Bring the house to order

As concern grows about the time and money involved in resolving a dispute by litigation, the role of the expert witness is coming under close scrutiny.

This is particularly true of disputes relating to construction work where cases routinely take five or six years to get to court, and legal costs become a major factor in arriving at a settlement (or being unable to do so) as they approach or overtake the amount originally in dispute.

There now seem to be two major and contrary reactions to the problem of the cost of litigation. One is to curtail the involvement of expert witnesses, perhaps going so far as to make all experts court-appointed.

This is accompanied by criticisms about too many experts' apparent weakness in the face of a temptation to be partisan, about the apparently aimless scope of many experts' reports, and even about the reports' length.

The opposite move is to place greater reliance on experts, and to seek to curtail the involvement of lawyers. This is evidenced by the growth in conciliation, expert determination and alternative dispute resolution, and phenomena such as the establishment of the Institute of Commercial Litigators.

Of course, radical change is always more dynamic in impact, or at least the publicity given to it, but gradual change that builds on the strength of an existing system is usually more productive in its effect. It is, therefore, to be hoped that all of those called to represent the interests of clients involved in a dispute will see beyond market opportunity to the need to create a service that meets the real needs of those clients.

I still believe the building blocks of such a service lie in a combination of the law, and its body of practice, process and precedent, and professional or technical expertise. This will only work, however, if everybody sees their first duty as being to illuminate or eliminate dispute rather than escalate it.

There is perhaps no area of dispute that offers so much scope for broadening or narrowing the issues as construction law. This is because much of it is not law at all but the argument of facts or events and their consequences, practical or financial. And of all construction work disputes, those for which a focused approach to cause and effect is most required are delay and disruption claims. However, this is also the area in which the issues tend to become lost in a blizzard of paper, loaded questions and evasive answers.

The settlement of claims for loss and expense is the business of quantity surveyors and the fact the surveyors acting for contractor and client have failed to reach agreement does not change the processes by which an answer is found.

It is astonishing, therefore, to find how often matters advance through the stages of the pleadings without the information necessary to settle the dispute coming forward. Experts acting for both sides then find the major part of their task is to marshall, for the first time, the information and argument which the parties have been unwilling or unable to produce earlier. This is an enormously costly way of proceeding, and although the prospect of imminent court proceedings may help to concentrate the mind it is absurd that the full arguments might first be heard on the day of the hearing, with the meter now running at peak rate.

At the end of the day (and too often only at the end of the day), the outcome of the dispute is intended to be a ruling on the quantum of damages payable by one party to the other.

Although the amounts claimed will frequently be made up of a host of headings of loss or expense, there will usually be a limited number of key items which make up the proportion of the total.

By concentrating on these items early in the dispute, and on the facts and arguments which will establish whether or not they are due, a focus can be brought to the pleadings, to witness statements and to experts' reports which at best may lead to early settlement and at least will contribute to case management and cost control.

Early consultation with a quantity surveying expert, who can look to the end of the case and see the issues which most demand attention should form a valuable part of this process. For both parties, such advice will be of the greatest value if it is sought before the service of pleadings and I think it is also helpful if the experts are permitted and encouraged to meet at the earliest possible moment.

This assumes, of course, that the experts are both inclined and permitted to act with integrity. In looking at The Lawyer's 1994 survey of solicitors on the appointment of experts, one cannot help but notice the equal emphasis placed upon finding experts who will act impartially and agree with their client's case. Lawyers who encounter difficulty finding an expert whose opinion does accord with their case might perhaps spend just a moment or two to consider whether it would not be better to find a case that follows the expert's opinion.

The alternative, of course, is to shop round and find somebody more malleable, but as Doctor Johnson would say “integrity without knowledge is weak and useless, but knowledge without integrity is dangerous and dreadful”.

Paul Morrell is a partner at chartered quantity surveyors Davis Langdon & Everest.