Complex technical and construction disputes invariably involve experts, sometimes in significant numbers and covering a range of disciplines, often at great cost.
Australia has been at the forefront of the common-law world of developing new techniques to manage expert evidence. These techniques include formalising the requirements for expert reports in court and arbitration orders and protocols, the taking of concurrent evidence on discrete topics in a hearing (often referred to as a “hot tub”), and expert conferences (sometimes referred to as expert conclaves).
Expert conferences endeavour to narrow the issues in dispute between experts. They are typically held “without prejudice”, and usually in the absence of the parties’ lawyers. The task of an expert conference is generally to produce a joint report responding to defined questions. Where the experts disagree, they are each required to articulate their position, and the reasons why they disagree with the other experts. The “deliverable” of an experts’ conference is a joint report, signed by all the experts, the contents of which become part of the evidence in the dispute.
The process and value of producing a joint report emanating from a joint conference of experts was expressed by Garling J in John v Henderson (No.1) as follows:
“The parties are expected to agree upon the issues to be considered by the experts at a joint conference prior to the conference commencing. Such issues according to the common practice, then become, where necessary, the issues covered by the joint expert evidence. In effect, the list of issues becomes an agenda which is the sequence followed in the concurrent evidence session. As the UCPR provides, the joint conference is a forum, without the presence of lawyers for the parties, at which the experts consistently with the expert Code of Conduct, discuss the issues and attempt to reach agreement on those issues where possible. If agreement is not possible, then the joint report requires that the fact of their non-agreement be set out and that it be accompanied by a short expression of the basis of their non-agreement.
It is ordinarily to be expected that the process of joint conferencing will reduce the number of issues in dispute between the parties and will have the consequential effect of reducing the time spent by the experts in court and accordingly, the costs to the parties. The giving of evidence jointly is a process which is more informal than the typical adversarial process of a witness giving evidence. That is because inevitably, experts will comment on answers given by fellow experts or on opinions expressed by them. As well subject to proper control and management, experts are permitted to ask questions of each other. Experience demonstrates that these questions are often more incisive and of greater assistance in eliciting the real difference in the basis of the opinions of the experts.”
In complex technical disputes there is considerable value in having an experts’ conference chaired by an independent person, the Facilitator. A Facilitator who understands the requirements for expert evidence, as well as the technical issues discussed by the experts in conference can assist them to articulate their positions and express them in a way that is most helpful to the dispute Tribunal. An independent Facilitator may also provide a check that the language used by the technical experts in the joint report is readily understandable to laypersons. The skills required of a Facilitator are typically those of ADR practitioners experienced in complex technical disputes: understanding of the relevant technical issues, the law and the contract, and mediation-type communication skills to encourage the experts to establish common ground and agree on the issues that they are able to. In KF By Her Tutor RF v Royal Alexandra Hospital for Children, Johnson J considered the provisions of the Uniform Civil Procedure Rules 2005 (NSW) in a contested application for the appointment of a Facilitator, noting that “The discretion to direct the attendance of a facilitator at a joint expert conference falls to be exercised in the circumstances of the particular case.”
Campbell J expressed the value of a Facilitator in Coffey v Murrumbidgee Local Health District as follows:
“I am familiar with the role referred to in the rules as “facilitator”, sometimes referred to in practice as “moderator” and, of course, as “chair”. It has been my experience that the involvement particularly of a member of the bar in that role can be invaluable, and the involvement of a person in those roles however designated in the given case assists in the administration of justice, and in the provision of the joint report by the experts, which is likely to be provided in proper form. This is of assistance to the parties as well as the Court in the resolution of the case.”
As noted above, the list of issues to be considered by the experts is typically in the form of questions which becomes the agenda for the experts’ conference. The questions should enable the experts to answer in their own way: “In short, questions should be framed as simply as is possible in an open-ended manner and targeted to issues raised by pleadings.”
In addition to facilitating the expert conferences, a Facilitator with appropriate legal and technical skills can materially assist the parties’ solicitors by formulating the questions to be addressed by the expert report based on the pleadings and expert reports. Toby Shnookal QC and Dr Donald Charrett have conducted a number of facilitations of expert conferences; their experience is that they are very productive in reducing the number of issues in dispute that ultimately require oral expert evidence and provide considerable assistance to counsel in preparing their cross examination. In some cases the agreements in joint expert report has convinced the parties to settle the dispute without proceeding to trial or arbitration.
Toby Shnookal QC and Dr Donald Charrett are well qualified and experienced to assist parties with an appropriate agreement for facilitation of an expert conference that is consistent with the orders that are typically made by courts for facilitated expert conferences. Their technical expertise and legal experience enable them to understand the legal and technical issues so as to efficiently facilitate an expert conference in which the experts’ joint report will materially assist the parties and the dispute Tribunal. They have a detailed understanding of the rules of expert evidence in Australia.
During the COVID-19 pandemic Toby Shnookal QC and Dr Donald Charrett conducted expert conferences on virtual platforms. Any of the widely used video conferencing platforms enable efficient collaboration on a joint document accessible to all participants, a key feature of expert conferences. The success of these virtual conferences highlights future opportunities to reduce costs by eliminating the time and cost of travel. This is particularly valuable in situations where experts are in different States or countries, a frequent occurrence in Australia.