by Donald Davies FNI, maritime arbitrator
A good friend and MEC Associate, Captain Robert Moss, sent me this article from the July 1995 issue of SEAWAYS, a monthly journal of The Nautical Institute, London. It is reproduced in part with their kind permission as it is instructive of the work ethics which we believe all experts should have. (Ed.)
Before I consider what an expert needs to be useful, and where expert witnesses get it wrong, as viewed by an arbitrator, I set out the judicial guidelines regarding the role of the expert witness. This has to be a very useful starting point. The Ikarian Reefer (1993)-volume two, Lloyd's Law Report, p.68-was concerned with the grounding of a vessel and whether or not she was deliberately grounded and/or set on fire, resulting in a constructive total loss, with the shipowner's connivance.
There were issues relating to navigation and how the fire was caused; there were two principal experts in respect of the navigation issues and 11 experts in respect of the cause of the fire itself; naval architects, metallurgists, mechanical engineers and fire experts.
In the early part of this judgment Mr. Justice Cresswell set out the duties and responsibilities of expert witnesses, in civil cases, as including the following:
1. Expert evidence presented to the Court should be, and should be seen to be the independent product of the expert uninfluenced as to form or content by these exigencies of litigation (Whitehouse v Jordan. (1981) 1W.L.R. 246 app.246, per Lord Wilberforce).
2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matter within his expertise. An expert witness in the high court should never assume the roll of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
6. If, after exchange of reports, an expert witness changes his view on the material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay, and when appropriate to the court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
While it may be that the role of an expert is two-fold, first to advance the case of the party calling him so far as it can probably be advanced on the basis of information available to the expert in the professional employment of his skill and expertise; and secondly to assist the Court (which does not possess the relevant skill and experience) in determining where this lies, the seven points enumerated above by Mr. Justice Cresswell are the essential judicial guidelines which the expert should have in mind.
To the extent that the expert's evidence is not the independent product of his expertise, uninfluenced as to form or content by the exigencies of litigation, it is likely to be not only incorrect but self-defeating (see Lord Wilberforce in Whitehorse v Jordan).
What has been stated above applies equally to arbitration although it may be thought by some experts that because the arbitrators have, or are supposed to have, relevant expertise, it is fair game to overlook some of the guidelines. After all, it is human nature for an expert to wish to be on the winning side and there is no doubt that some arbitrations are, in actuality, won by one of the experts because his evidence is accepted by the arbitral tribunal regarding the crucial issue in the arbitration.
However, it is my experience that the expert who stays within the guidelines does the greatest service to his clients. I have been in many arbitrations where a biased expert, not sufficiently objective, has come to grief and, because of that, has been on the losing side with his client. Further, before a case gets to the door of the arbitration hearing, there is always the chance of a settlement: in order to achieve a realistic settlement it is essential that the client can see, from his expert's report, the strengths and weaknesses of his case.
An expert should be able to deal with the matters in hand. Some think that they can be experts in areas which in reality, they are beyond their expertise. An expert has to have in mind that, ultimately, he may be rigorously cross-examined by very clever counsel: and it is imperative that the expert can deal with very searching questions they will pose.
I have been involved in arbitrations where one expert was not able to deal effectively with the other expert because of a lack of expertise, and the case concerned an area of expertise that was outside that of the arbitrators (for instance bio-chemistry). It is essential that experts do have the expertise to handle what may emerge at an oral hearing. Of course, when it comes to navigation/seamanship matters, both parties invariably have expert witnesses with the relevant expertise and the tribunal itself usually has appropriate expertise so that the arbitrators can, if necessary, probe the experts.
There is a growing tendency for arbitrators to direct expert witnesses to meet before a hearing on order to reconcile their differences. The procedure makes sense because there is frequently a lot of common ground between the experts regarding factual/causation aspects, and if this can be put to the arbitrators it simplifies matters very much. What the arbitrators like is to have an agreed statement from the two experts setting out the areas upon which they agree and those upon which they disagree. This means that the oral hearing is more concerned with the areas where the experts are unable to agree between themselves.
Home ! Search Page ! Master index ! Table of Contents for this
Issue