Expert evidence; independence; risks in the hot tub; danger of protecting others.
This case concerned allegations of professional negligence relating to the design of the amphitheatre at the Museum of Liverpool. In essence, there were multiple design failures by the architect which led to a series of ad hoc design changes during the work, and a finished product that needed significant remedial works.
What is significant about the present case for readers of TEDR are the following:
First, architect’s liability. Shortly before the trial the architect They prompted the judge to take the positive (but unusual) step of asking the parties what the court could do to facilitate a deal. One might have thought that indication, made as it was against the backdrop of admissions of liability made late in the day, would have been enough to prompt a deal – but apparently not;
The museum and the contractor both called factual witnesses to support their case, but the architect decided during the trial not to call its factual witnesses and withdrew their statements. Not surprisingly, the judge was not impressed by that tactic. It meant that he received little or no evidence from the individual architects involved with the project to either explain or justify their mistakes.
Not surprisingly given those things, the judge indicated in his judgment that he was “very surprised” the case had not settled and he was “disappointed” that such was the case. Quite how the case came on for trial in this kind of shape is not clear.
Also significant are the judge’s findings about the architect’s experts:
1. The expert, who had never given expert evidence before, had – extraordinarily – not been instructed to consider the most obvious question, namely: what could reasonably be expected of a reasonably competent architect in his client’s position? Unsurprisingly, the judge noted that this meant the expert had given “little coherent thought” to this key aspect of the case;
2. Remarkably – and with fatal consequences for whatever vestiges of credibility the expert might otherwise have retained – under cross-examination he admitted that he was “seeking to defend the indefensible for the [architect’s] benefit”. As the judge pointed out, “one would simply never expect a competent expert who was aware of his duties to the court” to make such a statement (which seems, if anything, rather understating things).
Perhaps unsurprisingly, the judge therefore disregarded all of the evidence of the architect’s architectural expert. He said the expert was “wholly unconvincing” about all aspects of liability.
There are a number of practice points here:
1. First, it’s been mentioned before but it’s worth repeating; understand the case, and understand what the issues are. All effective expert evidence is derived from performing those two basic tasks well. A report which is not based on a thorough understanding of the issues will miss the key points and will not be convincing. It is interesting to note what the judge said, by way of contrast, about the Museum’s expert, because it gives a good “shopping list” as to what the court looks for in an expert”
"Mr Roger Jowett … produced by far the best expert report … When giving evidence he came over as extremely thoughtful, serious and knowledgeable. He was able to explain himself in language that non-architects could understand. He had carefully analysed all the issues and gave the most comprehensive and credible evidence about not only the technicalities but also responsibility and the need or desirability for remedial works.”
2. If your instructions do not identify the issues you are being asked to report on, then you will need to speak to the legal team immediately;
3. Lack of experience can be fatal. This was obviously a technically complex case. The expert had never given evidence before. Bluntly, a 3-week TCC trial was not a case to cut your teeth on. The expert was out of his depth, both in writing his report and in giving evidence (indeed, the lack of preparation at the report stage probably caused the expert to panic in the box – hence his admission that he saw his role as “defending the indefensible”).
Equally interesting is the judge’s comments on the architect’s structural engineering expert. Although he found that this expert was credible and independent, he also noted in what appears to have been a multiple-expert “hot tubbing” session that this expert:
“He was too willing and too quick to try to explain away or qualify answers given by [the architectural expert], sitting beside him; it was almost as if he was trying to protect [that expert] when [he] apparently made concessions against AEW’s interests. I wrote down in my notebook towards the end of his evidence that he had adopted a “firefighting” approach to seek to circumvent or soften what [the architectural expert] had said. Certainly I would not describe him as partisan but this behaviour in the witness box inevitably has coloured my views about his reliability in this case.”
These comments are revealing of a problem that is likely to crop up in “hot tubbing” sessions (i.e. where more than one expert gives evidence at the same ti me). In this case the dynamic of the “hot tubbing” session, and the structural engineering expert’s desire to “jump in” and rescue another expert on his side when he was in obvious difficulties, affected the judge’s perception of his independence. “Hot tubbing” experts is becoming more and more prevalent in technically complex cases. As this case demonstrates, there are new risks to that novel form of giving evidence, and even experienced experts will have to familiarise themselves with it.