Guidelines for Expert Evidence

These Guidelines are intended to assist experts, parties and their legal advisers understand experts’ obligations and the Tribunal’s expectations in relation to the preparation of reports, joint conferences of experts, and the hearing of concurrent evidence.

1.0 The Expert Report

1.1 The Tribunal wishes to ensure that experts understand their responsibilities and obligations and that a common approach to the preparation of reports is adopted and followed.

1.2 It is important when preparing expert reports that there is a clear distinction between incomplete and defective work.

1.3 Each item identified as being incomplete or defective must be numbered using consecutive numbering and its location on the subject property clearly referenced.

1.4 The report should clearly state the reasons for recommending rectification, demolition or other remedies and should indicate whether any alternative remedy or remedies are reasonable.

1.5 The report should include the likely costs of each item of recommended completion or remedial work and the manner in which such costs have been calculated and the basis for the calculation of the costs.

1.6 Any photographs included in the report should be in colour and in focus. The expert should state who took the photo, where and when it was taken, and the purpose for including the photograph in the report.

1.7 Any plans forming part of a report that are intended to evidence any architectural or engineering detail or instruction thereon should be the same size and scale as the original document and clear, legible copies only should be included in the report.

1.8  Experts should not comment or report on legal questions of liability.

1.9 An expert witness who changes an opinion on a material matter on the basis of another expert’s report, or for any other reason, must communicate the change of opinion in writing to the party retaining the expert and such party must immediately file with the Arbitrator and each other party to the proceeding, notice of such change of opinion and the notice must specify the reason or reasons why the expert’s opinion has changed.

2.0 Joint Conference of Experts

2.1 To minimise the length and complexity of hearings, experts will generally be ordered to meet and confer with other experts for the purpose of trying to reach agreement on matters within the field of expertise of the experts and for preparing a joint statement in the form of a Scott Schedule stating the matters on which the experts agree, and the matters on which they do not agree, and the reasons for their disagreement.

2.2 The expert retained by the party alleging defective or incomplete work should prepare a draft Schedule in preparation for the joint conference of experts providing columns for: a reference number for each item of identified incomplete or defective work; a description of the item and its location; each expert’s comments and estimates of the cost of completion or rectification; and a column for the Arbitrator to make notes and comments.

2.3 The expert preparing the draft Schedule should complete the columns listing the items, a description and the location of each item and that expert’s comments and estimates. A copy of the draft Schedule should be served on all parties and each party should ensure that their expert has a copy of the draft Schedule not less than 3 working days before the joint conference.

2.4 Where there are a large number of allegedly incomplete and/or defective works, and/or the issues in dispute are technically complex, the Arbitrator may direct, either on the Arbitrator’s own initiative or at the request of the parties, that the joint conference of experts be chaired by an independent expert. The independent expert will act as a facilitator for that conference and may not give evidence at the hearing unless the parties agree. The Arbitrator may give any directions for convening and conducting the conference the Arbitrator thinks fit.

2.5 The joint conference of experts may be conducted on site or at any other venue that the parties may agree, or in the absence of agreement, at any venue directed by the Arbitrator.

2.6 The matters discussed between the experts at the conference will remain confidential to those experts and must not be referred to at the hearing unless the parties by whom the experts have been engaged agree. However, the joint statement including any agreed scope of completion and or rectification work will be open.

2.7 The joint statement must be signed by the experts at the end of the conference and filed with the Arbitrator and every other party within 2 working days thereafter by the party whose expert prepared the draft Schedule.

2.8 The parties and/or their legal or lay representatives may not attend the joint conference of experts and they cannot review a copy of the joint statement before it is completed and signed by the experts.

3.0 The Joint Statement

3.1 It is expected that in preparing the joint report, the experts will confer and genuinely endeavour to reach agreement on any matters at issue within their field of expertise, to narrow any points in difference between them and to identify any remaining points in difference. As part of that process, the experts may agree a scope of works for further testing and monitoring of the subject property to allow better and more informed identification of the nature and cause of any defect and the proper rectification work required, together with a timetable for the carrying out of such testing and monitoring.

3.2 Whilst experts are free to disagree, such disagreement must come from the free exercise of their own independent, professional judgment. Experts must not be influenced by, or act upon, any instruction or request to withhold or avoid agreement except upon instruction.

3.3 In the context of a joint conference of experts it is likely that there will be a fuller revelation of the relevant facts and the preparation of the joint statement is intended to allow experts to reconsider and revise their opinions where appropriate in a professional and non-confrontational environment if new evidence and relevant material becomes available.

3.4 A joint statement must:

  • Identify the areas of agreement and disagreement with reasons for any disagreement.
  • Include an agreed scope and method of completion and or rectification and the cost of that work where there are allegations of incomplete and/or defective work, and where the experts are unable to agree, their respective recommendations.
  • Include any alternative recommendations.
  • Where there is disagreement as to the proper remedy, the experts should attempt to agree the cost of any proposed completion and or rectification work as if the Arbitrator had determined that such work was the proper remedy in the circumstances.
  • Be signed by all experts who participated in the joint meeting of experts before it is filed with the Arbitrator and the parties.

4.0 Concurrent Expert Evidence

4.1 It should be expected that all expert evidence will be heard concurrently unless there is a single expert appointed or the Arbitrator directs that expert evidence is to be given in an alternate manner. The process enables experts to express opinions they have on a particular subject in their own words and to answer questions from the Arbitrator, the parties’ advocates, and from their professional colleagues.

4.2 Subject to the discretion of the Arbitrator, the hearing of concurrent evidence will generally proceed on the following basis:

  • The experts will be sworn in at the same time.
  • The joint statement (the Scott Schedule) will form the basis of the concurrent evidence.
  • The Arbitrator will identify with the help of the parties’ advocates, and in the presence of the experts, the topics which require discussion in order to resolve the outstanding issues.
  • The Arbitrator will then ask each expert to briefly summarise the expert’s position on the first issue.
  • General discussion on the issue will follow during which the experts can ask each other questions and discuss issues.
  • The Arbitrator may ask questions of any of the experts and the parties’ advocates will be invited to ask any questions of their own or any other witness.
  • Each item of allegedly incomplete or defective work will be dealt with in turn.

An Authorised Nominating Authority
under section 65 of the Construction Contracts Act 2002