The attached post from Kim Lovegrove, of Lovegrove & Cotton, got me thinking. Mr Lovegrove proposes the idea of a single expert to reduce the cost of construction disputes. It is not a new idea; it has been proposed and discussed over the years and used to a limited extent, to my knowledge. It is well worthy of consideration again and Mr Lovegrove's comments are most welcome.
Some years ago, I was engaged as a court appointed expert in the Queensland Supreme Court in a construction dispute to report quantum. The disputed amount was not insignificant. The parties were in bitter combat, and as an expert independent of both parties I found myself in the middle of a battlefield between bitterly opposed parties. The parties used every legal tactic at their disposal including charges from both sides of denial of natural justice, and ultimately threats of litigation to recover fees. During the course of the appointment I took separate legal advice as to the legal process, evidence, hearings, natural justice and the like. The process took longer than it might have as a result of navigating the legal tactics that an expert would normally be protected from by an instructing solicitor. Nonetheless, from my perspective, it was a satisfying process and, I felt, a carefully considered and reasonable result.
Mr Lovegrove proposes pre-qualification criteria for an expert panel. Given my experience, I would suggest, where the courts appoint an expert they should also provide for some form of legal mentorship in relation to court processes and expectations. It would also be helpful to protect the fees of court appointed experts in order to prevent coercion from such threats in the same way that adjudicator's fees are protected.
A similar, and even more cost effective process for resolving technical disputes is expert determination or private adjudication. Expert determination, a similar process to the well-known adjudication of payment disputes, can provide quick, private, cost-effective agreed resolution of contract disputes before they escalate into major, expensive battles.
http://lclawyers.com.au/how-to-cut-the-cost-of-dispute-resolution-in-half/