Party Appointed Experts
Most commonly, in construction dispute proceedings under English Law, the parties in dispute each appoint their own experts. Experts hold themselves out to have special skills or expertise in certain areas, and have a duty of care to their clients for the advice they give in those areas.
Balanced Expert Advice
In a building dispute, the expert will usually give advice before proceedings commence – advice which may be relied upon in deciding whether or not to proceed with legal action. If the advice is negligent, it may result in a hopeless case being taken to trial or a good case being needlessly abandoned. The former will waste the court’s time and both defendant’s and claimant’s money. The latter may delay or stop potential claimants from recovering the damages to which, at law, they are entitled. False encouragement, which leads to a hopeless claim being pursued, is more likely to come to light than is overly discouraging opinion. Pessimism, however, is unlikely to secure a commission and it is the expert with a positive view of the strength of a prospective client’s case who is likely to be appointed.
In substantial cases barristers often like to test the experts before the hearing. Indeed, counsels’ ‘friendly’ cross-examinations of their own experts in chambers can be the most penetrating. By contrast, the ‘hostile’ cross-examination in court is often less incisive as the advocate, lacking the expert’s detailed knowledge of the matters the expert has addressed, is often at a disadvantage.
If litigants discover their experts to have been negligent, they may seek compensation from the experts. The once traditional immunity from civil proceedings for a witness’s actions in court does not impart immunity to the witnesses for their actions prior to the trial. Immunity for experts while testifying in court has been successfully challenged in English courts.
Experts usually obtain employment by claiming extensive knowledge and/or experience in a particular field. In taking on a commission, an expert owes the client a duty of care. This is similar to the duty of care an architect, engineer or other building professional, carrying out their normal work, owes to their clients.
With due regard for professional liability, it is wise – whether formally engaged as an expert, or casually consulted by a potential client – to ensure that any advice given is limited to the area of true expertise and that, where appropriate, the limits of the reliance which may be placed on it are clearly stated.