Saturday, June 22, 2024

Speed and Consumption -Expert opinion evidence

Lord Hamblen provides his personal insights as a helpful basis for thought and guidance to those performing as experts and play a very important part in dispute resolution, whether that be through settlement, mediation, arbitration, or litigation. (

Some ‘do’s’ and ‘don’ts’ of the experts were summarised in paras [23]-[35].

General observations-comments

In a “speed and consumption” case that was resolved through arbitration, the claimants’ expert made most of the ‘don’ts’ when responding to the tribunal’s queries to make a finding of fact, i.e. about the applied methodology that adversely affected the claimants’ case.

In another “speed and consumption case”, the tribunal allowed expert opinion evidence. For example, para 5 (j) of LMAA SCP 2021 provides that “expert’s reports shall only be admissible with the permission and subject to the directions of the tribunal”, and the arbitrator may, at his discretion, vary the provisions of this procedure (see para 9 (a)- (d)), as happened in London Arbitration 23/21. While under the LMAA Terms 2021(, para 15 states that “it shall be for the tribunal to decide all procedural and evidential matters..” and in addition to the discretionary powers conferred by the Arbitration Act 1996(, since the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense(s. 1 & s.33 of AA 1996), para 17 (a) gives the tribunal the discretion ( “may”) to order whether expert evidence shall be called. And according to s.34 (1), “It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter”, having also regard to s.33 “the general duty of the tribunal”.

In this case, that the tribunal allowed expert opinion evidence, one of the parties’ experts relied solely on attacking the other expert’s comments and offered no assistance to the tribunal in deciding the issue, which again adversely affected the party’s case. Notably, the purpose of having expert evidence is to assist the arbitral tribunal in its decision-making process and not to undermine the process. The tribunal criticized the expert for his conduct.

That again reinforces the comments made in bold here:

Therefore, a performance report (or WRC’s comments) is not the end of the matter. It requires much more to pursue a claim in arbitration successfully.

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