Expert Views - Utilising Expertise

"Early expert involvement is one of the key elements of most if not all construction or development disputes".

Early involvement may strengthen strategy, save time and reduce costs

Actively engaging an expert in the early stages of a dispute may strengthen the dispute resolution strategy, save time and reduce party costs.

An expert adviser or party appointed expert may assist in determining the strengths and/or weaknesses of any dispute and may be encouraged to suggest resolution strategies based on the experts specific knowledge and expertise in consideration of all the records and evidence that relate to the dispute. The developed strategy may influence settlement offers or specific requests for evidence.

However, whilst it may be useful to engage an expert adviser or party appointed expert early, if a party appointed expert is to be instructed to assist the Court or Arbitral Tribunal in making Judgment or an Award, the party appointed expert should be discouraged from reaching any early hard and fast conclusions as to his or her opinion until such time that the litigation or arbitration process has unfolded and the opinion of the expert is finally required. Above all the opinion must be independent and care must be taken in most matters not to act as both an expert adviser and then later as a party appointed expert.

Expert Adviser v Expert Witness

Unlike a party appointed expert, an expert adviser is not an expert witness and accordingly is not covered by the Civil Procedure Rules. As the label suggests the role of the expert adviser is to advise the appointer on expert matters whereas the overriding duty of the party appointed expert is to the Court or Arbitral Tribunal.

Early Involvement: The Benefits and Risks Summarised

The benefits of early expert involvement should be considered in view of both the Client’s objectives and the needs of the Solicitor in consideration of the Civil Procedure Rules.

From a Client’s perspective it is probably fair to say that a Client needs to know, as early as possible, the strengths and risks attached to any dispute. The Client will then be in a position to consider the impact of costs, resources and time in respect of its business as a whole and make appropriate commercial decisions.

Likewise a Solicitor needs to understand the strengths and risks especially if conditional fee arrangements are to be considered. Further, with early expert involvement a Solicitor, if appropriate, can avoid taking instructions on a poor case.

The advice of the expert may even be used to instigate necessary investigations and fact finding as to matters that the Solicitor may not be aware of.

The main risk surrounds cost recovery if an expert witness has been instructed without the permission of the Court. However the Solicitor should explain the risks surrounding costs recovery with the Client and balance that risk with the risk of blindly prosecuting its case without any idea whatsoever as to the likely outcome or strengths and risks attached to the dispute.