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Economic downturn necessitates fast dispute resolution
In order to avoid delays and extra costs, fast and efficient dispute resolution has become an imperative in the current economic climate.
The latest half-day seminar, from multi-disciplinary consultancy STATS Limited, titled ‘The Expert in Construction’ and featuring several high-profile industry figures, focused on ways to achieve dispute resolution and the key role of the expert witness.
In his introduction to the seminar, held at the Institute of Directors in Pall Mall, STATS Chairman Adrian Marsh said: “This event could not have been more timely. The frequency of disputes generally rises during an economic downturn. This can result in significant delays and additional costs, so I hope that today’s presentations will highlight the pivotal role of the ‘expert’ in effective dispute resolution.”
John Marshall, Partner – Contract Advisory Services (EC Harris LLP), gave a presentation in which he focused on the main causes of delay, including the failure of contractors to keep adequate records and to notify employers of possible delays in a timely manner.
He said that in the current climate, the respective parties’ obligations should be clearly explained and understood, taking into account such factors as who is paying for what and when critical stages of the project should be delivered.
Most disputes are eventually resolved out of court, but he explained that accurate records are particularly important in those cases that do reach the courtroom.
Disputes often relate to a disagreement on fitness for purpose of construction materials and Dr Ian Sims, the Director at STATS responsible for expert witness services, cited a number of examples in which inappropriate materials or construction methods had been employed.
These included: a poorly designed inverted roof in which mineral wool rigid insulation collected moisture; thick concrete walls affected by excessive heat generation in Saudi Arabia and an airport asphaltic runway damaged by environmentally friendly chemical de-icers. Interestingly, Ian noted (tongue in cheek) that his team “is often called in to inspect structures that had previously won architectural awards!” 'Ian also explained that the fitness for purpose of a product included the adequacy and validity of its accompanying technical information and/or guidance on use; he cited various examples of resin-based flooring systems for which misleadingly optimistic properties had been claimed and/or incorrect advice provided on the installation conditions.
Legal expert Sarah Hannaford QC (Keating Chambers) then used examples of past courtroom experiences to help illustrate her presentation ‘The Role of the Expert Witness’. She highlighted potential pitfalls for an expert witness within construction disputes, which included lack of preparation, the use of exaggerated language and acting as an advocate in the proceedings.
An expert witness should also provide objective, unbiased opinion and should not omit to consider material facts which could detract from his/her concluded opinions.
The employment of assistants by experts was deemed acceptable, as long as the expert is able to comment accurately on every detail provided by them.
Responding to a question from a seminar delegate, Sarah commented that it might become necessary to employ more than one expert in order to ensure that every area of expertise is adequately covered.
Summarising the seminar discussions, guest chairman Laurence Cobb, of Taylor Wessing Solicitors, said: “The one clear thread running through this seminar is the importance of communication; every speaker has commented on the importance of 'making the complicated simple' by way of clear and concise communication.
“Naturally, it is vitally important to choose the right expert witness. Technical capability is obviously essential, but it is also important for the expert to have had 'coalface' experience – practical experience in issues which affect the day to day running of construction projects. It is also extremely important for there to be'chemistry' between the expert, the client and the legal team; a well prepared team with good communication is much more likely to achieve fast, effective dispute resolution."
Delegate copies of the presentations and literature are available
on request by emailing claire.ferguson@stats.co.uk.
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