National Museum and Galleries on Merseyside v AEW Architects and others.
Technology and Construction Court, July 2013
This case is a very unusual insight into the thinking of a senior judge on the question of expert witness skills, demeanour and behaviour. The actual case largely revolved around the question of costs, as the architect (AEW) admitted liability in respect of most aspects of the claim against it very shortly before trial.
The main design failings alleged against the architect concerned steps and seats to the amphitheatres as well as faulty suspended ceilings. Because of problems with detailing there was a redesign with consequent delay and additional cost. Mr Justice Akenhead found AEW in breach of contract, negligent and in breach of its coordination and inspection obligations.
One of the most interesting aspects of the judgment, however, concerns the judge’s consideration of the evidence provided. There was little or no evidence from AEW explaining its actions, but expert architects and engineers were called by the various parties.
The museum’s architect expert was described by the judge as “extremely thoughtful serious and knowledgeable”. He said it was important that he was able to explain himself “in language other architects could understand”. The witness had “carefully analysed all the issues and gave… comprehensive and credible evidence.”
The architect called by AEW was, in contrast, “almost wholly unimpressive”. The judge speculated this was because he had never given expert evidence before. He was called at the same time as the engineering expert (in a practice known by practitioners as “hot tubbing”). The judge said that the expert architect had given “little or no coherent thought to the issues in the case”.
When talking about the engineer experts the judge said that he valued pragmatism. He made clear, however, that he did not want experts to be partisan or “argumentative”. He also made clear that while he wanted the evidence to be given in an understandable way he did not want the expert’s views to be oversimplified. One of the experts was described as “chatty and occasionally somewhat argumentative”.
The judge also said that the fact that a number of the experts for the defendants belatedly – that is, during the trial – accepted elements of the remedial scheme proposed by the claimants undermined the credibility of their evidence.
Stephen Clarke’s analysis
The first lesson to be learned is the importance of the expert instructed. Although this often happens very early in the chronology of the litigation, it should always be presumed that the matter will proceed to trial and the best expert possible should be appointed.
The expert needs to be ideally of exactly the same discipline as that being complained against and crucially needs to be experienced in writing reports which are compliant with court procedures (there are stringent parameters around such reports) and experienced in giving evidence. This latter is often forgotten and the witness demeanour and behaviour is clearly important in the judge’s decision, as demonstrated in this case.
A witness should be polite, not too argumentative and should be very careful not to concede ground to the other side’s expert witness during the course of the trial. If this ground is to be conceded it is done prior to the start of the trial.
Stephen Clarke is a solicitor and national head of construction law at Clarke Willmott. 0845 209 1303 or email [email protected]
