We are often asked if an expert witness is likely to help resolve a payment dispute in favour of the subcontractor, or whether their allegiances actually lie elsewhere?
Often, the quick answer to both questions is yes. And, whilst this might sound like a bit of a paradox, getting a clear picture of their role will help you to understand the risks and benefits of asking a third party to present evidence.
According to The Royal Institution of Chartered Surveyors (RICS), an expert witness must provide independent, impartial, and unbiased evidence to the court or tribunal. They also state that this opinion must be based on the witness’ own experience, expertise and knowledge.
Whilst this might seem perfectly reasonable, it also means that despite the appointing party hoping that the report will assist them in winning the dispute, this may not necessarily be the case. After all, the expert witness cannot be seen to act as an advocate for the appointing party.
The potential conflict of interests is clear and an expert witness can frequently find themselves stuck between the appointing party, who may be paying for their service, and the court who simply want information which is both accurate and impartial.
For this reason, the expert witness must make sure that they conform with The Civil Procedural Rules (CPR), which make it clear that their overriding duty is always to the court. Experts should also be open and upfront about any connection they have with parties to the claim. Failure to do so may result in their evidence being discredited or rendered inadmissible.
Understanding the risk
Given the above, it might sound as though calling an expert witness is a risky step to take. One that increases your costs without any guarantee of achieving the result you want or expect. However, a report which demonstrates neutrality will generally have a far greater impact on an adjudicator or judge. It may also give the expert witness more confidence under cross examination.
So whilst it might be tempting to create an overly positive picture of your position, or gloss over any deficiencies in the case presented, doing so could result in giving more power to the defence. In truth, the opposing party’s case could be significantly bolstered by highlighting any gaps in evidence and then seeking to give these issues more weight due to their earlier omission.
In summary, an expert witness can be of great value to your case, but only if you clearly understand the rules and principles they will be operating under. Fully appreciating this will help you to decide when, and when not, to call on their services. It will also help you know how to react when the opposing party chooses to go down the same route.
Remember, if you are involved in a payment dispute and need expert advice to come to a commercially attractive settlement, just get in touch.