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Expert evidence: Time to lift the game.

Author: Steve Alexander

NZCB MNZIBS Dip Business (Dispute Resolution) FAMINZ

March 2017

Steve Alexander is an expert in building defect investigation, expert determination and adjudication. Since 1997 he has investigated over 1000 buildings and / or been an expert witness in over 500 building and construction disputes and has provided expert evidence in applicable tribunals and the High Court. He is a Fellow of the Arbitrators and Mediators Institute of NZ Inc. and is listed on the AMINZ adjudication panel.

Summary

There is debate about the affordability of justice and senior members of the judiciary have spoken on this issue. There are many views that the High Court objectives of just, speedy and inexpensive determination are not achieved in too many cases. There are also many views that experts sometimes take on the role of partisan advocates instead of neutral fact finders or opinion givers.

A massive increase in building defect claims has arisen in the last 15 years and the Government response of court litigation and Weathertight Homes Resolution Act has not been a successful mechanism to cope with the magnitude or complexity of the problem. Expert evidence in building disputes has deteriorated under the pressure of time, cost and market demand. The result has often been partisan evidence to support a commercial negotiation process rather than well researched quantitative peer reviewed evidence fully compliant with court or tribunal rules.

Studies of other fields of expertise have made similar findings concluding that the traditional safeguards of the adversarial trial may be insufficient protection against questionable expert evidence. Experts were disillusioned with the current process and saw the need for multi – systemic reforms including reforms that “would reduce the extent to which experts are made part of the adversarial battle”.

There are many possible avenues for reform. The most important reforms to make the most difference would seem to be greater judicial case management, specialist courts, a move to court or tribunal appointed experts and tempering of the adversarial battle with more inquisitorial process.

Steve Alexander 2017 Expert evidence, Time to lift the game of 26

Contents:

Access to justice Current law of expert evidence Response to leaking homes Evidence in building disputes Is the system broken? Bias Complexity Quantitative vs Qualitative Henderson and Seymour Weathertight Homes Tribunal International Responses Expert views Case Study Options for reform

The hot tub Procedural realism More judicial involvement Specialist courts and tribunals Immunity Strengthen the rules A Daubert test A Sachs protocol Shadow experts Fees Separating quantum and liability Less adversarial more inquisitorial


Access to Justice

Integrity of expert witnesses has been a concern expressed in numerous forums over a long time. It is timely to cast light on expert witnesses in NZ considering the explosive growth of building defect claims in the last 16 years and more recently on claims arising from the South Island earthquakes.

Bringing additional urgency to the review of expert services is the growing concern that justice is not affordable to many litigants and nor are the High Court objectives of just, speedy and inexpensive determination being achieved. In 2014 Justice Winkelmann, spoke of justice becoming increasingly being beyond the means of some of society and the manifestation of the unrepresented litigant.1

This is an issue considered in other countries. In 1996 Lord Woolf produced a report in the UK expressing concerns about the cost and delay involved in litigation.2 There was wide support for the view that “experts sometimes take on the role of partisan advocates instead of neutral fact finders or opinion givers”. While Lord Wolf wanted to retain the best parts of the adversarial system he considered that application of the full “red-blooded’ adversarial approach was only appropriate if questions of cost and time are put aside”. In Australia there has been shift towards more judicial case management as Judges seek to exercise more control over cost and delay to ensure greater access to justice.3

I was first motivated to write on this by a paper delivered by Justice Kos at the 2016 AMINZ conference. His honour was addressing the concerns about affordability of justice and also addressed the problem of unrepresented litigants.4 The judiciary concerns about the affordability of justice were closely aligned with my experiences with expert evidence and I write to share my experience on how expert evidence contributes to the cost of justice. In my experience the adversarial system is not an efficient way to get to the truth and there needs to be reform, including development of the law, to reduce costs and to get more value from the dispute resolution process.

The reforms proposed by Justice Kos could also improve the quality, reliability and cost of expert evidence. Indeed, more controls on the use of expert evidence have been introduced in other jurisdictions specifically to address issues of reliability, cost and delay.

This paper records my experience as an investigator of buildings and expert witness in building and construction litigation since 1997. Having been instructed in over 500 disputes over 20 years I have seen how litigation has been the wrong choice as the primary response to a building crisis that has caused financial and emotional distress to thousands of New Zealanders. Generally however the resolution of building disputes can be made faster and more cost effective with improved process around expert evidence. Reform has been undertaken in other countries and New Zealand is over due for improvements in delivery of expert evidence.

1 Ethel Benjamin address. Access to Justice – Who needs Lawyers? 7 November 2014. Her Honour

Justice Winkelmann, Chief High Court Judge. 2 http://webarchive.nationalarchives.gov.uk/20060214041428/http://www.dca.gov.uk/civil/final/sec3c.ht

m#c13 3 Party Appointed Expert Witnesses in International Arbitration: A protocol at Last by Doug Jones.

Arbitration International, Vol. 24, No 1. Page 138. 4 Civil Justice: The haves, have nots and What to Do About Them. Justice Stephen Kos, Address to

Arbitrators and Mediators Conference, Queenstown 2016.


Current Law

I will begin with an outline of the current law as it relates to expert evidence.

In 1989 the Law Commission was asked by the then Minister of Justice, the Hon. Jeffrey Palmer, to review the laws of evidence. After extensive work over a decade, the Law Commission delivered a final report to the Minister in 1999. The evidence bill was introduced by the government in 2005, became the Evidence Act 2006 and this largely came into force from 1 August 2007.

A provision of that Act, Section 202, provided for periodic review of operation of the Act on a five yearly basis. The first review was commenced in February 2012 and was later published in February 2013 as “The 2013 Review of the Evidence Act 2006”. 5 The Act was thought to be working relatively well and AMINZ was one of the 19 parties making submissions on specific matters that were recommended for scrutiny. There were a range of matters not considered in the review and one of those matters was expert evidence.

The Commission were asked whether the process for giving expert evidence should be changed and this was substantially prompted by the Dominion Post newspaper article entitled ”How Effective are Expert Witnesses?” 6 That article was sufficiently compelling to draw the attention of the Law Commission who found the issues raised interesting. However, the commission concluded that whether there should be a new approach to presenting expert evidence in court was a substantive matter of policy and beyond the scope of the current assessment that involved whether the provisions of the current Act were working as intended.7

Given the passage of four years and the presentation of more compelling reasons it is timely to bring the matter back to the table. Interestingly, the Dominion Post article was entirely about expert evidence in criminal trials, and in such trials detailed issues are often given considerable scientific scrutiny. The concern expressed was the inadequacy of expert evidence in matters that did proceed to a court trial.

In my experience, matters in civil proceedings and particularly the building and construction sector, inadequacies of expert process are magnified for multiple reasons:

(a) Usually there are many issues considered to a shallow level, rather than few issues considered to a very in-depth level as is often characteristic of criminal cases.

(b) The experts know that there is a low probability that the matter will ever proceed to trial and that they are unlikely to be held to account for the evidence presented, whereas the chances of scientific evidence in criminal proceedings being held to account is considerably higher.

(c) Evidence in the building and construction sector has in recent years been characterised by having a minimum level of quantitative analysis.

5 The 2013 Review of the Evidence Act 2006. Law Commission Report 127. 6 How effective are expert witnesses, Dominion Post (online ed. Wellington 18 December 2012) 7 Above 5 at page 12.


The Evidence Act 2006 defines an expert and expert evidence as;

Expert means a person who has specialised knowledge or skill based on training, study or experience.

and

Expert evidence means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion.

Under current law the test for admissibility of expert opinion evidence is whether; 8

“the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding and ascertaining any fact that is of consequence to the determination of the proceedings”.

Impartiality of the expert is not the critical test for admissibility.

Section 26 of the Act requires that;

“experts are to conduct themselves in preparing and giving expert evidence in accordance with the applicable rules of court relating to the conduct of experts”.

The High Court Rules of Evidence have a requirement for impartiality;9

“an expert has an overriding duty to assist the court impartially on relevant matters within the expert’s area of expertise”.

And

“an expert is not an advocate for the party who engages the witness”

Compliance with the rules is a prerequisite to admissibility. However, the courts have taken an open view to admissibility. In Commissioner of Inland Revenue v BNZ Investments Ltd.10 The evidence of two experts was arguably not compliant with the Code of Conduct and the Court of Appeal found that removal of the offending parts from the record was appropriate rather than disqualifying the experts from giving evidence.

The Court of Appeal further confirmed in Lisiate v R11 that expert evidence is not inadmissible simply because an expert is associated with one of the parties.

The difference between advocacy and support which was considered in Maritime Union of New Zealand v TLNZ Ltd 2007 12. The difference being;

“between persuasive/party supportive opinion evidence (admissible) and opinion evidence that is partial and/or amounts to advocacy for the party calling it (inadmissible)”.

8 Evidence Act 2006 Section 25. 9 High Court Rules schedule 4. 10 Evidence Act 2006 Act and Analysis 3rd edition. 11 Above 10 at page 118. 12 Above 10 at page 118.


The issue of admissibility of expert evidence is mainly focussed on opinion evidence, not facts. Therefore it is incumbent upon an expert to try to be as clear as possible regarding what is being presented as fact and what is presented as opinion. The importance of this distinction was affirmed in R v Munro13.

The term “substantial helpfulness” is used as opposed to simply “helpful” for the purpose of raising the threshold expected of the evidence.

The substantial helpfulness test was intended to draw upon the principles established in the United States Supreme Court, Daubert v Merrell Dow Pharmaceuticals Inc. 14 Daubert proposed a test of four factors for the admissibility of expert evidence, these being:

• falsifiability,

• peer review and publication,

• known or potential error rates, and

• general acceptance in the relevant scientific community.

The Privy Council in Lundy v R found that the Daubert test is at least a good starting point for determining substantial helpfulness and admissibility, although it is not codified as a necessary test in NZ jurisdiction.

The US Supreme Court extended the Daubert test to include evidence based on “technical and other specialised knowledge” in a later case of Kumho Tire Co v Carmichael. I do not know of any reference to or application of the Kumho case in our jurisdiction.

The problem, in my experience, is more complex and less satisfactory that the issues expressed in the Dominion Post article. These complexities are not accommodated by the current rules of evidence.

1. There are significant differences between criminal and civil trials.

2. Expert evidence extends beyond scientific evidence. The borders of where science starts and stops are not defined and many issues require the application of experience and judgement. Social sciences and technical fields may reasonably be less quantitative but still valid as evidence.

3. More qualitative evidence can tend to allow advocacy and other credibility threats to influence expert delivery. Qualitative evidence is more difficult to regulate than quantitative evidence.

4. Although everything in the world has a scientific component but that does not mean all things must be decided to the limits of current scientific knowledge. There is an economic limit to the resolution of all differences and such limits should be acknowledged.

5. Most disputes contain a range of critical and peripheral issues that need to be approached differently.

13 Above 10 at page 14 14 Above 10 at page 109


Response to leaking homes

In the 20 years from 1997 to 2017 there was an unprecedented increase in building defect litigation. This was caused by what became known as “leaky buildings”, a terrible expression because it did not represent the real situation. There were many defective buildings for many reasons and leaking only served to draw attention to one of many issues that plagued the industry, and which the courts needed to help address.

In 2002 the Report of the Overview Group on Weathertightness of Buildings was released and the government instigated inquiry became know as the Hunn report15. This suddenly brought industry and public recognition to the problem precipitating the Weathertight Homes Resolution Service Act 2002, the Building Act 2004 and the Weathertight Homes Resolution Service Act 2006 (WHRS).

The Report of the Overview Group on Weathertightness of Buildings in 2002 was, in my view, a very good analysis of what had gone wrong with building in New Zealand. Simply stated the terms of reference involved the determination of;

• Is there a problem?

• If so, what is the nature of that problem?

• And what has caused the problem?

However, the conclusions of the enquiry could have prompted a further process to determine;

• what is the economic size of the problem?

• and what is the best mechanism to resolve the problem?

Before those questions were fully addressed the Government responded with the Weathertight Homes Resolution Act 2002, the Building Act 2004 and the Weathertight Homes Resolution Act 2006.

PWC were later engaged in 2009 to quantify the problem16. Their report concluded that the problems with weathertightness involved approximately 42,000 residences with a likely repair cost of $11 Billion. However, there was a significant variation in the estimate ranging from a low estimate of 12,000 residences with a repair cost of $6 Billion to a high estimate of 89,000 residences at a cost of $23 Billion. In 2014 a BRANZ study report made reference to 110,000 effected buildings without quantification.

So the estimate was $11B but it could be half of that, or it could be double. This analysis was insufficient because it was based on inadequate terms of reference. It was assumed that the leaking problem mainly related to housing when, if fact, the issue extended to all types of buildings. Government buildings and non residential buildings subsequently experienced severe defects. It was also based on the premise that the problem was only about leaking and this was incorrect. There has been a general problem with building in New Zealand involving structure, fire and many other parts of the building code. However, ignoring those limitations, the numbers should have been a warning about the type of response required but the Government response had largely already been established with the Weathertight Homes Tribunal.

15 Report of the Overview Group on the Weathertightness of Buildings to the Building Industry Authority 31 August 2002

16 Weathertightness – Estimating the Cost. Price Waterhouse Coopers. 29 July 2009


As at May 2017 the Tribunal has either completed or has in progress 5357 cases.17 Over a period of 15 years this represents half of the lowest estimate of effected homes, 17% of the midrange estimate and less than 1% of the highest extreme estimate. Even if the High Court statistics are added to the WHRS numbers then there is still only a small proportion of home owners seeking a resolution using traditional dispute resolution methods.

Justice Arnold recognised in Sunset Terraces in 201018 that litigation was insufficient to resolve a systemic problem.

Taken with the Byron Avenue appeal, they show why a problem of the size and nature of that resulting from leaky home syndrome is unsuitable for resolution by means of litigation but requires some other, more comprehensive solution.

and

In this context, litigation, which looks to impose responsibility on particular actors for particular consequences on the basis of legal principles, cannot offer a sufficient solution.

The problem has been so large and complex that it effectively transcends traditional dispute resolution. The Courts and Tribunals could not reasonably be expected to process the volumes of actual or potential claims. Various streamlining was undertaken but the volume and complexities have been too great to address very large numbers.

Looking at what this did to the dispute process and particularly the provision of expert evidence is a useful process that suggests that the Law Commission should be asked to re-examine the law of evidence, at least to the extent of expert evidence and appropriate responses to technically complex industry wide issues.

One specific sector event, evidence in building disputes

Before addressing evidence more generally, I will outline my personal experience with building and construction related evidence over the last 20 years.

Between 1995 and 2002 there were very few experts working in building defect investigation but demand for building experts grew rapidly and became extreme. The NZ Institute of Building Surveyors Inc. were the principal organisation working to train more experts but also the WHRS carried out their own training programs of experts registered to provide service for the Tribunal. The number of claims rose rapidly from hundreds to thousands and suddenly everyone was an expert trying to leap onto the bandwagon.

Later the High Court began a leaking building list to manage the quantity and scheduling difficulties and now the High Court has an earthquake dispute list for the same purpose.

17 http://www.mbie.govt.nz/info-services/building-construction/weathertight-services/weathertight-

homes-resolution-service-claims-statistics/may-2017 18 NORTH SHORE CITY COUNCIL V BODY CORPORATE 188529 AND ORS CA CA673/2008 22

March 2010


Between the years 2002 and 2012 there were many new, often inexperienced, building experts suddenly providing evidence on cases that ranged in quantum from $200,000 to $20M. Even if the quantum was low the complexity was not. The law was complex, the building issues were complex and usually a single dispute could have 20 or 30 causes of action against possibly 5 to 15 defendants and a few third parties. Emotions and urgency were extreme due to the thousands of people who were having their health, relationships and financial security damaged or destroyed. Even if the experts were experts in matters of building that did not mean that they understood dispute resolution or how to express expert evidence in the context of a dispute.

In criminal trials there is concern that some experts present evidence that is out of step with the relevant scientific body of knowledge and literature.27 This matter is magnified in the building and construction sector where there is a public perception that building is not a scientific endeavour. To the contrary, there is a considerable body of international knowledge and literature of building science that is usually absent from most expert evidence in NZ. In my experience such an absence exists for four reasons;

1. The expert is not knowledgeable about the science and technology underlying building methods and practice.

2. There are many issues to address and so each issue gets relative cursory attention usually characterised by opinion rather than quantitative investigation.

3. The conflict between the desire to fully understand and explain the problem which can increase costs verses the economic justification for dispute resolution costs.

4. The client or instructing lawyer do not want to attract any uncertainty to the evidence presented and so discourage acknowledgement of limitations or omissions. The law seeks certainty but building is nuanced with many shades of grey. Lawyers seek to present certainty but sometimes no certainty exists or greater certainty would only exist with a considerable greater investment in expert time.

Training in expert practice at this time, was usually limited to reminding experts of their obligations under the High Court Rules, the WHRS rules and ethics of the dispute resolution process. While necessary at first, this rapidly became insufficient in the circumstances.

Dispute resolution in the beginning was conducted in relatively genial manner but as time wore on, the insatiable demand for settlement funds threatened insurance, reinsurance, reputations, ability to trade, careers, public tolerance, risk management practices and many other aspects critical to commercial life. Attitudes hardened and a mercenary atmosphere developed. The integrity of expert evidence was reduced for many reasons and the following paragraphs list, in no particular order of importance, the unfolding events of this period.

The courts (and tribunals) were under pressure of volume, media scrutiny and the reality that people needed resolution as quickly as reasonably possible. Therefore, short timetables were necessary.


Lawyers were under pressure to deliver outcomes their clients could continue to live with. Lawyers were also under pressure to retain work because they had developed significant expertise and intellectual property in this area of law and would not want to see that lost to a range of new less experienced practitioners.

There was a need to clarify aspects of the law.

Some experts wanted onto the band wagon and to make a name for themselves in this new lucrative commercial opportunity. Other experts were under pressure to retain work for similar reasons as the law firms.

Settlement times increased. Originally settling at mediation before expert briefs were written or exchanged was common, then settlement was not achievable unless expert briefs were written and exchanged. Interlocutory delays increased, then settlement would not be achieved until weeks before trial and sometimes settlement would not occur until a trial began.

The whole benefit of early mediated settlement before a long and costly process was gradually and then completely lost.

Strong personalities and high work pressures were a feature of a situation that was extremely polarising. Commercial interests tended to eclipse principal led behaviour. Some clients demanded a very customer focussed service and pressures grew to please the client to retain work. Some organisations arose specifically for the purpose of advocating the interests of home owners and this further strengthened the demand to deliver advice in a more appealing manner or flavour. Many claimants would change experts or other advisers to obtain a more favourable service.

In all professional services there is a conflict between advising the client truthfully and independently as opposed to delivering a message in a sugar coated manner. During this period there was seldom good news to deliver to a client. The advice was either bad news or terrible news and I learned that society only has a limited capacity to receive bad news.

Most building disputes involved many issues of varying complexity. Experts under time or budget pressure were more inclined to deliver all evidence to the minimal level demanded by the simple issues rather than give the complex issues the depth or explanation necessary to properly satisfy the court rules. Evidence tended towards a mile wide and an inch deep when some issues demanded a mile deep and an inch wide.

Trading of opinions without quantitative support became common.

Deep pocket parties bearing a high proportion of costs was an issue as were allegations of less solvent parties being financially exhausted by deep pocket parties. The merit of joint and several liability was questioned resulting in a Law Commission review of “Liability of Multiple Defendants” in a report in 2014.19

19 Liability of Multiple Defendants. Law Commission, report 132. June 2014


Expert practice deteriorated over time and experts wore the High Court Rules like a badge of honour but that did not equate with compliance. The High Court Rules are simple but not easy. To properly comply requires much time and independent review that was often not applied. I observed many situations were experts proudly proclaimed compliance that later proved to be hollow.

There were usually so many defects and so many parties involved that to properly comply with the Rules was a significant task. The prospect of 200 or 300 page witness statements is unappealing so pragmatism was sought. However, there is also no escaping the complexity of the situation. As most matters did eventually settle before trial and experts were under increasing time pressure the quality of expert witness statements declined.

There was often a conflict between the quantum of a claim and the evidence provided to address the issues. A small quantum only justifies a limited cost of resolution, but the quantum has no correlation with the complexity of the issue. The High Court Rules require a statement about qualifications or limitations of any evidence presented and there should be an open acknowledgement of any limitation of effort applied, rather than applying a limited effort and then pretending full compliance with the Rules.

The situation was inevitable, experts were working on many cases concurrently, pressured clients demanded ever increasing attention and service, the experts knew that the matter was never likely to see a courtroom so shortcuts were taken and this was both tolerated and sometimes demanded. To me this demonstrated that if bad habits arise in the preparation and use of expert evidence, in the expectation that the matter will settle and is unlikely to proceed to trial, then those bad habits will carry through into the courtroom in the few cases that do proceed to trial. In addition, those bad habits are likely to be an obstacle to the efficient and effective pre trial settlement of the case in a cost effective and timely manner.

Experts came to be used as bargaining chips in a negotiation process rather than the providing well investigated, quantitative, peer reviewed evidence fully compliant with the Rules.

If experts are to be used as bargaining chips, pedalling loose qualitative evidence, that reflects the position of the instructing party, then that may be acceptable to serve a negotiation process. However, we should not cloak this in the robes of compliance with the Rules of the Court. If evidence is labelled a “will say statement” that can go some way to remove the demands of rules compliance.

The problems occurred when the lines became blurred between evidence for negotiation and evidence for trial. Under the pressure of time, the difference usually meant changing the intituling of the document. If the matter did proceed to trial, the situation would become a problem for the Court.

A summary of the unsatisfactory trends in evidence is below;

1. At the beginning there were very few suitably qualified building experts and few experts with a knowledge in matters of dispute resolution.

2. Demand grew so rapidly that the size of the problem became greater than experts or the litigation system could manage.


3. The law was complex, the building issues were numerous and complex, homeowner emotions and urgency were extreme and this placed impossible constraints on evidence production.

4. Experts adopted a shallow level of evidence. Compliance with the rules of evidence was claimed but evidence often fell well short. Trading of opinions without quantitative support became common.

5. Often minimal or insufficient investigations were undertaken. Sometimes investigation was intentionally restricted by clients either due to funding inadequacy, insufficient understanding or for strategic reasons.

6. Clients often traded lawyers, experts or other advisers seeking more favourable service or outcome.

7. As pressures built the benefits of early mediated settlement were lost. Costs to reach mediated settlements increased significantly.

8. Experts came to be used as bargaining chips in a negotiation process rather than the providing well researched quantitative peer reviewed evidence fully compliant with the Rules.

9. Experts were often chosen for known or extreme views and balanced views were lost to the process.

10. Limitations of evidence were often not stated.

These times may be considered as extraordinary in New Zealand history, unlikely to be repeated and not worthy of detailed review. Reflecting to consider whether the response was adequate and what could have been done to improve the situation is very important. The situation did highlight that we were not prepared for such a crisis and adopting practices from other countries to strengthen our dispute resolution practices would have been advisable.

Had more light been shone on the dispute resolution process then we may have been more prepared for the next similar problem. The Christchurch earthquakes have brought about many insurance disputes and highlighted structural deficiencies with often a complex mixture of earthquake damage and pre earthquake defects. This has generated a similar demand on experts and dispute resolution services.


Is the system broken generally?

The explanation above about the resolution of building defect disputes can result in a number of conclusions. In my view, the mechanisms available to resolve the disputes were not capable of responding effectively to the circumstances. Even if the Courts and WHT were capable of accommodating the demand there needed to be development of the rules of evidence to obtain better value from experts.

This was only one sector however and I will now turn to the wider areas of concern over expert evidence. There is a vast volume of material on the subject of inadequacies of expert evidence and law of evidence reform. I do not propose to make an extensive analysis here because such a task needs the resource of an inquiry.

There are generic issues that may render a witnesses evidence less helpful and then specific issues arising in a particular jurisdiction or subject area.

Bias

Bias is the enemy of all experts. There are many forms of bias that must be divided into two overall categories, conscious and unconscious. There are many known biases20. While conscious biases are more easily detected, subconscious biases reveal themselves in action, particularly under stress.

Experts are likely considered to hold a bias for no other reason than the fact that they express views that are consistent with the interests of their client. Indeed, if they did not have anything helpful to say regarding their client’s case, then they would not be called to give evidence at all. There is a view that the adversarial system and party appointment of experts is predisposed to selecting only experts holding the most extreme views rather than moderate more representative views.21 This has been a significant feature of building disputes where often experts have been selected for known or extreme views.

However, extreme views may be correct and should not be discounted merely because there are many opposing views. The number of similar opinions obtained should not be the determining factor in reaching the truth. Weight of numbers has also been a tactic employed in building disputes.

The control over selecting experts that hold favourable views is supposed to be tempered by the rules that require statements indicating limitations, assumptions or omissions from the evidence however such rules were not effective for reasons that I will outline shortly.

The other problem with bias is that two experts reaching the different conclusions about the same situation may automatically be interpreted as bias on the part of one of them. The rules of physics are the same everywhere but that does not mean that all interpretations will be the same. An assumption of bias may arise because an expert has not had the freedom to properly investigate the case or present the information in a manner that commands professional respect.

20 The impact of neuroscience and neurobiology on ADR practice. Dr Paul Gibson. Paper to AMINZ – IAMA Conference 2013.

21 Expert for Whom? Court Appointed versus Party-appointed Experts. Stidbeck et al. Psychiatry, Psychology and Law, 2016. Vol 23, No 2 246 -255.


I have long advocated a team approach to a case involving client, lawyer and expert. This promotes communication of expectations, time limits, budgets and understanding of key issues to address. However, humans are social animals who like to be part of a group. There is a natural tendency to want to be a part of the team and falling into the familiar and friendly business relationships can interfere with detached objectivity. Clients and lawyers also want to be on friendly terms with an expert to encourage the most favourable view of their situation.

Complexity

Bias aside, there is also the issue of scientific complexity demonstrated by the NIWA case of 2012 that involved the judicial review of the publication of climate data raising questions about the limits to which scientific matters should be reviewed by the Courts.22 The NIWA case highlighted that the combination of technical complexity, partisan experts and endless detail can make an adversarial system an inappropriate forum to resolve some scientific disputes.

This problem is also present in building disputes. In cases involving many diverse issues time is often wasted because parties use delay and distraction as tools in an adversarial process.

Surveys in the United States have indicated Judges insufficient understanding of evidence and even fundamental scientific principles,23 however in my view the problem is not about capacity of judges to understand complexity but rather the adversarial system is a barrier to the clear presentation of issues. In my experience some experts cannot express complex issues in a clear manner but, other experts will often express matters in an indirect manner to avoid drawing attention to limitations of their clients case.

There has been controversy over the Daubert decision in the United States because it places an obligation on Judges to determine the merit and credibility of scientific evidence. This is thought to be inappropriate within an adversarial system with all of the distortions that such a system creates.24

Courts in New Zealand have stepped carefully around this issue and have avoided imposing their own assessment onto scientific matters.25 Several cases have considered the availability of judicial review over SOE’s or CRI’s however the circumstances have all been quite distinct and it seems there are divergent views in New Zealand about the concepts of deference or partial justicability.26

22 Can’t See the Science for the Solicitors: Judicial Review of Scientific Reseach in Light of NIWA’s

Case. Laura Hardcastle. New Zealand Journal of Public and International Law. (2014) 23 22 Above at 306. 24 22 above at 305 - 307 25 New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric

Research Ltd [2012] NZHC 2297 1 NZLR cited in 18 above. 26 22 above 312 to 317


Quantitative vs Qualitative

There are vast differences in the type of science that may come before a court and different branches of science and technology involve different methods of assessment and levels of certainty. Some technical or scientific fields place higher reliance on professional judgement or experience.

Climate science or DNA sequencing are clearly scientific endeavours more suited to quantitative definition. On the other hand there is a different kind of science underpinning engineering and building. Some areas may be regarded as technical rather than scientific although there is a place where that distinction is blurred.

Pressures of time and cost in dispute resolution can militate against the pursuit of quantitative evidence. Opinions are often sought without allowing for the quantitative support that would be desirable. In the building field evidence has, at times, degenerated into a loose trading of opinions without substantive backing.

While an expert can offer opinion evidence, that evidence is more compelling if it is backed by some level of quantification, measurement and data. The absence of such evidential support only serves to strengthen perceptions of bias and may be of significantly less assistance to the court.

Henderson and Seymour

Possibly the most compelling New Zealand analysis of expert evidence involves a University of Auckland, Law Foundation sponsored, study principally focused on criminal and family trials.27 While the report was limited in numbers of experts interviewed, the 27 experts were all medical practitioners working in the field of criminal law and child abuse cases. The report was a comprehensive study of the issues involved in this sector.

Their literature review identified 6 principle headings of concern over the adequacy of expert evidence in criminal cases.

• flawed expert evidence is being presented to courts, including flaws resulting from deliberate dishonesty, incompetence and / or bias;

• juries and also judges may not notice the flaws in expert evidence;

• regardless of the quality of the evidence, juries especially may be overwhelmed by the authority or charisma of the expert and allow the expert to usurp their function as fact finders;

• the traditional safeguards of the adversarial trial are insufficient to notify the judge or jury as to the flaws in expert evidence;

• the sufficiency of the adversarial model of trial in its dealings with expert evidence;

• the treatment of expert witnesses by the courts and by lawyers.

27 Expert Witnesses under examination in the New Zealand Criminal and Family Courts, Emily Henderson and Fred Seymour, March 2013


The report found that;

US and Australian research suggests that not only jurors but judges have difficulty in assessing some expert evidence. More research is needed to verify if this research applies to New Zealand judges. There is an equal concern but even less research about lawyers ability to recognise when expert evidence is flawed or not.

“The evidence is that the traditional safeguards of the adversarial trial may be insufficient protection against questionable expert evidence”.

The experts were well aware of the High Court Rules and their obligation to the court.

Almost all experts in the study dislike appearing in court and are highly reluctant to undertake work as expert witnesses. Five specific reasons were cited that may be summarised as a general view that the adversarial process is ineffective at getting to the most important facts and is often degrading to the expert.

Experts were all concerned about the presence of “hired guns” or experts pushing barrows unsupported by science. The experts all conclude that they felt the need to be highly proactive to manage their own evidence to help to cope with the court system. (My own attempts to proactively manage my own evidence have sometimes been viewed unfavourably by the instructing lawyer).

The experts were disillusioned with the current process and saw the need for multi – systemic reforms including reforms that “would reduce the extent to which experts are made part of the adversarial battle”.

Besides the 27 experts questioned there were 7 lawyers included in the study who work in the same sector. Interestingly the lawyers acknowledged the issues raised by the experts and supported reform and “all were remarkably open to the implementation of quite radical measures”.

The study closely mirrored my experience in civil jurisdiction. Comparing and contrasting this to the civil jurisdiction and in particular the building and construction sector adds another dimension that should be further examined.

Weathertight Homes Tribunal

Trish McConnell, Chair of the Weathertight Homes Tribunal, has listed numerous areas of conflict that have arisen with experts during the hearing of Tribunal claims28. These include, but are not limited to, the following and I have only listed the ones that I have also personally observed.

1. Giving evidence largely based on hearsay or information provided by a client.

2. Evidence is based on purposefully incomplete or minimal investigations.

3. Evidence is biased towards the party that instructed or paid the expert.

28. Current issues in leaky home litigation / Experts in the Weathertight Homes Tribunal. Presentation to Society of Construction Law 2014.


4. Where a client instructs an expert to act contrary to the Code of Conduct or Tribunal directions.

5. Where an expert is primarily retained by the one party in all cases.

International Responses

The United States National Research Council have undertaken blind studies of psychologists and Psychiatric forensic experts and concede that party appointed experts are bias towards their appointing party.29

Surveys of Australian judges indicates that they have observed significant partisanship by expert witnesses. They are concerned about a culture of inadequate objectivity and insufficient clarity of explanation. Many Judges report not understanding expert evidence put before them or difficulty evaluating opposing opinions.30

Australian Judge HD Sperling says that judges have been complaining of the problem for a long time and that with questions of bias or honesty put aside, the adversarial system is calculated to bring together unrepresentative opinions.31

The problems seem to be significantly mitigated in Norway, a country that has a more inquisitorial legal process but where experts are generally court appointed. Norway has few rules and restrictions around expert evidence but has other control mechanisms. One such control is the National Commission of Forensic Medicine established in 1900. All evidence related to forensic medicine must be sent to the Commission who review the evidence. The Commission is able to require that defects or errors are rectified so that all evidence presented to the court has been independently peer reviewed.32

In the field of international arbitration, the use of party appointed experts has the added challenge of the absence of state court rules. The Uncitral model law of international arbitration imposes rules and obligations upon the conduct of arbitrators but is silent on many of the expectations that may be placed on experts.33 However reforms of expert evidence in the UK and Australia have promoted a review of the International Bar Association Rules of Evidence and the Chartered Institute of Arbitrators Protocol.34

One extensive review of the rules for experts in international arbitration suggests that the IBA or CIArb rules may be insufficient in themselves and recommends several additional controls. These include the active case management of expert evidence by the arbitrator, supplementation of obligations by additional more detailed rules and reliance on ethical duties imposed by expert professional bodies.35

29 21 above at 247 30 21 above 247 - 248 31 21 above 248 32 21 above 249 33 A Code of Conduct for Party Appointed Experts in International Arbitration- Can One be Found? Mark

Kantor; International Arbitration, Volume 26 Issue 3. 34 Party Appointed Expert Witnesses in International Arbitration: A Protocal at last, Doug Jones

Arbitration International Vol 24 No 1. 35 33 above 374


Experts

While much commentary on expert evidence is provided by legal practitioners some of the most valuable insights come from experts working in forensic investigation. Andrew McGregor has undertaken an analysis of modern accident causation theories and examined disasters of modern times concluding that the adversarial legal process is not always suited to either examining major organisational failure or preventing reoccurrences. Drawing on principles of organisational accident analysis he further concludes that the concept of Tort can add proximity limits that may discourage latent defects from being considered at the front end of the failure timeline and factored into conclusions of causation.36 This does not help to prevent recurrences and is therefore not in the public’s interests. Therefore the adversarial legal process may not always be appropriate for the determination of causation.

Dr Sean Brady, an Australian Engineer, highlights common failures of the forensic investigation process, how this can entirely skew findings and, by inference, make engineering evidence less accurate for dispute resolution purposes. This further brings into question the ability of lawyers to recognise and seek out robust forensic analysis rather than seeking an expert who holds an extreme view of the proposition they seek to prove.37

A case study

The case of Young v Tower Insurance Ltd, a judgement of Justice Gendall in the High Court of Christchurch in December 2016, is a helpful case study in the context of expert evidence. 38 This case attracted some media attention but was an unremarkable case. There was no significant law involved, it was a dispute of fact and contract interpretation.

Mr Young, the home owner architect and plaintiff, made six accusations against Tower including expert shopping, deliberate delays, not acting in good faith, concealing material evidence and changing position causing delay. It is a case that took six years from the lodgement of claim to a decision in the High Court and the High Court process was a relatively quick part towards the end of that six years.

Mr Young owned a complex multi-level house on a steep site that was severely earthquake damaged. Tower proposed to repair the house and Mr Young sought a complete rebuild. The Court was required to decide whether the repair proposal was within the terms of the insurance contract.

There were two tests to determine whether the repair was within the policy terms; firstly that the methods used for the repair were commonly used methods at the time of loss or damage and secondly, whether the damage was economically repairable.

36 Calamities, Corrosion, Leaky Buildings and the Law Andrew McGregor presented to AMINZ

conference 2016 37 The Structural Engineer as Expert Witness - Forensics and Design; Dr Sean Brady presented to

Construction Law Society August 2013 38 Gregory Peter Young and Malley &Co Trustees Limited as Trustees of the MCARA Young Trust v

Tower Insurance [2016] NZHC 2956


The Court found that the methods proposed were not commonly used and included a significant amount of risk and uncertainty. The Court further found that there was uncertainty over whether the repair method was economically viable, there being significant risks and uncertainties of costs. So the Court found that

“the repair would not meet the relevant policy obligations such that the defendant (Tower) cannot insist on a repair over a rebuild”.

The case raises two important questions: Firstly, why did it take six years and require the considerable expertise and wisdom of the High Court to resolve the matter and secondly, why did Tower hold out for a repair option that was only nominally cheaper than a rebuild and that was found to be outside of their policy obligations.

In my view there are four principal reasons why this took six years to get an answer rather than actually place the insured back in a remediated home:

1. Technical complexity

2. Emotional complexity

3. Volume of claims, and

4. Due to factors 1 – 3 above, a tendency for distressed home owners not to trust insurers.

Mr Young’s lack of trust was vindicated, so why did Tower hold out for the repair option? In this case at least, it appears that the answer does not lie with the experts. The Court had no criticism of the impartiality or professionalism of any of the experts involved. Even though in the Court’s words, there were various “ill-intentioned” accusations levelled against experts.

However, why did the promoter of the repair option for Tower, hold out for his repair when it was somewhat novel, high risk, contained cost uncertainties, and ultimately the cost was not much less than a full rebuild and ultimately outside of the insurer policy obligation. The answer seems to rest squarely with the inadequacy of the adversarial system to efficiently process technical disputes. This was a technical matter that should have been easily solvable without the considerable expense of a full trial but instead the adversarial process allowed a technical matter became smothered in legal process when there was very little law in question.

This case serves to demonstrate the fraught environment in which experts work, the situation is adversarial and can be extremely polarising. The advocates for the parties are strongly invested in winning. Experts are often selected because they hold views supportive of the advocates position. If the expert changed their mind on the basis of developed knowledge then this is likely to arise long after proceedings had begun. For an expert to change their mind at that time would attract the wrath of his client and instructing lawyers. He could be more equivocal and more balanced but the consequences could be very unpleasant and not well accommodated by an adversarial system.


Having been selected for the views that the expert presented, the expert was probably not inclined to re-evaluate his position on the basis of new information but even if such reflection did occur the system would have severely punished the expert for changing his mind.

Perhaps there was insufficient evidence available on cost and buildability because the parties were so strongly invested in their positions and did not want more evidence presented. The Judge did comment on the limited options on quantum available.

It would be fair to conclude that it was the process rather than the conduct and professionalism of experts that was the barrier to this matter settling in a faster and more cost effective manner.

Reform

I will now turn to looking at options for improvement. In my view, if there is a large scale disaster or calamity that generates large numbers of disputes then an adversarial system is either not appropriate or needs substantial modification from what we currently have to be suitable as an effective dispute resolution mechanism. In the absence of such a calamity there still needs to be development of the law and some fundamentals of policy to be reviewed. Following are some of the potential mechanisms.

The Hot Tub

There is popular demand to hear about hot tubbing as a process. Hot tub process, if done properly, is a useful tool that challenges experts and gets to the truth more efficiently. However the hot tub process is wholly insufficient, in itself, to make substantial improvements in the usefulness of expert evidence. So an exclusive focus on hot tubbing as a solution is misplaced.

One commentator places the origins of hot tubbing as developing in the 1970’s at the Australian Competition Tribunal.39 Another credits the origins of the hot tub method back to Stanley Sklar whose article “Innovations in Arbitration : Using tandem witness examination when experts collide”, began a process that later became known as hot tubbing.40 There may be varying procedures, but general process includes the following:

1. The experts are sworn in together.

2. Each expert presents a brief summary of his/her key findings on the disputed issues.

3. Each expert comments on the other parties’ opinions (if a joint expert report has been prepared, the only opinion that will be presented are those on which the experts differ).

4. Each expert may ask questions of the other.

5. The claimant’s counsel will then identify the issues and cross-examine each expert in turn.

39 Into the Hot Tub a Practical Guide to the Alternative Expert Witness Procedures in International Arbitration. Kao et al. Published by the International Bar Association.

40 Using Experts Effectively and Efficiently in Arbitration; Patricia Galloway Dispute Resolution Journal August / October 2012


6. The experts may again comment on answers provided.

7. The respondent’s counsel will then cross-examine each expert in turn.

8. The experts may again comment on the opinions presented.

9. The Court or Tribunal may ask questions at any time.

Australian courts use this method and it is authorised by Rule 31.35 of the Uniform Civil Procedures.

For hot tubbing to be successful requires several conditions;

A prerequisite to the hot tub process should be a facilitated joint expert meeting and the preparation of a joint expert report on matters that are agreed. This became a feature of the Weathertight Homes Tribunal procedure. This was generally successful and helpful in my experience.

A further prerequisite to hot tubbing should be acceptance of the principal that experts cross examining experts is often far more useful than lawyers cross examining experts. Hot tubbing must not be regarded as simply concurrent cross-examination, but actually a replacement for the traditional cross-examination process.

Procedural realism

Some issues require more thorough investigation than others. Jim Farmer QC laments at the unnecessary cost of litigation and says;41

“the hourly rate discourages efficiency and hinder the lawyers’ ability to focus on the essential and to cut corners where they should be cut. It encourages a “kitchen sink” approach to litigation and the attainment of apparent perfection – every “t” crossed and every ‘i’ dotted – when that is neither necessary nor desirable.

This does not mean that experts should cut corners or do less than robust investigation but rather that responses to disputes need to be “right sized” for the situation. There should be a mechanism to distinguish between issues of varying importance because full application of the rules of evidence may not be equally justified for all issues. This is particularly important in building related disputes where there may only be 3 main causative defects but an expert is compelled to list every defect present to avoid criticism of inadequacy of investigation.

There should be an open acceptance that the quantum of some disputes justifies an expedited process that is less than comprehensive and so the thoroughness of the evidence may be reduced. This is still applicable to the High Court where the costs of the process can easily exceed the quantum claimed.

41 The Increase in Unrepresented Litigants and Their Effect on the Judicial Process; James Farmer QC (http://www.jamesfarmerqc.co.nz)


Without such mechanisms there is a pretence of compliance with the rules at all times, that is often not justified nor complied with.

Clauses 4 and 5 of the High Court Rules state;

4 If an expert witness believes that his or her evidence or any part of it may be incomplete or inaccurate without some qualification, that qualification must be stated in his or her evidence.

5 If an expert witness believes that his or her opinion is not a concluded opinion because of insufficient research or data or for any other reason, this must be stated in his or her evidence.

In my experience many lawyers resist such qualifications. They want certainty. They do not want an acknowledgement to be made that there is something incomplete of uncertain about the evidence. In an adversarial environment lawyers do not want to open the door to challenge even if the limitations of the evidence are reasonable in the circumstances.

Essentially, there needs to be an acknowledgement that not all disputes can justify a “kitchen sink” or “no stones unturned” approach and the Rules should accommodate that reality.

There is evidence in literature that there is an unspoken acceptance that party appointed experts will support their clients position. In the building and construction sector few experts ever express anything that is not supportive of their clients position and this is unrealistic. In Maritime Union of New Zealand v TLNZ Ltd 200742 the difference between persuasive/party supportive opinion evidence and opinion that amounts to advocacy is acknowledged and accepted but the situation prevailing at present where experts do not say anything that is not supportive of their client is unrealistic.

More judicial involvement

Justice Kos made the case for more judicial involvement in case management to assist with the problem of unrepresented litigants. Such an approach would also greatly assist with improvement of expert evidence.

At present there is no acid test of compliance with High Court rules until the trial begins. That is too late. It allows a rot to set into expert practice in the expectation that the evidence may never see a courtroom or come under judicial scrutiny. Experts can easily fall into advocacy and in the context of disputes that routinely settle before trial, advocacy can become routine and an unspoken expectation.

More detailed judicial case management could referee the expert evidence production process, audit evidence in advance and make early checking for compliance. This would give the expert a sense of accountability to the Court and encourage an expert to resist overt and subtle pressure from instructing lawyers and clients.

42 10 above at page 118


Any process of more detailed judicial case management must involve direct connection between experts and the judge appointed to case management if there is to be any improvement in expert evidence.

Specialist courts and tribunals

Specialist Courts are highly desirable for the building and construction sector due to the volume of disputes and the specialist nature of the evidence. In addition, there are many disputes that do not justify the costs of current process so this incentivises people taking dispute resolution into their own hands. The hazards of justice being inaccessible or to have the perception of inaccessibility is recognised by senior members of the judiciary and more specialist courts would help to address this concern.

Examination of how Australia has approached building disputes is helpful. They have a multi layered approach. Before accessing the Queensland Civil and Administrative Tribunal parties are required to participate in a dispute resolution process with the Queensland Building and Construction Commission (QBCC).

This promotes a process where dispute resolution professionals can be brought into the process of resolving disputes so that the first step is less onerous than a case heard in the District Court.

The Weathertight Homes Tribunal was a limited scope service available for a limited time. Reconstituting this service as part of the District Court but as a prerequisite to proceeding to a District Court process is worthy of consideration.

Immunity

Experts still have immunity in Australia, New Zealand and Canada however the English Supreme Court lifted immunity and many American states have removed immunity from experts. My view is that abolishing immunity simple opens the door for more legal process and makes experts targets for litigation that will have an adverse effect on their behaviour. Suing the experts only makes an adversarial process worse and more costly. There are other more effective ways to improve expert evidence.

Strengthen the rules

As a matter of course, development of the rules of evidence is a matter that should be considered however that is a detailed matter that cannot be canvassed here. At present there is neglect of the rules of evidence that is going unchecked so any rule development needs an equal monitoring and enforcement regime.

However, reliance on rules alone will be insufficient to address the inadequate situation that prevails today.

A Daubert Test

Different tests are applicable to different areas of expertise. Some branches of science work in nanometres but in other fields of expertise such accuracy is neither possible nor desirable. Engineering, building and construction expertise, in the field rather than in the laboratory, relies on judgement as well as science. The current Daubert test is only suited to some fields of knowledge.


A Daubert test for New Zealand has merit but to be useful it needs to include a suite of tests each aligned to different fields of knowledge.

Sachs Protocol

The Sachs Protocol is a process promoted for arbitration where a tribunal selects an expert from each parties list of experts to sit on an expert panel. The panel is accountable entirely to the tribunal and paid out of a pool of funds provided by the parties.

This is similar to the court appointed expert process that is common in Norway and that could be more widely adopted elsewhere.

Reliance on professional bodies

Kantor says that reliance on the ethical duties to professional bodies should be a tool relied on by international arbitrators.43 That is satisfactory so long as those professional bodies understand that reliance and have appropriate procedures in place to manage the conduct of members. Professional bodies who primarily protect their own members would not serve this purpose well.

A significant barrier to reliance on professional bodies is confidentiality. In the hundreds of cases that I have observed, conduct of some professionals has clearly been unacceptable and a causative factor in the failure in dispute. However, confidential settlements are reached and the respective body may never hear about the conduct of the member in question.

Shadow experts

A practice in America involves engaging “consulting experts” and “testifying experts”. Consulting experts may be called ghost experts because their advice is subject to privilege. Peer review is effectively the work of a consulting expert and must be both encouraged and expected.

No evaluation of the merits of ghost experts is complete without considering the rules of privilege. In my view experts are seldom knowledgeable about the rules of privilege. Greater transparency and wider understanding about the rules of privilege would be helpful for all parties.

My view is that some rules of privilege are necessary because an absence of rules would precipitate even less candid discussion between lawyer and expert. In addition, an experts view of a problem evolves over time, as further evidence comes to light, so to provide full disclosure of earlier advice that is no longer relevant may be problematic.

The value of consulting experts would be eroded however if they become a mechanism to pressure the testifying expert to limit or direct their evidence in a particular way.

This subject is also related to right sizing. Simple or lower value cases need less rules so that legal process does not smother the essence of the dispute. In these situations full disclosure should be encouraged to simplify the process. There should be no harm in an expert fully explaining the evolution of their views on any matter.

43 33 above


Fees

There are many conflicts over fees, (or effectively the time invested in the case). A lawyer wants to conduct a case in a manner that preserves sufficient client funds to fight the case to success. But who decides how much client funds should be directed to legal fees as opposed to expert fees? Investigation is an iterative process so the expert may not know what is involved at the beginning before any substantive investigation is done. As more investigation is done, more can be discovered. As conclusions are drawn the implications of situations become clearer. An apparently simple problem can become complex although a good expert will reduce a complex problem to simple explanations.

I have seen many problems in the area of fee allocation. Many cases have become bogged down in considerable legal process, expending extensive fees in legal costs without contributing to the development of evidence that is the essential reason for the dispute to exist.

Equally, I have observed lawyers instructing an expert to do no work in an expectation that they will be able to settle the case before incurring significant expert fees. When that plan is unsuccessful an expert can be put in a position of conducting investigation at the last minute and without sufficient time to do the work properly. Myself and colleagues, in New Zealand and overseas, have all experienced unexplainable delays to the instruction of the expert until the last minute. There seem to be a variety of reasons for such delay but inevitably this does nothing to improve the quality of the evidence available.

If there is concern about experts exceeding expectations of reasonable fees, this is best managed by thorough and regular communication between the parties. Even though an expert may not know the likely fee cost at the beginning because it may be impossible to develop a reliable fee estimate before an investigation is done, regular updating and communication of expectations can make matters properly manageable. Leaving the instruction until the last minute as a mechanism to control fess is not an acceptable method because it compromises quality of work, that may be perceived as lack of skill or integrity of the expert, resulting in a loss for both expert and client.

It seems that the expending of appropriate time / fees for the situation at hand, both legal and expert, may be best moderated by a regime of increased judicial involvement in case management.

Separating quantum and liability

Expert costs determine quantum and legal fees determine liability so the separating of the two aspects of a case can be helpful and save considerable time. Separating technical issues and quantum from liability is vigorously resisted by defendant lawyers but again increased judicial case management can moderate an appropriate decision on such a division.

Less adversarial more inquisitorial

The theme that emerges in most of the matters addressed is that the adversarial process is a barrier to the provision of just, speedy and inexpensive determination of disputes. Introducing more inquisitorial process requires more judicial case management and a sea change in the way disputes are resolved. An inquiry into the function of such a process is


desirable. At least, some disputes or disasters should first be directed into an inquisitorial process before entering an adversarial process.

The Young case study is an example that could have been solved in less overall time and cost by a less adversarial process.

Conclusion and principles for expert evidence reform.

This paper is only a small representation of the views and literature that exist about the current inadequacy of expert evidence. There is surprising consensus reaching to the highest levels of the judiciary and traversing many countries that improvements are necessary. Reforms have been undertaken in some countries but questions remain about whether those reforms go far enough.

The evidence indicates that the High Court objectives of just, speedy and inexpensive determination are not assisted by the current process surrounding expert evidence. In the building and construction field much expert evidence is currently nothing more than a tool in a commercial negotiation process that does not address power imbalance, cost, time or access to justice. In other fields of evidence the literature is unequivocal and compelling that reform is needed.

Inevitably the issues surrounding expert evidence are complex and cannot be resolved quickly or easily. The following principals are offered to help guide reform.

1. The adversarial process is a barrier to attaining just, speedy and inexpensive dispute resolution. An adversarial approach does not fit every problem. Room must exist for inquisitorial process.

2. Current dispute resolution processes are not suited to resolving large numbers of disputes arising from natural disasters or industry specific systemic failures.

3. Accept that different scientific and technical fields need different approaches to measuring the quality of evidence. Some areas need quantification and others more judgement and opinion.

4. Determine first the proportion of legal issues to expert issues and then ensure that legal and expert resources are allocated appropriately.

5. Rules have little value if there are no checks on compliance. A graduated system of evaluating expert evidence before it reaches a courtroom is desirable.

6. Greater investment in judicial case management and inquisitorial process is likely to reduce the overall cost of justice to society.

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