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The importance of finding the right sort of expertise for court

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legal matters

Experts are brought in when things go wrong. They investigate, assess the scope of the problem and advise as to what needs to be done to put it right. This is seldom the end of the story, however, because once the cause of the problem has been determined, there tends to be some debate about who is responsible and how much they should pay towards rectification costs.

This debate usually results in some litigation and the trouble-shooting expert is required to give evidence at the trial. Furthermore, if the defendant is a professional, such as an architect or engineer, the expert is needed to explain to the court how this particular professional has fallen below the standard to be reasonably expected of that profession in general.

Problems have occurred from time to time when the trouble-shooting expert turns out to be of a different discipline from the professional at whom the finger is pointed. If, for example, during the refurbishment of a country house, extensive defects are uncovered, the architect for the project can give comprehensive evidence as to the nature of the defects and necessary remedial works. Can this architect say, however, that these defects ought to have been spotted by the surveyor who carried out a full structural survey when the property was purchased? Structural problems are usually investigated by structural engineers. Can they say whether the damage is caused by shortcomings in the design of a negligent architect? It is easy to see how some complaining parties find themselves at trial, armed with a report from an expert of the wrong discipline. In those circumstances, counsel for team with the wrong expert spends the first half hour of the expert's evidence trying to establish that although he is a architect he has done a lot of work analogous to condition surveys and knows a fair bit about valuation and so on. These attempts are usually futile since, repeatedly, the courts have held that they should not find a professionally qualified person guilty of breach of professional duties without evidence from those within the same profession.

This relatively straightforward position has been complicated by the modern phenomenon of the multi-discipline practice. The attraction of such practices is that they offer a comprehensive project management service, obviating the need to enquire as to the individual qualifications and experience of the firm's personnel. As a project develops, the initial contact within the firm can call upon the expertise as required. What happens when the client has doubts as to the quality of the multi-discipline service that has been provided: what kind of expert do they turn to?

The starting point may be to find a consultancy which offers similar services to those under scrutiny. But care should be exercised. Expert evidence is prepared with the ultimate objective of the expert giving that evidence in court. The various members of a multi-discipline consultancy can combine their talents to prepare a report jointly, whether by bolting together their individual contributions or by collaborating over the content. When it comes to trial, however, they cannot all squeeze into the witness box, hold hands and give their evidence in concert. Alternatively if a lead professional is selected to give the evidence with reference to supporting contributions, the choice of leader requires some thought. If the crux of the problem was the condition of the building, should the lead be taken by the sort of expert who ought to have carried out a survey or by the sort of expert who actually did the work? Similarly, if there were doubts as to the structural condition of the building, a structural engineer can explain what he would have done, had he been asked. This evidence will not be sufficient to condemn an architect for not consulting an engineer in the first place.

The new Civil Procedure Rules are aimed at reducing expert evidence but without guidance as to how to deal with claims against multi-discipline firms there are likely to be more cases involving the wrong expert.

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