E is for Expert

Posted on Posted in A-Z of Construction Law

What is an expert?

Wikipedia tells us that in Babylonia, midwives would identify whether women were fertile or not. Arguably the earliest type of formal expert. Things have moved on a little since those days. Being an expert can be quite a lucrative profession, but as we learnt on an SCL course a few years ago, there are many different types…

In tribunals and dispute hearings, often evidence of fact is heard from those involved in a project or issue. But ‘witnesses of fact’ cannot give opinions. In contrast, an expert witness is appointed to opine, often on the cause of a problem or matter in a dispute.

So what are the different types?

Party Appointed. Often found in common law jurisdictions (generally those of commonwealth or ex British colonial countries). This is probably the most common type of expert. Each party in a dispute appoints an expert. The expert must be impartial and independent, but takes instructions from one side or another in a dispute.

Joint Experts. Less common, these are appointed by a tribunal and give evidence on the matters in the dispute.

Experts in ‘Civil Code‘ jurisdictions. At one of the most interesting events the SCL have organised in the past twenty years, a comparison of civil and common law experts was made. The continental European contingent were bewildered by the common law concept of experts. The risk of the ‘hired gun‘ seemed all too obvious to them.  In civil code jurisdictions, experts are appointed by and are members of the tribunal. They assist the judge in an inquisitorial process, rather than working for opposing sides as part of an adversarial process.

The Ikarian Reefer. A case which comes up in almost every talk on experts, so deserves mention – the case included the setting out of seven key principles which experts need to observe if they are to be regarded as professional impartial experts when giving evidence.