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In doing so it superseded the individual experts’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. |
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. .png) 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.
.png) 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. .png) The major flaws in weather integrity , sta bil ity , 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.
|
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. |
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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