribunal rather than the expert s client Must be independent, objective and impartial EW is immune from suit in Ireland, although in the UK EW immunity was abolished in 2011, Jones v Kaney [2011].

9 Types of Construction Claims Breach of Statuatory Requirements Health & Safety Regulations Building Regulations Breach of Contract Defective Work Extension of Time Design Workmanship Negligence Negligent mis statement (Hedley Byrne v. Heller [1964]) Collateral Warranty

10 Duties & Responsibilities of the Expert Engineer No rules or guidance to assist the Expert Engineer when performing his/her duties. The Ikarian Reefer (National Justice Compania Naviera SA v. Prudential Assurance Co Ltd (1993)) rules used by many experts. In England & Wales the Civil Procedure Rules (CPR), particularly CPR 35 superseded The Ikarian Reefer rules following the Woolf Reforms. Both The Ikarian Reefer & CPR 35 are accepted guidance internationally in other common law jurisdictions.

11 Duties & Responsibilities of the Expert Engineer The Ikarian Reefer rules in summary: Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced by the pressures of litigation. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of an advocate.

12 Duties & Responsibilities of the Expert Engineer The Ikarian Reefer rules in summary cont d: An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. An expert witness should make it clear when a particular question or issue falls outside his expertise. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one

13 Engineer s Preparation for Dispute Forums Formulation of Claim/Development of Expert Opinion: An opinion cannot be developed without first analysing all the factual information. Problems (Damage/Defects) must be identified and what/who caused these problems. Preliminary opinion is formed and presented in a report, subsequently an expert court report will be produced as the basis of oral testimony. This opinion may be exchanged with the opposing party to narrow issues in dispute or lead to settlement of the dispute.i.e. in without prejudice expert meetings.

14 Engineer s Preparation for Construction Dispute Forums Forensic Analysis of Facts: All documents should be original and presented in chronological order by date i.e. Timeline of events Useful documents for analysis include: Original Contract documents including; Tender documentation including bills of quantities, Design reports including calculations e.g. geotechnical reports etc., Specifications, Construction drawings, Any correspondences.

15 Engineer s Preparation for Construction Dispute Forums Forensic Analysis of Facts (cont d): Useful documents for analysis include (cont d): Engineers instructions and any site instructions, requests for further information, Variation or change orders for the construction works, Issued certificates; whether interim or final, Site diaries, daily and/or weekly reports, quality assurance records and site test results, Site meeting minutes, applications for payment, accounts and final accounts, As built records.

16 Engineer s Preparation for Construction Dispute Forums Forensic Analysis of Facts (cont d): Further aspects for forensic analysis: Obtain evidence from manufacturers materials & products, Construction photographs Design and Construction methodologies to determine whether best practice was used and include a review of: Relevant codes of practice, Technical journals, Manufacturer guidelines, Employer or project requirements Any legislative requirements

17 Relevant Research Findings on the Role of the Expert Engineer in Ireland No guidance under law for construction experts in relation to topics such; Qualifications, Expert Rules, Expert Instructions, Expert Meetings, Expert Reports.

18 Relevant Research Findings on the Role of the Expert Engineer in Ireland No definition for an Expert/Expert Witness under law No control over the number of experts that can be used or the submission of expert evidence. James Elliot Construction v. Irish Asphalt [2011]. No legislation that tests the reliability of expert evidence

19 Proposed Guidance for Irish Expert Engineers Guidance is not limited and is based on research findings. Questionnaire replies from construction professionals who have acted as experts in court and arbitration in jurisdictions such as Ireland, UK, US, UAE, Egypt, Africa and Asia. Principle guidance topics provided include: Qualifications, Rules for an Expert Witness, Expert Instructions, Expert Meetings & Expert Reports.

20 Proposed Guidance for Irish Expert Engineers Recommended Qualifications: Being an Expert Engineer is not a profession in itself. It is a dual role where a practicing professional acts as an expert in court/arbitration/adr. A primary degree e.g. BEng (Hons), Hold a professional title e.g. CEng MIEI Chartered Engineer, Minimum ten years postgraduate experience, Postgraduate legal training, Remain up to date with best practice. CPD education and training with professional bodies with a minimum of five days every year.

21 Proposed Guidance for Irish Expert Engineers Recommended Rules: Expert evidence should be prepared in an independent and objective manner and not for the sole purposes of a dispute, i.e. avoid taking a partisan position. The Expert at all stages should owe an overriding duty to the judge/arbitrator in relation to his/her expertise. Including at meetings, inspections and through to expert evidence given to the court. Never act as an advocate. Provide balanced and independent expert evidence on all material facts. State the basis of all facts and assumptions. Research should be based on generally accepted practices and appropriate standards within the expert s field of expertise.

22 Proposed Guidance for Irish Expert Engineers Recommended Rules (cont d): If a question or issue falls outside the construction expert s area of expertise, this must be made clear to his/her client and court/tribunal. If a construction expert is of the opinion that insufficient factual data is available to draw conclusions then he/she should explicitly state this in his/her report and/or in court. [State only provisional opinion] If the expert changes his/her opinion where new facts are introduced, or upon exchange of experts reports, the opposing party and court/tribunal should be made aware of this at the earliest possible time, through legal representatives.

23 Proposed Guidance for Irish Expert Engineers Recommended Rules (cont d): The construction expert should not usurp the role of the judge/arbitrator. He/she should avoid giving opinions of what the expert would have done in similar situation or conclude that how the opposing party were wrong. The expert should confine himself/herself to technical issues and assist the court/tribunal with explanations on accepted professional practice within the expert s expertise. If the expert s evidence refers to photographs, plans, measurements, calculations, analyses, inspection reports or other reports, these must be exchanged with the expert s report.

24 Proposed Guidance for Irish Expert Engineers Items to be Included in Expert Instructions: Identification of the principle issues in dispute. Clear instructions in writing to include detailed descriptions of matters to be investigated, primary issues and identity of all parties. All relevant technical documentation should be provided in relation to the case and to assist the expert in providing a good standard of evidence. The expert s availability to attend court. All pleadings should be provided for reference purposes to the expert.

25 Proposed Guidance for Irish Expert Engineers Items to be Included in Expert Instructions (cont d): The expert s availability to attend expert meetings in order to clarify and/or narrow issues in dispute. Outline programme from the client for proceedings regarding expert submissions. The expert should be aware of the rules of privilege and disclosure. It should be noted that preliminary reports are not necessarily privileged in Ireland, see Payne v. Shovlin [2006].

26 Proposed Guidance for Irish Expert Engineers Expert Meetings: These meetings would likely give an extensive understanding of the issues in dispute. These meetings allow opposing experts to speak freely to each other and in general without the presence of legal representatives. These meetings also are held on a without prejudice basis. It affords the opportunity to opposing parties to settle a dispute without going to arbitration/court or at least narrow issues in dispute as it could save time and costs.

27 Proposed Guidance for Irish Expert Engineers Expert Reports Content: A statement that the expert understands his/her duty to the court/tribunal. This should include a statement of his/her independence and impartiality. The expert s instructions or brief. This will ensure that there is no confusion between the expert and client regarding the scope of expert s work and will clarify the same to the court/tribunal. The expert s qualifications and experience. Subsequent to these statements a description of the expert s expertise should be included.

28 Proposed Guidance for Irish Expert Engineers Expert Reports Content (cont d): Clear detail of all relevant facts that the expert has used to form his/her opinion. If any assumptions have been made this should be made clear. Provide a range of opinions with qualified reasons, even if opinions detract from the expert evidence. This demonstrates to the court/tribunal that the expert has assessed the facts objectively.

29 Proposed Guidance for Irish Expert Engineers Expert Reports Content (cont d): Where there is a range of opinions a range of conclusions will be required. For example, a conclusion may include a statement that an opinion was the least likely based on best practice or published material. Therefore one conclusion may override another. These conclusions should be clearly summarised at the beginning or end of the report. Where an expert has attended expert meetings he/she should discuss what was agreed and disagreed with respect to narrowing of issues in dispute.

30 Proposed Guidance for Irish Expert Engineers Expert Reports Content (cont d): Plans, calculations, publications, signed statements and photographs should be included in the form of appendices and referenced in the report. The report should include a signed declaration of truth that the expert has considered all known relevant facts.

31 Presentation to Engineers Ireland South East Region The Role of the Expert Engineer in Construction Disputes 12 January 2012 David Buckley Contact: or Visit