Experts frequently play an important part in the conclusion of complex construction disputes. The usual role of experts is to provide independent opinion in their field of expertise in order to assist the Court / tribunal in their findings.
The English case of the Ikarian Reefer [1993] 2 Lloyd’s Rep 68 is one of the original references for the duties of an expert.
Author: Julian Haslam-Jones, Regional Director and UAE Country Manager
The expert witness must remain objective and independent throughout because a failure of either will affect their credibility and, therefore, weight to be given to the expert’s evidence which, in turn, may affect the success of the party’s case1.
However, the use of experts is expanding in construction disputes, as acknowledged by the London Court of International Arbitration (LCIA). One of the newer roles of experts is the role of the “shadow” expert, sometimes referred to as “expert advisor” or “dirty” expert.
THE DEFINITION OF A SHADOW EXPERT
The original use of the shadow expert was born out of the scenario where the tribunal, court or parties appoint a joint independent expert. This is particularly common in jurisdictions such as Australia and Hong Kong.
In this scenario the parties often employ an expert/advisor to assist with case strategy and technical matters in their field of expertise. Exploring and developing a claim or defence to a claim often requires substantial technical or specialist expertise, beyond that which can be provided by counsel. For this reason, experts are often engaged to assist in this process.
Shadow experts are an extension of the party itself. The person or persons appointed as a shadow expert do not give evidence in the proceedings. Their role is to assist the party that has appointed them to enable the strongest case to be advanced. This is quite a contrast to a “clean” / independent expert whose duty is to the Court / tribunal with a remit to present impartial expert evidence as summarised below.
A party may engage one expert as [an] advisor and a separate expert to act as [an] independent expert. The advisor is providing expert assistance whereas the independent expert is providing expert evidence. The “clean” expert is engaged to act as the independent expert. His paramount duty is to the Court, not to the party that retained him. He owes the duties set out in the Uniform Civil Procedure Rules. By contrast, the advisor is referred to as a dirty expert because he is not independent. He has no duty to the Court. He acts solely on behalf of the litigant. His role is to provide advice and formulate arguments in order to advance the case2.
In recent times I have witnessed an expansion in the use of shadow experts such that it is not just limited to disputes where a joint expert is appointed. It is now not uncommon for parties involved in disputes, to appoint a shadow expert as an advisor to support counsel even in circumstances where they have appointed their own independent expert.
THE ARGUMENT FOR USING SHADOW EXPERTS
In the traditional scenario, where the tribunal, court or parties appoint a joint independent expert, the main advantage the shadow expert provides is to help ensure that technical matters are presented strongly in claims and/or defences.
Further, the shadow expert can assist with aiding the understanding of the single expert’s opinion and/or providing guidance to counsel for areas to focus upon in any cross-examination.
In many scenarios the claimant or defendant often have employed the services of a claims consultant during the course of the project to provide advice and/or assistance in the preparation of claim submissions or defence rebuttals, and often retain the consultant as a shadow expert to assist in any proceedings.
This has many advantages. Firstly, it can help to avoid an unsupported or immature claim from being submitted into the proceedings. Secondly, the shadow expert can often help to set the parameters for the engagement of an independent expert who will ultimately provide evidence to the tribunal.
Finally, the detailed history and records of the project the consultant has built up during the works can be presented, by the shadow expert, to the independent expert and any follow up actions such as answering queries or providing further information can be efficiently addressed.
These above points can result in the claimant or defendant enhancing the value it has invested in employing the claims consultant during the course of the works. In addition, it allows a strong and clear claim or defence to be submitted in the proceedings using appropriate expertise whilst at the same time ensuring that the independent expert retains their independence.
THE ARGUMENT AGAINST SHADOW EXPERTS
One of the downsides of having shadow experts is the perceived additional costs which are considered to arise which could be thought of as contrary to the purposes of having one joint independent expert.
Another potential concern is that once counsel learns, with the shadow expert’s assistance, the strongest version of the case’s technical facts, a “clean” expert is hired to serve as the trial witness. The clean expert is informed only of the best features of the case and told only what is necessary to produce the most favourable independent expert reading of the case.
There is of course no guarantee that the views of the shadow expert will mirror that of the independent expert. The risk of such an outcome would be similar where a tribunal appoints a single expert along with the experts appointed by the parties.
CONCLUSION
What does the future hold for of the role of the shadow expert?
To answer this question, consideration must be given to the fact that the role of shadow experts is a relatively new role and like anything at the early stages of development the nature of the role is emerging.
In scenarios where a joint independent expert is appointed by the parties the role of the shadow expert in construction disputes seems a logical appointment to assist the claimant or defendant with technical expertise and experience which they may not have in-house.
The use of shadow experts, where independent experts are appointed by each party, is less clear. However, such a role can play a large role in assisting with resolving the dispute and reducing costs for the parties involved at the early stages of the proceedings. Alternatively, and as a minimum it will greatly enhance the quality of claims and defence submissions made in the proceedings such as to allow all participants to better understand all facets of the case.
One consideration all shadow experts should contemplate is that their advice is rarely visible to other participants in the proceedings. It is therefore important that if these experts perform other roles, in particular when they act as arbitrators, they bear in mind potential conflict issues arising out of any behind the scenes advice they have given in the past.
As with any emerging service perhaps the answer is for the relevant bodies and authorities to provide some guidance and regulation on such services.
1 Dean O’Leary, the use of experts in construction disputes in the UAE, May 2014
2 Declan Kelly & Dan Butler, Ethical Considerations in Dealing with Experts, 1 December, 2010
This article was originally written for issue 22 of the Driver Trett Digest. To view the publication in full, please visit: www.driver-group.com/digest-issue-22