In our latest construction contract clinic, Bill Bordill explains the risks of using an expert consultant as an expert witness in a formal dispute.
The question
Can we use the same consultant who advised us on a contractual risk as an expert witness in a formal dispute?
The answer
There are a variety of reasons for appointing a consultant. This includes reputation in the market, specialist knowledge or simply familiarity. Here, it appears you are initially seeking an expert to advise on the merits of their case and which strategy to adopt. But you expect the dispute may later need a formal resolution procedure to resolve it.
At that stage, you will likely need an expert witness to provide an independent expert opinion to the court or tribunal. This is also known as a ‘Part 35 expert’. The civil procedure rules (CPR 35.2(1)) clarify that an expert is “…a person who has been instructed to give or prepare expert evidence for the purpose of proceedings”. Note that a Part 35 expert must be an individual and cannot be a consultancy.
Lay people can act as a witness to a fact – that they saw or heard something. But they cannot give opinion evidence in a court. Only expert witnesses with specialist knowledge, recognised qualifications or experience in a particular field are permitted to give opinion evidence about facts and matters within their field of expertise.
The role of the Part 35 expert is to assist the court in understanding technical matters. Experts do this by providing expert opinion evidence.
Returning to the original question, can an advisory expert later become the Part 35 expert? The answer is yes, although this is not without considerable risks and challenges.
This is an excerpt from Construction Management Magazine’s Contract Clinic, written by Bill Bordill, a Director at Decipher Group. You can click here to read Bill’s full response.
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