Role of Expert Witnesses in Arbitration

Expert witnesses continue to play an important role in the resolution of disputes in a wide range of industries such as personal injury, construction, engineering and information technology.

Part 35 Expert and Assessors of the Civil Procedure Rules defines an expert witness as “a person who has been instructed to give or prepare expert evidence for the purpose of the proceedings”. The expert witness has exactly the same role, duties and responsibilities in arbitration as in court proceedings.

It is important to draw a clear distinction between a witness and an expert witness. A witness confines their evidence to matters of facts whereas an expert witness can provide his or her specialist opinion in order to assist the tribunal's knowledge. It is essential that the expert witness is specially qualified by reason of special study, or long specialized practice, in the subject upon which they are to offer their opinion to the tribunal.

It is the duty of an expert to help the arbitral tribunal on the matters within their expertise. This duty overrides any obligation to the person from whom they have received instructions or by whom they are paid. Expert evidence should be the independent product of the expert uninfluenced by the pressures of arbitration. An expert should assist the tribunal by providing objective, unbiased opinion on matters within their expertise and they should not assume the role of an advocate.

The expert witness must consider all material facts, including those which might detract from their opinion. An expert should make it clear when a question falls outside their expertise and when they are not able to reach a definite opinion. If after producing a report, an expert changes his or her views on any subject matter, such change of view should be communicated to all the parties without delay and when appropriate to the tribunal.

Where there are two respectable schools of opinion, an expert when preparing their opinion for a tribunal should make this clear. Where an addition or qualification is required in order to present a complete and balanced opinion, an expert should make the addition or qualification when preparing their opinion for a tribunal.

In the case of party-appointed experts, the expert report must contain a statement of independence from the parties, their advisers and the tribunal. Other elements of the report include a statement of the facts on which the opinion is based, the expert's opinion and conclusions including a description of the methods, evidence and information used in arriving at the conclusions, and an affirmation of belief in the opinion expressed.

No comments:

Powered by Blogger.