SLQS-Journal Vol. 1 - Slqs-uae.org

SLQS JOURNALJanuary 2009The Role of the Expert WitnessPalitha Premasiri Gamage FRICS, ACIArbProject Quantity Surveyor in Royal Estates, Oman.worked as a quantity surveyor for over 19 years in overseas and 7 years in Sri Lanka. Become an expert inmodern construction procurement strategies while working as PQS for Emirates Twin Towers in Dubai, Qasr AlAlam Guest Palace in Muscat, and sub-contractor’s QS for Power Station “G” in Jabel Ali and National Bank ofDubai Head Quarters. Lecturer in CPD for SLQSs in Oman.Expert witnesses do not resolve disputes but they are keyfigures in both criminal and civil litigation and arbitration.Expert witnesses are people with skills, experience andcompetence within a particular field of operation who giveopinion evidence based on their technical knowledge asapplied to the matter in dispute.The role of an expert witness is to assist the judge or arbitratorby explaining and interpreting technical issues. Their duty isto act impartially and honestly. An expert must not advancethe case of one of the parties; to do so would not only be abreach of duty but it would also be counterproductive – ajudge or arbitrator will give little or no weight to the evidenceof an expert who is obviously advocating one party’s case,rather than giving an honest and unbiased opinion.This article is written based on the English law under whichthe duties of experts are now set out in Part 35 of the CivilProcedure Rules. Part 35.3 provides:(1) It is the duty of an expert to help the court on the matterswithin his expertise.(2) This duty overrides any obligation to the person fromwhom he has received instructions or by whom he ispaid.The practice direction annexed to Part 35 require at paragraph1.2(5) that:‘Where there is a range of opinion on the matters dealt within the report (expert must):(1) Summaries the range of opinion, and(2) Give reason for his own opinion.’The expert witness must understand the rules of proceduresof the tribunal or court where he is acting. Being a compellingexpert witness requires specialist knowledge and skills inwritten and oral presentation. The expert must have hadsufficient experience with problems of the same kind asthose of the dispute. He must prepare thoroughly. He mustunderstand the nature of the contract from which the problemhas arisen and have studied all material papers connectedwith the problem to ascertain whether he can support onbalance of probabilities of the civil case and be fair by thosewho approach him to act as an “expert witness”.Alternatively one may be approached to produce a thoroughfact finding report. An accurate objective assessment of asituation may be required. This could lead to years later beingcalled as a witness and being questioned on some aspectof the documentary or oral advice one has given to one ofthe parties who later has become engaged in disputatiousproceedings arising from the initial contract. Whenapproached by a lawyer, it is likely that proceedings involvinglitigation or arbitration are in contemplation. It should beThe expert witness must understand therules of procedures of the tribunal or courtwhere he is acting. Being a compelling expertwitness requires specialist knowledgeand skills in written and oral presentation.established whether one has a privileged relationship extantwith the client’s legal adviser. The terms of reference shouldbe established, and be assured that one is proceeding on thebasis of instructions received from the particular lawyer actingon behalf the client.The expert witness’s written report will be seen by his client’sopponents. He will be questioned by lawyers, and possiblymembers of a judicial tribunal, some of whom may possessknowledge in the same particular field. The expert witnessmay be asked to provide an expert testimony anywhere inthe world. He must be careful that his evidence does notconflict with the opinion he has previously expressed. Withinthe English Legal System the expert witness must maintainobjectivity.Under the English Adversarial System, it may be argued8