1. It is becoming increasingly prevalent, in international arbitration and court proceedings, for opposing party-appointed experts to be directed to engage in discussions with a view to producing one or more joint statements that set out the matters agreed and/or not agreed between them, and if not agreed what the reasons for disagreement are.

2. Despite the practice becoming more commonplace, there has been little guidance on the role that legal representatives should play in this process.

3. Having clear guidelines would be particularly apposite and useful in construction disputes where the court or tribunal often needs assistance on a multitude of disputed issues between the experts on a significant number of difficult areas, on which there will likely have been a history of extensive engagement between the party, the expert and the legal representatives.

4. If the "rules of engagement" are unclear and/or parties take different approaches, the expert discussion and joint statement process risks becoming open to abuse, or at least risks becoming bogged down in disagreement and being unhelpful to a court or tribunal.

A possible starting point?

5. Given the dearth of guidance, the recent comments by the English Technology and Construction Court in BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) (“BDW”) will be of interest to legal practitioners and experts.

6. In BDW, the Claimant’s solicitors complained that it was quite inappropriate that the defendant’s expert had sent through a first draft of the experts’ joint statement to the Defendant’s solicitors for substantive comments, and made changes to the draft joint statement as a result of the feedback given by the Defendant’s solicitors.

  • 7. The legal bases of the complaint were as follows:

a. paragraph 13.6.3 of the TCC Guide, which states that:

"Whilst the parties' legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts' joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement.
Any such concerns should be raised with all experts involved in the joint statement."

b. Practice Direction to Part 35, which at paragraph 9 makes clear that:

"(1) The role of the legal representatives in expert discussions is limited to agreeing an agenda where necessary and, whilst they may attend the discussions if ordered or agreed, they must not intervene and may only answer questions or advise on the law.

(2) Experts do not require the authority of the parties to sign a statement, which should be done at the conclusion of the discussion or as soon thereafter as practicable and in any event within 7 days."

8. His Honour Judge Stephen Davies QC (“Judge”) agreed that the complaint was warranted. He observed that it would be “inappropriate” and a “serious transgression” for experts to seek substantive input from their client’s legal representatives on the content of a joint statement, or, for the legal representatives to ask experts to do so or to provide input if asked. There are some "exceptional" circumstances identified in the Technology and Construction Court Guide (“TCC Guide”) where this may be done, such as where there are serious concerns that the court may misunderstand or be misled by the terms of the joint statement1 , or where the experts' views are "infected by some material misunderstanding of law or fact". In such a case, these concerns will have to be raised "in the open" with everyone – the experts, lawyers, and even including the trial judge if the case proceeds to trial.

9. The Judge nevertheless concluded that the expert in question was genuinely unaware that his conduct was inappropriate, and did not cross the line into inappropriate or partisan advocacy.

Food for thought

10. As an initial point, it is worth noting that the Judge’s comments in BDW were based primarily on specific provisions of the English TCC Guide2 and the relevant Practice Direction to the English Civil Procedure Rules3. There are no equivalent guidelines or provisions in the context of international arbitration or in the Singapore Courts.

11. In international arbitration and as a matter of Singapore law, it is commonly understood that legal practitioners should not attempt to interfere or stand in the way of discussions, and potential agreements, between experts in seeking to arrive at a joint statement. However, instead of having specific provisions setting out what legal practitioners may or may not do4 , the relevant rules impose a more general duty on experts to remain impartial, objective and unbiased, and, to assist the arbitral tribunal or court rather than the parties which have engaged them5. To the extent that the conduct of the experts or legal representatives undermine this duty, the expert evidence given may be disregarded in whole or in part.

12. The rules do not prescribe what legal practitioner can or cannot, or should or should not, do, in the context of the preparation of joint statements and discussions leading up to joint statements.

13. On the one hand therefore, it might be considered that there is little basis for transposing the English approach, and it might be concluded that, subject to the general duties above, the role of the legal representative in Singapore may be a more interventionist one.

14. However and on the other hand, it may be hard as a matter of principle to justify a clear demarcation between the different fora:

a. First, it is unclear that there is or should be any principled distinction between the philosophies underpinning the Rules of Court in Singapore, the TCC Guide, English Civil Procedure Rules, and/or more generally practice in arbitrations seated in (or being heard in) Singapore or in England.

b. Secondly, it would be an unattractive proposition indeed, if experts and counsel were to have to switch gears depending on which forum they are stepping into.

c. Thirdly, it also seems clear that one key rationale that is common to all of the fora, is that experts should have the latitude to discuss the issues in the joint statement freely so as to reach agreement.6

15. One key consideration will be to facilitate the production of a joint statement that is of significant utility to the court or tribunal. In this regard, one might note the observations by Mr Justice Fraser, the current Judge in Charge of the Technology and Construction Court in England and Wales in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd (No.2 Quantum) [2018] EWHC 1577 (TCC) ("ICI"). In the quantum proceedings, Justice Fraser was critical of a joint statement prepared by the quantum experts that essentially comprised a recitation of each expert's view and was described as a "most unhelpful document”.

16. Justice Fraser reminded all and sundry that, "Not only experts, but the legal advisers who instruct them, should take very careful note of the principles which govern expert evidence7".

17. That experts should remain independent and non-partisan remains a cornerstone principle of both legal systems. Where there are clear principles which govern the giving of expert evidence that are common to both Singapore and England, it is unattractive to suggest that there may be a divergence in approach; or to suggest that the practice might differ depending on whether expert evidence is being given in the context of litigation, arbitration or adjudication proceedings.

18. There will also be considerations as to the time and cost, fairness and/or efficiency of the process. These are common drivers for proceedings whether in Singapore or England.

19. The comments in BDW and ICI may be regarded as indicative of the conduct which will be expected of legal practitioners and experts in situations where an arbitral tribunal or judge directs experts to produce a joint statement.

Implications

20. If the comments in BDW and ICI are accepted as guidance, this gives rise to a number of further questions and considerations which, in our humble view, are worth contemplating in more detail.

21. First, might the extremely limited role for legal representatives envisaged in BDW lead to the quality of the discussions between experts and, consequently, the quality of the expert evidence furnished before the arbitral tribunal or court being diminished or even compromised?

22. The rationale behind the near absolute bar to legal representatives being involved in the experts’ discussions and formulation of the joint statement appears to be due to a strong concern that the legal representatives may obstruct the process of obtaining objective and impartial the joint expert evidence.

23. While the rationale may, in certain scenarios, be justified, the rule may have unintended side-effects.

24. For instance, the lack of any involvement of legal representatives from either side may lead to experts going outside their remit to discuss and pronounce on issues beyond the parties’ pleaded cases; or, potentially, by basing their discussions on mistaken points of facts or law, leading to the wrong conclusions being drawn.

25. While it is open for these matters to be dealt with "in the open" by the parties with the involvement of the respective arbitral tribunal or judge, this is likely to lead to wasted legal costs and expert fees incurred and/or unhelpful joint statements which fail to properly deal with the key issues (which can then lead to even more expert fees being incurred to rectify the situation).

26. In complex construction disputes, there is a view that perhaps the multitude of expert issues, including necessary correlations with hotly disputed issues of fact and law to be determined, would be better charted by the experts and legal representatives in tandem rather than by the joint experts "flying solo". That may especially be so, given the likelihood that parties will have extensive regard to the technical advice provided by their experts in conjunction with the legal advice provided by their lawyers.

27. Further, there is the risk that an expert may be tempted to engage in ‘horse-trading’ without sufficient regard for whether the joint opinion is correct; be tempted to cut corners and accept positions because the other expert (possibly a senior well-regarded one) is strongly advocating the position; or, worse, capitulate under pressure to avoid being cross-examined on complicated points where it is easy to trip up. While the chances of these risks in fact materialising may be not be that common, these are conceivable risks given the pressures of modern dispute resolution practice. Having legal representatives facilitate and support the discussions between experts are a potential safeguard against such risks.

28. Second, whilst parties theoretically have the right to challenge the evidence eventually put forth in the experts’ joint statement if they do not agree with it, is this in practice an adequate safeguard of the parties’ interests?

29. This is because parties are often loath to challenge the agreed statements put forth in the experts’ joint statement directly for fear of discrediting or undermining their own experts. It is an uphill task, to say the least, to take on in cross-examination both parties' experts who are fully aligned on an issue. It is also unlikely that the party's expert will play devil's advocate and contribute actively to assist the lawyers in preparations to disagree with his own opinion. Even if such challenges are mounted, they are likely to be carefully considered and to be on issues with significant strategic value (and not necessarily on all the issues which the parties contend their experts are wrong on).

30. Thirdly, is there a heightened concern only when it comes to the preparation of joint reports, and if so why?

31. As stated above, the rationale behind limiting the role of legal representatives seems to be a strong concern that the legal representatives may be obstruct the process of obtaining objective and impartial expert evidence. However, it appears to be difficult to justify a clear distinction between the involvement of legal representatives in the preparation of individual expert reports as opposed to joint expert reports – in particular, why legal representatives should be allowed more freedom to be involved in the former as opposed to the latter. The concern and rationale surely applies with similar force to both types of expert opinion.

32. It might be said that in practice, any real incidents of material interference by one set of lawyers will usually be communicated across the line between the experts, and will surface to be addressed at the hearing, usually before a sophisticated tribunal or court who are well aware of the possibility of such scenarios (and not to mention opposing counsel who are all too keen to pounce on such issues). Correspondingly the risk of lawyers getting away with material interference is perhaps less of a concern than the risk of the side-effects highlighted above.

33. One could even argue that in cases where the lawyers have a greater level of involvement in the scrutiny of the experts' joint statement, it would follow that there is greater rather than less transparency in the process.

Conclusion

34. Given the increasing importance and prevalence of the process involving expert joint statements and discussions to agree them, and likely reliance placed by a court or tribunal on matters agreed between experts, the articulation of clear and specific guidance as to the role of lawyers (and in particular the location of the dividing line between legitimate assistance and inappropriate interference by lawyers) will no doubt benefit from being discussed and ventilated.

35. We hope that this article will serve to elicit vigorous discussion and gentle debate between the various stakeholders on this matter.

36. In the meantime, parties and their legal representatives will benefit from some common-sense practical steps to facilitate the joint statement process. Matters discussed and material instructions should be clearly recorded. Experts should be briefed  before the discussions with their opposite numbers in order to ensure they fully understand the issues in dispute, the scope of their evidence, their role and the duties to which they are subject. There should perhaps be a greater dose of caution applied to communications between the lawyers and experts over the joint statements, and an appreciation of the approach taken in England and its rationale.

1 Technology and Construction Court Guide (2nd Edition), paragraph 13.6.
2 Technology and Construction Court Guide (2nd Edition), paragraph 13.6.
3 Paragraph 9 of Practice Direction 35 to Part 35 of the English Civil Procedure Rules.
4 For example, paragraph 9.4 of Practice Direction 35 states that unless otherwise ordered by the court, or agreed by all parties and the experts, neither the parties nor their representatives may attend experts' discussions. Paragraph 9.5 stipulates what those representatives may and may not do in the event of such attendance.
5 In the context of international arbitration proceedings, please refer to Article 7 and Article 8 of the Chartered Institute of Arbitrators’ Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration. In the context of Singapore court proceedings, please refer to Order 40A, Rule 2 and Order 40A, Rule 5 of the Rules of Court (and the White Book commentary to the same).
6 O.40A, r.5(4).
7 Ibid, paragraph 237.  
 
 
Contributed by:
Kelvin Teo - Clifford Chance Asia/Cavenagh Law LLP; Xide Low - Clifford Chance Asia

* This article is written in our individual capacities and does not necessarily represent the position taken by the firm. This does not constitute legal advice and should not be relied upon as such.
Clifford Chance Pte Ltd and Cavenagh Law LLP are registered as a formal law alliance in Singapore under the name Clifford Chance Asia.
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