| Date | 12 May 1999 |
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| Judgment | Regina -v- Balfour Beatty Civil Engineering Ltd and Geoconsult GES, 15th February 1999 |
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| The Issue | Duties and responsibilities of expert witnesses in construction litigation. |
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| Implication |
Duties and responsibilities of expert witnesses reiterated in the context of the new Civil Procedure Rules implementing Lord Woolf's civil justice reform. |
printOn 26th April 1999 the process of civil litigation was changed beyond recognition when the new Civil Procedure Rules implementing Lord Woolf's reforms of civil justice took effect. Part 35 of the Civil Procedure Rules deals with experts and assessors and will be of critical importance to surveyors, architects and engineers who occasionally act as experts. The new rules emphasise the expert's overriding duty to the court and give guidance to the expert on the format and layout of his or her report. The rules reflect the fact that in complex, technical cases expert evidence can often be pivotal. Thus, for example, under the new rules a party may be entitled to put questions to an expert instructed by the opposing party in order to clarify the report. The expert's reply to those questions is treated as part of his evidence, and failure to reply may result in a refusal to admit the evidence of the expert and an inability to recover the fees and expenses of the expert concerned. Court instruction of a single expert is likely to become more commonplace, although this may present insurmountable difficulties to a client and its legal team on matters of case management. The rules deal with discussions between experts and give the court a discretion to order joint statements of experts, identifying matters agreed and matters in disagreement. This is a practice which has been routinely followed in construction litigation for many years. A practice direction which accompanies the rules gives further guidance to the expert and includes a requirement for the expert to make a "statement of truth" in terms that the expert believes that the facts stated in his report are true and that the opinions expressed by him are correct. The new rules relating to experts are the culmination of many years concern by the judiciary upon the conduct and practice of expert witnesses. In National Justice Compania Naviera SA -v- Prudential Assurance Company Ltd (the Ikarian Reefer) in 1993, Mr Justice Cresswell set out the duties and responsibilities of expert witnesses in civil cases. The guidelines set down in that case have provided a foundation for the new Civil Procedure Rules with respect to experts. These guidelines were reiterated in the central criminal court on 15th February 1999 in the case of Regina-v-Balfour Beatty Civil Engineering Ltd and Geoconsult GES. The case concerned the collapse of tunnels at Heathrow airport in 1994. Balfour Beatty was the main contractor and Geoconsult were specialist tunnelling sub-consultants engaged for design and on-site technical support. Leading experts in the field of tunnelling were called to give evidence as to the cause and nature of the collapse. The expert instructed by the Crown prosecution came in for some particularly severe criticism. It appears that his report comprised extensive passages written not by himself but by an Inspector of the Health and Safety Executive. Particularly sensitive to the duties and obligations of expert witnesses, Mr Justice Cresswell was given the opportunity to restate the guidance he used six years ago in the Ikarian Reefer. Quoting from the fifth edition of the Commercial Court guide shortly to be published the judge stated: (1) It is the duty of the expert to help the court on matters within his expertise. This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid. (2) Expert evidence presented to the court should be seen to be the independent produce of the expert, uninfluenced by the exigencies of litigation. (3) An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of an advocate. (4) An expert witness should not omit to consider material facts which could detract from his concluded opinion. (5) An expert witness should make it clear when a particular question or issue falls outside his expertise. (6) If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. (7) In a case when an expert who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report. (8) If after exchange of reports an expert witness changes his view on a material matter having read another expert's report, or for any other reason, such change of view should be communicated in writing through legal representatives to the other side without delay and when appropriate to the court.
CJ-9919
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