| Date | 20 January 1999 |
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| Judgment | London Underground Limited-v-Kenchington Ford Plc, TCC 5 November 1998 |
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| The Issue | The role of the expert witness in complex construction disputes. |
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| Implication |
Courts will increasingly reject expert evidence which lacks fairness and objectivity. |
printThe case of London Underground Limited-v-Kenchington Ford plc has received a considerable amount of attention in the construction press. Kenchington Ford was engaged by LUL for civil engineering and architectural design relating to the Jubilee Line extension at Canning Town station. LUL claimed inefficient over-design of the station concourse slab and also sought reimbursement of moneys which had been paid to the main contractor in respect of delays and disruption arising from alleged short-comings in the detailed design work. The claims were in part thrown out and in a complex and lengthy judgment one can see the crucial importance of expert witnesses in cases of this type. Broadly the first claim related to the design of the concourse slab which forms the base of a three storey structure supporting the Jubilee Line and the Docklands Light Railway and provides pedestrian access to the platforms. LUL complained that the slab was over designed and that a reasonably competent engineer would have designed a thinner and thereby cheaper slab. It further alleged that Kenchington Ford failed to provide cost comparisons of various types of slab for LUL to consider. Kenchington responded that the development of the slab design was undertaken in close conjunction with LUL and in accordance with its independently informed professional preferences, particularly bearing in mind the requirement that the design of the sub-structure should have a 400 year life. These issues came before his Honour Judge Wilcox QC in the Technology and Construction Court. Judge Wilcox noted that by paragraph 3.5.2 of the Conditions of Engagement, Kenchington were engaged as technical contractors and were expressly required to exercise all reasonable professional skill, care and diligence in the performance of the contract and to take full responsibility for the design work included in the contract. The designs were required to be in accordance with the appropriate British Standards and design lives for loadings and safety were stated in the Engagement. Judge Wilcox considered that it was not surprising that an extremely conservative approach was dictated by these contractual requirements for a prestigious structure of this sort to be operated by a public body far into the future. The resolution of this dispute would however closely hinge upon the expert evidence brought on behalf of each party. Judge Wilcox was unimpressed by the expert evidence produced on behalf of London Underground. The engineering expert had carried out a design which resulted in a thinner slab but it was clear that this design did not take into account all the parameters for design which had faced Kenchington, including site conditions and ease of construction. Worse, LUL's engineering expert appeared more concerned to assume the role of advocate of his client's case rather than to demonstrate fairness and objectivity and a proper awareness of the role of the expert witness. Judge Wilcox noted that the test to be applied in this case as to the allegations of professional negligence was that settled in the case of Bolam-v-Friern Hospital Management Committee. On the basis of the evidence Judge Wilcox concluded that negligence had not been established. A second element of LUL's claim concerned the quality of the detailing work of the reinforcement of the main station box. Judge Wilcox was critical of the manner in which this claim was presented. In the manner of pointing a blunderbuss at a target, he commented, LUL were maintaining that there were many requests for information and there was considerable delay. By reason of the volume of requests, negligence must be concluded. Expert evidence was also to be adduced in respect of this part of the claim. Once again the experts acting on behalf of LUL came in for severe criticism from Judge Wilcox. The engineering expert's curious approach was not to examine the fundamental basis for the requests for information, but instead to take the weight of reinforcement steel at the beginning of the project, compare this with the weight at the end of the project, and conclude that if there was more than a 10% increase this would be as a result of negligence. The fact that the expert had failed to address his mind to the requests for information relied upon in the pleaded case might have caused considerable difficulty. However, there were other aspects of this approach which were far more questionable. The 10% figure was something arbitrarily plucked out of the air by the expert. Furthermore, his calculations he had failed to take into account all of the reasons by which an increase in reinforcing weight might justifiably occur, such as, for example, proper variations of the contract. In conclusion this expert evidence was condemned as being invalid and unscientific. Accordingly, there was no evidence that Kenchington had departed from the standard of the competent and conscientious consultant engineer in the discharge of its obligations in relation to the reinforcement drawings and detailing. This case adds to a growing list of cases from the Technology and Construction Court where the role and performance of the expert witness has been severely criticised. It seems there is a growing need for clients and their legal teams to be particularly vigilant in case management to ensure that experts meet exacting standards of objectivity, independence and fairness in fulfilling their role.
CJ-9903
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