Reviewed Feb 2017The role of an expert witness is important and vital to the proper functioning of the architectural profession.Occasionally concern is expressed about the quality and veracity of expert evidence presented by some architects and building surveyors who engage in this professional activity. Is it justified?The High Court Rules provide a code of conduct for experts, but it might be timely to reiterate the nature of expert evidence, with particular reference to claims which allege professional negligence on the part of an architect.
As to the nature and quality of architect expert evidence, I draw your attention to a 2013 judgement which involved the participation of many expert witnesses. The judge’s insight into the quality of their evidence is worthy of note for those who may contemplate undertaking the role of an architect expert witness. [For those wishing for more architectural chronology and construction details, refer to High Court of Justice, Queens Bench Division, Technology and Construction Court in England, Case No HT-11-374].By way of background, these proceedings related to the quality of architectural services provided by AEW in their design, detailing and construction-observation of the Museum of Liverpool, which was undertaken between 2007 and 2011. The museum had a dramatic and interesting design, with sweeping roofs and two separated half-amphitheatres comprising steps and seats at the north and south ends. It attracts hundreds of thousands of visitors each year. The seats, steps and terraces suffered from overall design problems and architectural decisionsThe following extracts from this judgement, which relate to the evidence of witnesses and expert witnesses, are italicised hereafter.
No factual witnesses were called by the Architect, AEW, and no explanation or evidence as to why they adopted this course.The Executive Director of the museum was astute and experienced in her job. Her comments had a ring of absolute truth. She was prepared to make concessions with regard to some of the quantum evidence which underlined the basis of her honesty and integrity.She was subject to polite but firm cross examination, but stood up well to that and I found her immensely believable.The project Quantity Surveyor was found to be a decent and convincing witness.The Contract Administrator had 26 years of management experience on large-scaled construction projects. Initially nervous, he gained confidence. He was a decent and positive witness and broadly a creditable witness.The museum’s Director of Estate Management was a straightforward witness, ready to concede. I found him impressive and believable.
Down to earth, sensible and honest. A sensible and decent straight forward witness. A reliable witness.The contractor’s Project Quantity Surveyor did not always answer relatively simple questions put to him. Much of his written evidence was not challenged, but I am circumspect about the reliability of his evidence where it differs from contemporaneous documents.
The museum’s Architect expert was an extremely experienced architect and indeed, expert. He produced by far, the best expert report of all the architect experts. He was able to explain himself in a language that non-architects could understand.In contrast, the architect expert called by the Architect, AEW, was wholly unimpressive, possibly partly because he had never given expert evidence before. He had given little or no coherent thought to the issues of the case, and had not been asked to consider what could reasonably have been expected of an architect in AEW’s position. He was wholly unconvincing about all aspects of liability. He accepted that he was “seeking to defend the indefensible for the benefit of AEW.” He was faltering in his evidence and often did not seem to understand the questions. I can place no weight on any of his evidence.The defending party’s experts moved a not insignificant way towards the museum’s architect expert’s view – confirming that he was the more reliable expert.The museum’s engineer expert was the most experienced engineer giving evidence. He was straight forward in his evidence, authoritative and pragmatic.The architect’s engineer expert was often argumentative, if not combative when cross-examined. I would not describe him as partisan, but his behaviour in the witness box inevitably coloured my views about the reliability in this case.The contractor’s engineer expert was the least experienced of the three. He was decent and straight forward, but his approach to the particularities involved with the design was somewhat academic.
This case involved often competing expert evidence, which was contested under rigorous cross-examination and appropriate weight then given to the credibility of each witness.This weighting is rarely given in situations where the competing expert evidence is considered within a mediated settlement forum. In such situations, the relative credibility of competing expert evidence cannot be properly assessed within the time set aside for the mediation. It is in these instances (90-95% of disputes) that greater reliance must be placed upon the true, competent and unbiased quality of expert evidence. Unless the competing expectations of both parties are properly orientated, much precious time will be wasted in attempting a realistic alignment of their respective expectations during the early stages of the mediation process and an unfair outcome may ultimately result.An expert witness’s opinion should be always consistent, irrespective of who pays the fee.Graham StrezClaims Director, NZACS