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

SLQS JOURNALJanuary 2009that cross examination is destructive, that it is directed atuncovering ignorance rather than highlighting the witness’sknowledge. In contrast, the report of a court expert is usedunder the Continental Civil Law System. Under this system itseems, that the view of a number of experts can be put beforethe court more cheaply and conveniently than under theEnglish System. The French court experts unlike the Englishcourt experts do not have to spend many expensive hourssitting in court listening to oral evidence being given.Under the English system, judges, planning inquiry inspectors,and juries, having observed rival experts under crossexamination,are free to reject any expert evidence adduced.In England, conflicts where the core of the dispute is a genuinedifference of opinion between experts possibly account for afewer percentage of all cases which come before the courtsor arbitrators. An arbitrator of like discipline, or in the caseof a major dispute, a tribunal consisting of both lawyer andexpert, or lawyer sitting with an expert as assessor may beadvisable.Partisanship by an expert or both expert accounts for possiblyas high as eighty to ninety percent of cases heard. Difficultiesarise because in the normal sequence of events leading toarbitration or litigation, the expert performs his role, giving hisopinion to his client, the negotiator and the expert witness.When advising the client the expert must not give into thetemptation to give the client the opinion the client wants.Once the expert has also been involved in negotiations hehas almost inevitably aligned himself to some extent with theclient. Clients facing an opposing expert who is exaggerating,often want their own expert to exaggerate in the contrarydirection. Many clients believe that judges and arbitrators“take the mid-point” and some actually do.There is the argument that the role of the expert witness inthe common law jurisdictions is intellectually ambiguous.An Expert can also be engaged to assist as advisors innegotiations, mediation and adjudication.Expert witnesses should not allow different conclusionsto arise simply because they began with different facts.Unreliable Expert evidence because of biases is a problem.Amec Civil Engineering Ltd -v- Secretary of State for Transport [2005]The appellants, Amec Civil Engineering Limited, had as Contractor carried out major renovation works to the viaduct under acontract with the Secretary of State as Employer. Amec substantially completed these works on 23rd December 1996. The workincluded replacing an existing reinforced concrete deck slab and providing new roller bearings permitting the slab or other elementsto move. In June 2002, some of the roller bearings appeared to have failed. The Highways Agency, acting as agent for theSecretary of State, needed to investigate the cause of the failure. Investigation, which included materials testing, was bound to takesome time.Intrinsically the cause of the failure was likely to be poor workmanship, poor design, poor materials or a combination of these.Amec had supplied and installed the roller bearings which had been supplied to them by a sub-supplier in Italy. Amec had alsodesigned the roller bearings, but their design had been adopted by the Engineer under the contract, Pell Frischmann ConsultantsLimited.The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carriedout on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no validengineer’s decision within the time limit provided. Held: The court must avoid an over-legalistic approach to interpretation of thecontract. The engineer has a duty to act independently honestly and with fairness, but the rules of natural justice as such did notapply to his decision.9