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Expert witnesses in construction disputes

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Posted on 28 October 2014

The technical nature of many construction disputes means it is common to find experts involved on both sides. A recent case has highlighted the importance of experts being able to justify their position. Whilst many reading this article might think this an obvious point, the following case shows that is not always so.

Building disputes

The case of Hirtenstein v Hill Dickinson, which took place this summer, concerned defects in a yacht bought for US $5.5m although without, perhaps surprisingly, a survey or sea trial. Although, strictly speaking, it is not a construction case, the principles involved are directly applicable to building disputes (it was also, despite the purchase price currency, an English case).

Following the purchase of the yacht, and shortly after setting sail, one of its engines failed. Mr Hirtenstein, the purchaser of the yacht, brought a claim for professional negligence against the solicitors who had acted for him on the purchase. He said they should have obtained a personal guarantee from the seller regarding the yacht’s condition. For the purposes of this article the latter point is not relevant, although in fact the Judge held that the purchaser would have gone ahead with the purchase in any event, because of the purchase price.

The issue we are concerned with is the expert evidence put forward by both sides involved in the case. However the expert for Mr Hirtenstein came under significant criticism from the trial judge.  

Remedial items

It transpired that Mr Hirtenstein had claimed for various items which were not, as the Court found, items he was entitled to claim for. They were upgrades to the yacht rather than remedial items.

When it came to expert evidence, Mr Hirtenstein’s expert was found to have been “careless” in his assessment of the cost of repairs. Somewhat surprisingly, the expert was unable to explain to the Court why he had included in his report on the repairs, items that were in fact upgrades, rather than required repairs. The explanation given by the expert was to say that he had assumed they were necessary because they had been purchased. By analogy to a construction project, this is the same as saying that because a party has incurred the cost of having certain works carried out it is assumed that they relate to the default of the other party. That does not always follow.

Perhaps more damning to the expert (and therefore to Mr Hirtenstein’s prospects in the case) was the fact that he had included over US $700,000 of expenditure in his report that he was, to quote the trial judge, “completely unable to explain” and had no knowledge of. As the trial judge stated, “At the end of [the expert’s] evidence, I offered him the opportunity to provide an explanation to the Court before the end of the trial of how an appendix had come to be included as part of his report of which he claimed to have no knowledge.  [The expert] did not take up that opportunity, and I can therefore only infer that there is no explanation which exonerates [the expert] of incompetence.  On his showing in this case I do not consider that he is a fit person to act as an expert witness”.

The result was that the court gave no credence to Mr Hirtenstein’s figures, which the judge said had been “rubber stamped” by his expert.

This is perhaps an extreme example of an expert falling below the standard the Courts expect. The case does nevertheless serve as a timely reminder of the need for experts to act independently and impartially, and to be able to justify their reports and opinions. The Courts have recently issued new guidance for expert witnesses, and it remains to be seen whether the Courts will now take a tougher line on expert evidence.  

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