The cognoscenti within the South East Branch of the CIArb (of whom there are many) will be aware of the impact of the Woolf Reforms and the introduction of the Civil Procedure Rules and the Pre-action Protocols existing thereunder. No longer is the expert witness accountable only to his paymaster (perhaps he never was) but directly owes a duty to the Court or other tribunal.

Criticism has abounded in the past of experts who effectively act as advocates for their clients’? best case. No longer will this be tolerated.

That being the background to the meeting, it was unsurprising that there was a very welcome full house of branch members and guests gathered to hear a joint presentation given by Martin Moorhead and David Kyte.

Martin addressed us as a chartered civil engineer and chartered arbitrator, providing a perspective of the expert witness from the viewpoint of the tribunal. As an arbitrator, he viewed the expert as his friend; he is there to assist the arbitrator to unravel the technical aspects of the case. He explained the new CPR Rules, particularly section 35 dealing with Experts and Assessors. He made reference to the courts’ power to direct that evidence is to be given by a single joint expert (section 35.7), which has regard to the duty of proportionality. He doubted, however, whether cost savings could be achieved by the use of a single joint expert since, in order to develop their respective cases, experts would have to have been appointed by the parties in any event at a prior stage in the proceedings. His view was that the Court-Appointed Expert ‘is more wrapping paper than content’. He thought there was an argument for establishing a body of ‘Accredited Experts’.

David Kyte then spoke to us as a practising expert in construction and engineering disputes. He took us through the appointment procedure and explained that often the appointment of an expert is made too late as the client seeks to save costs. If an expert is appointed early enough, he is able to form preliminary opinions at an early stage which might help narrow the issues and certainly give the client direction as how best to proceed.

He explained that instructions are normally received orally and are generally incomplete, which does create problems. He discussed relationships within the team and thought that this was an area where the greatest pressure can be applied to the expert, for example, by a client, from whom the possibility of further work might affect an expert’s objectivity.

Passing to the hearing, he considered ways in which an expert might withstand aggressive cross-examination from opposing counsel. He concluded that this is inevitably stressful, but is made simpler if the expert has maintained an impartial and independent stance, if the report is a true reflection of his own opinion and if he is able to highlight areas where the report is incomplete.

Both speakers told anecdotal stories based on their own experiences to illustrate the points they were making.

The evening concluded with a lively discussion and a high degree of audience participation.

reported by Peter J Solari