When did you first get involved in Expert Witness work, and what is your experience since?

My first experience was almost immediately after becoming a Claims Consultant. Having joined the company in the UK in November 1999, I was seconded to the Hong Kong office in February 2000 to provide short-term assistance in the preparation of an Expert Report for the government.  In late 2002 I was seconded back to Hong Kong to assist on Phase 1 of another Expert Report for the government on a dispute which had been referred to mediation, and when I returned in March 2003 for Phase 2 of the report, I made my stay permanent.

Since then, I have acted as Assistant to both Quantum and Planning Experts on a number of disputes on government projects settled through mediation. I also acted as Assistant Mediator in the successful settlement of a disputed Final Account in the UK before locating to Hong Kong. This was the ultimate ‘independent’ assignment since both the Contractor and the Employer were major clients of ours.

In addition to assisting on Expert Reports for formal dispute resolution, I have also prepared a number of independent reports for clients setting out the respective strengths and weaknesses of their positions.

 

When was your first appointment as an Expert?

It commenced in mid to late 2016 and, like my entry into the construction industry, it wasn’t exactly planned. Rather, it morphed into an Expert role from an existing standard consultancy assignment.

I’d been appointed by a client to advise them on what I considered to be the correct valuation of a Variation Account submitted by the Contractor as part of a disputed Final Account on one of their projects. There were a number of other issues in dispute and an initial notice of arbitration had already been issued by the Contractor, but I was only involved in advising my client, who was the Employer under the Contract, on the specific matter of the Variations. My role was purely to advise my client and there was no advocacy element to any of my involvement.

In the event, the parties resolved to settle the whole dispute by way of the arbitration that had been initiated and I was requested to act as the Quantum Expert appointed on behalf of the Employer as Respondent to the proceedings.

The Respondent’s legal team and I were obviously mindful that it was essential there was no hint of conflict or bias in my appointment, so we were very careful to ensure that all initial work undertaken by my team and I was conducted in a transparent, independent and non-advocational manner.

In the event, I don’t believe that anybody objected to my appointment and it certainly wasn’t raised at the Hearing.  

 

Was there any reason why you hadn’t pursued the opportunity sooner?

To be honest, for many years it was something that I didn’t really relish doing.

With the Expert work I assisted on for the government mediations, the independent reports were purely for internal purposes and were not exchanged with the other party. However, we rigidly stuck to the independent nature of the assignment, even if the instructing department disagreed with our assessments. As such, there was no interrogation of the report or cross-examination of the Expert by the other side, which was something I preferred given the tales of Experts’ meltdown in the witness box that abound.

I always found the independent report side of my work more rewarding than straightforward claims preparation/rebuttal since it forces you to be more objective than simply following the party line. However, the bulk of my work was on the claims preparation side of the industry. In this respect, I felt more comfortable just producing the document with the other side trying to discredit it rather than trying to discredit me personally.

However, and I have to be careful what I say here, I became somewhat frustrated with the standard approach of “claim all”/“deny all” that pervades all aspects of the Hong Kong construction industry and felt I needed more of a challenge, both intellectually and professionally. I am therefore eternally grateful to the instructing solicitor who gave me the opportunity to take my first steps in the Expert arena.

As with Arbitrators, Experts fall foul of the “Catch 22” scenario when it comes to appointments:

Client: What experience do you have?

Expert: At the moment I don’t have any first-hand experience, I’m hoping this will be my first opportunity.

Client: We prefer to appoint somebody with experience.

Expert: If you don’t appoint me on that basis, how will I ever get any experience?

Having had the opportunity to undertake my first Expert assignment I can now add experience in preparing an Expert Report, a Supplemental Report, and being cross-examined at the Hearing to my CV and I feel confident in my ability to take on further assignments.

 

You don’t have a degree. Do you see this as a drawback to future development in the field of an Expert?

This leads largely on from a couple of the previous questions and was something I mentioned in an earlier article.

As I mentioned at the start, I’d had enough of full-time education by the time I’d finished my A-Levels and the thought of going to university never entered my mind. Once I’d chosen the route of becoming a QS it was immediately obvious that I would need to become professionally qualified, but a day-release course at the local technical college was the standard approach for this.

As a contractor’s QS I initially enrolled on the Institute of Quantity Surveyors course and successfully passed the Part I and Part II exams. Then the IQS and the RICS amalgamated so for the Final exam I sat the RICS version eventually leading to professional membership of the RICS. I also successfully passed the Part II exams to become a Member of the Chartered Institute of Arbitrators. As far as I’m concerned, these qualifications plus my practical experience gained in tandem are equivalent to a degree in Quantity Surveying. I believe that this is also a generally held view throughout the industry so I think I tick the box on that particular aspect.

When I first started looking for opportunities in the consultancy side of the industry, it was definitely a disadvantage because every position that was advertised required a degree qualification, usually in law. However, in August 1999 I successfully responded to an advert for “senior staff from a commercial background who have hands-on experience in preparing documentation for negotiation, mediation, adjudication or formal proceedings” and, as they say – the rest is history.

Given that the primary role of a Quantum Expert is limited to determining quantum rather than liability, I don’t feel that the lack of a law degree is critical, given both the knowledge I have gained through my professional studies and also my practical experiences.

 

What, in your opinion, are the key attributes required for a good Expert?

Never forget that the overriding duty of an Expert is to advise the tribunal and your client will obviously want the tribunal to be guided by you rather than the opposition’s Expert. In my opinion, the overriding attribute for an Expert is credibility. This is generally derived from fulfilling a number of essential criteria including:

•    Confidence

•    Consistency

•    Attention to Detail

•    Conviction

•    Trustworthiness

•    Experience

•    Effective Communication

•    Dedication

•    Ability to Improvise

•    Charisma

 

What are the pitfalls to guard against?

Lesson number one – stick to your field of expertise. One of my most vivid memories of the very first Expert Witness course I attended some 20 years ago was an example given by the speaker who was the leading equine expert in the UK at the time and who was appointed on virtually every case involving horses. It went something like this:

Opposing Counsel: Why do you think the horse bolted?

Expert: It was frightened by the barking of the dog owned by the Respondent.

Opposing Counsel: But the dog only barked once initially.

Expert: Yes, but when the horse got frightened by the dog barking it approached the dog and this caused the dog to get agitated and bark even more.

Opposing Counsel: But you’re an expert in horses. How can you possibly know what was going through the mind of the dog?

Lesson number two – maintain your independence and never attempt to advocate your client’s position.

Lesson number three – retain an open mind. If the opposing team put forward facts that contradict your position, don’t undermine your credibility by trying to defend the indefensible – and never argue with opposing counsel.

Lesson number four – ensure that you receive a clear brief from your instructing solicitor and that you stick rigidly to that brief (ensuring there are no instructions to act in an advocational capacity).

Lesson number five – tell the truth at all times and if you don’t know the answer, admit it.

Lesson number six – know your report. You’re not allowed to take notes or an annotated copy of your report with you when giving evidence so you need to know your way around it without getting confused.

 

What would be your advice to any budding Experts who are interested in pursuing this aspect of the industry?

 Simple – if you fancy a challenge, go for it.

 

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