As a Chartered Quantity Surveyor and Expert Witness specialising in quantum disputes and professional negligence claims involving Quantity Surveyors, Contract Administrators and Employer’s Agents, I frequently encounter issues concerning the standard of professional services provided within the construction industry.
My work regularly involves disputes arising from cost management, procurement, contract administration, valuation, certification, financial reporting and project delivery. In many of these matters, expert evidence plays a central role in assisting tribunals and courts to understand complex technical and commercial issues.
One aspect of expert witness practice that has attracted increasing attention in recent years is the use of assistants in the preparation of expert reports. The modern Expert Witness rarely works entirely alone.
In increasingly complex disputes, particularly those involving substantial quantities of documentation, technical analysis, delay assessments, valuation exercises or quantum calculations, the use of assistants is often both sensible and proportionate. Indeed, the RICS Practice Statement Surveyors Acting as Expert Witnesses, CPR Part 35 and the Civil Justice Council Protocol for the Instruction of Experts to Give Evidence in Civil Claims all recognise that experts may utilise assistants in the preparation of their evidence.
However, whilst the use of assistants is entirely legitimate, the professional obligations that accompany their use are sometimes overlooked. The issue is not whether assistants are used.
The issue is whether the appointed expert remains responsible for the work undertaken, whether those carrying out delegated tasks possess the appropriate qualifications, skills and experience, whether the expert has properly supervised that work and, perhaps most importantly, whether the expert has been sufficiently transparent about the involvement of others and the extent to which their work has been relied upon.
The Expert Is Appointed, Not the Assistant
An Expert Witness is appointed because of their own expertise, experience, qualifications and professional judgement.
The tribunal places reliance upon the expert’s opinion, not upon the individuals working behind the scenes. This distinction is fundamental.
Whilst certain tasks may properly be delegated, the expert’s independent opinion cannot be.
The Civil Justice Council Protocol reinforces this principle by emphasising that expert evidence must represent the expert’s own independent opinion. Similarly, the RICS Practice Statement makes clear that expert evidence must be the expert’s own independent and unbiased product, founded upon their expertise, experience and knowledge.
As Home and Mullen observe in The Expert Witness in Construction, the role of the modern expert extends far beyond simply expressing an opinion. Experts are expected to investigate, interrogate and analyse the evidence before reaching conclusions. They must understand the material upon which they rely and be able to explain and justify it if challenged.
The use of assistants may assist in the gathering, organisation and analysis of information, but it does not transfer responsibility for the conclusions ultimately reached.
Ultimately, the report bears the expert’s name, the expert signs the declaration and statement of truth, and the expert is the individual who must defend that evidence under cross-examination.
Competence Matters
The RICS Guidance recognises that work may be undertaken by individuals other than the appointed expert. However, this raises an important question:
Are the assistants undertaking the work suitably qualified and experienced to perform the tasks delegated to them?
The answer should never be assumed. Delegation should be based upon competence, not convenience.
A junior assistant may be entirely capable of undertaking document management, data extraction, measurements or administrative support. More complex analytical tasks may require a significantly higher level of technical knowledge, professional judgement and industry experience.
The greater the significance of the delegated work, the greater the importance of ensuring that the individual undertaking it possesses the necessary expertise. After all, if the expert intends to rely upon that work in forming their opinion, they must have confidence not only in the outcome but also in the competence of the person who produced it.
The expert’s appointment is based upon their own qualifications and experience. It follows that any work delegated to others must remain under the expert’s direction, supervision and control.
Supervision Is Essential
The use of assistants does not reduce the expert’s responsibilities. If anything, it increases them.
The RICS Practice Statement requires transparency regarding work undertaken by others and whether that work was carried out under the expert’s supervision.
In practice, this means the expert should direct the work, define its scope, review the results and verify the conclusions before incorporating them into their report.
The expert must remain sufficiently involved to understand and explain every aspect of the work upon which they rely.
Home and Mullen emphasise the importance of the expert’s investigatory role and warn against experts becoming detached from the underlying analysis. An expert who simply adopts work prepared by others without sufficient scrutiny risks undermining both the credibility of their evidence and their compliance with their duties to the tribunal.
A useful question for every expert is:
Could I explain and justify this work if challenged under cross-examination?
If the answer is no, then the expert may have become too far removed from the evidence.
Transparency Is Not Optional
Perhaps the most important requirement is transparency.
The RICS Practice Statement requires experts to identify when another individual has undertaken work that has been used in the preparation of the expert report. It further requires disclosure of that individual’s qualifications, experience and expertise, the nature and extent of the work undertaken, whether it was carried out under the expert’s supervision and any implications that work may have for the evidence presented.
CPR Part 35 similarly requires experts to identify who carried out any examination, measurement, test or experiment relied upon and to disclose the qualifications of those individuals. These requirements are not administrative formalities.
They reflect a broader principle found throughout the RICS Practice Statement, CPR Part 35 and the Civil Justice Council Protocol: tribunals should be able to understand how an expert’s opinion has been developed, what investigations have been undertaken, who undertook them and the extent to which the expert relied upon the work of others in reaching their conclusions.
This is particularly important because the use of assistants is now commonplace across many expert disciplines. Transparency enables tribunals and opposing parties to understand where work has been delegated, whether those carrying out the work possessed the necessary expertise and whether the expert has genuinely exercised independent judgement over the material relied upon.
Transparency promotes confidence in expert evidence. A lack of transparency risks undermining it.
Protecting the Integrity of Expert Evidence
The use of assistants is not only acceptable; in many cases it is necessary.
Complex disputes frequently require teams of professionals working together to analyse large volumes of information within demanding timescales.
However, the principles remain straightforward:
- Use assistants where appropriate.
- Ensure they possess the necessary qualifications, skills and experience.
- Supervise and review their work properly.
- Disclose their involvement transparently.
- Clearly identify any work that has been relied upon in reaching your conclusions.
The RICS Practice Statement, CPR Part 35 and the Civil Justice Council Protocol all point towards the same outcome. Experts may utilise assistants where appropriate, but the expert must retain ownership of the process, responsibility for the evidence and accountability for the opinions expressed.
Transparency is not simply about identifying who carried out certain tasks. It is about enabling the tribunal to have confidence that the opinions presented genuinely represent the expert’s own independent judgement and that any work undertaken by others has been properly supervised, reviewed and verified.
The role of the Expert Witness is founded upon independence, objectivity and trust. Those principles do not change simply because others assist in the preparation of the evidence.
If anything, they become even more important.
The credibility of expert evidence depends not only on the opinions expressed, but on the transparency of the process by which those opinions were reached.
From my own review of expert reports over the past 18 months, I have seen a number of instances where the involvement of assistants appears to have been either inadequately explained or not disclosed to the extent contemplated by the RICS Practice Statement, CPR Part 35 and the Civil Justice Council Protocol. In some cases, assistants are identified but little is said about their qualifications, experience or the work they undertook. In others, there appears to be limited explanation as to whether the expert relied upon their work, or the extent to which that work was carried out under the expert’s supervision.
That observation raises an important question as to whether the profession is consistently applying standards that already exist, rather than whether additional rules or guidance are required.
I would be interested to hear the views of fellow Expert Witnesses, solicitors, barristers and claims professionals.
In your experience, is the disclosure of assistants, their qualifications, the work they undertook and the extent to which an expert relied upon that work being dealt with adequately in expert reports, or is this an area where the profession could do better?