Case Studies

Are Expert Witnesses’ Joint Statements Privileged?

posted 18 Jan 2017, 11:12 by Robert Evans   [ updated 25 Mar 2020, 10:50 ]

In ruling whether a memorandum of agreement between expert witnesses should be disclosed, an adjudicator rehearsed the meaning of legal professional privilege as follows:

Legal professional privilege is a right to maintain confidences between parties.  When a document is protected by privilege, it means that it does not need to be disclosed.  In the context of litigation and retaining expert witnesses, privilege will apply to confidential oral or written communications between the client and his legal advisers and the expert for the dominant purpose of obtaining or receiving advice for the purpose of existing or anticipated legal proceedings.  ‘Dominant’ in this context means the ruling or prevailing purpose.  The purpose or intended use for which a document is brought into existence will be a question of fact.”

Before adjudicating each party appointed an expert witness on building defects.  Each expert witness separately inspected the building and each produced an expert witness report on the alleged building defects.  The expert witnesses’ reports differed in the opinions given.  Both experts were instructed to jointly inspect on a without prejudice basis and to endeavour to agree a joint statement of matters agreed / not agreed with reasons for disagreement.  Accordingly, the expert witnesses jointly inspected the alleged building defects.  They were substantially in agreement and recorded this in a joint statement. 

All communication between the expert witnesses leading to their joint statement was headed ‘without prejudice’ and was not submitted to the adjudicator.   The joint statement was not headed ‘without prejudiced’, was openly signed by both expert witnesses and submitted by one party to the adjudicator.

The other party contended that, as its expert was instructed to communicate with the other expert on a without prejudice basis, the joint statement was privileged and ought not be considered by the adjudicator.  The adjudicator concluded that all communications with and/or generated by this party’s expert should remain privileged and exempt from disclosure. 

In summary:

1.       The joint statement gave the experts’ agreed views on the alleged building defects.

2.       In doing so it superseded the individual experts’ reports. 

3.       It was not drafted as advice to either party.

4.       Its dominant purpose was to narrow the issues in dispute to the benefit of both parties.

5.       If accepted into evidence it would have assisted the adjudicator.

6.       Reference to it in the adjudication would have clarified the building defects issues    helping achieve a just and swift outcome.

I have often heard it said that adjudication is rough justice.  It is difficult to see how justice, no matter how rough, could be served by supressing part of the expert evidence at the behest of one of the parties to the dispute.  Without prejudiced exchanges between expert witnesses are vital to forging agreements but this is worthless if the agreements so forged, once finalised and signed, remain privileged.

Spanish Building Defects

posted 3 Sep 2012, 08:28 by robert evans   [ updated 4 Dec 2012, 10:49 ]

A residents’ committee who represented the occupants of 22 high-rise blocks of shared-ownership, ‘low-cost’ housing built on land reclaimed from the Mediterranean, looked to expertese to help them resolve problems in their new flats.

Concern over the building’s performance started when it began to disrobe. At first it flung pieces of the clay lattice balcony screens from the 10 to 12 story towers onto the walkways and gardens on the podium deck. These were later joined by brick slips springing loose from floor edges. Lower down, parts of the soffit of the podium deck began falling onto the residents’ parked cars. During the first severe winter, rain entered both flats and garages.
The residents’ had relied on locally-commissioned reports only to be met with inaction and suggestions of political bias. Undaunted, they sought further professional support from those with a solid reputation for objectivity and dispute resolution.  

The developer was pressed to help and an action was brought against the Spanish Contractor under the design and build contract.
An  arbitrator was appointed and visited the site. Experts for both sides carried out joint inspections and prepared evidence. The lists of defects grew steadily. Simultaneously, legal challenges were heard in Spanish and English courts. Eventually, by consensus, the arbitration was stopped and proceedings transferred to the Technology and Construction Court in London.

Through a series of experts' meeting the extent and nature of the defects was agreed and a substantial out of court settlement was obtained providing compensation for both the legal and the repair costs.

I was then approached by both the main contractor and one of his sub-contractors for assistance in the action between them. I accepted a commission for the main contractor who swiftly obtained an out of court settlement.
Simultaneously with the preparation of expert evidence, the technical merit and lifetime cost of seven repair strategies were evealuated. The remedy selected involved, amongst other work, improving the tensile strength and restraint of the walls whilst reducing their exposure to sun and rain. Additionally some hundreds of other defects were addressed.  A remedial contract was devised which allowed the building to remain occupied throughout.

The major flaws in weather integrity, stability, health and safety have been resolved. Although faults in the building remain, local good opinion of this achievement is reflected in the market value of the flats.
The failure in the building, which resulted in massive repair costs and legal disputes, arose, to a large extent, from a lack of communication and understanding. The quality of the work and the consistency of the poor detailing indicated a lack of familiarity with the techniques appropriate to a building designed in the UK tradition rather than any fundamental lack of ability.

Displaced Cladding

posted 3 Sep 2012, 08:17 by robert evans   [ updated 20 Sep 2012, 02:18 ]

A cladding system designed to accommodate differential movements between an aluminium frame and metal-faced insulation-cored cladding panels experienced gradual displacement of building components as the gaskets snaked their way along the grooves between shuffling panels.
The panels, being small, elongated less on heating than the relatively long frame sections. The connection between the two was a combination of shelf brackets and clamps, with polymer gaskets inserted tightly into grooves between the panels to complete the weather-sealing. Long continuous gaskets ran horizontally; vertical gaskets were shorter, and discontinuous at each horizontal joint.
When the system heated up and expanded, the panels and vertical gaskets tended to move upwards. When it cooled, the panels and gaskets contracted but did not uniformly return to their original positions. The consequence was a gradual displacement of parts of the system relative to one another. This opened gaps at the butt joints between horizontal and vertical gaskets and, in places, drove the vertical gaskets into the horizontal gaskets, deforming them. Those panels on the elevations which received most sunshine moved progressively out of alignment.
The design was intended, by avoidance of rigid fixings, to allow reciprocal movements without distress. But this lack of rigidity allowed each reciprocal movement to cause slight relative displacements in the panels and gaskets, the accumulation of which over time reduced weather resistance and marred appearance.

Lead Roof Corrosion

posted 3 Sep 2012, 08:12 by robert evans   [ updated 25 Mar 2020, 10:20 by Robert Evans ]

A recent investigation revealed an oversight in roof design. The construction under investigation had wide lead gutters behind masonry parapets. These gutter formed part of the roof and are in effect cold decks over thick thermal insulation. Other parts of the roof were provided with interstitial ventilation following current guidance. The gutters were not.

The natural durability of lead under normal conditions is due to the formation of protective insoluble salts which are formed on the surface. Moisture and carbon dioxide in the atmosphere combine to form weak carbonic acid and this reacts with bright metallic lead during periods of rain or overnight dews to form the normal grey patina typical of lead roofs. This thin continuous surface layer protects the metallic lead from further attack. On the underside of lead sheets these protective layers may not form.

Most lead roofs are unaffected by underside corrosion or contain only a small amount of corrosion products, possibly as a result of damp conditions when the roof was laid. However, some roofs have been subject to severe underside corrosion as a result of on-going damp conditions, the presence of carboxylic (acetic and formic) acids given out by acid-containing substrates. The major corrosion product is the white hydrocerussite or white lead (2PbCO3.Pb(OH)2). However, in the presence of carboxylic acids, the red and yellow lead oxides of Massicot and Litharge may be formed.
Underside corrosion of lead requires the presence of moisture and an absence of carbon dioxide. The accumulation of condensate which is depleted of carbon dioxide creates a risk of underside corrosion.
When a thin film of moisture condenses on the underside surface, this becomes rich in oxygen and carbon dioxide. This forms the protective grey hydrocerussite patina, similar to that formed on the topside of lead by normal weathering.
When thick films or droplets of condensation form on the underside surface, these are unable to absorb sufficient carbon dioxide to form a stable passive coating. Instead, the intermediate lead hydroxide forms on the metal surface and this migrates to the outside of the droplet where it eventually reacts with carbon dioxide to form the hydrocerussite. Because this has formed on the outside of the droplet (as compared to the metal surface) it is loose and non-protective and this allows further corrosion to occur during the next condensation period.

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