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What does a court or tribunal want (and not want) from a party-appointed delay expert witness: perspectives from a practising arbitrator

As first published in Construction Law Journal, Volume 38, Issue 3, 2022

Introduction

Much has been written about what form of delay analysis is best suited for determining extensions of time or delay-related compensation claims in formal dispute resolution. Perhaps just as much ink has been spilled reporting upon court judgments where delay expert witnesses have been found to have fallen below required standards or have provided evidence that was of little or no use in determining the issues.

This article does not offer views on what form or forms of analysis are appropriate, but instead explores points that a delay expert witness may wish to consider in determining how best to approach his or her task, with a view to providing the court or tribunal with the best possible expert assistance.

This follows my recent article ‘What does a court or tribunal want (and not want) from a party-appointed quantum expert witness: perspectives from a practising expert and arbitrator’ .

I shall explore the subject under the following headings, before drawing the threads together:

  1. The duties of an expert witness.
  2. Independence and compliance with ‘the rules’.
  3. An appreciation of the underlying contractual and legal framework.
  4. Understanding differences of approach required in analysing excusable and compensable delay.
  5. Distinction between the facts and expert opinion evidence.
  6. Addressing the parties’ factual cases.
  7. Matching the form of analysis to the dispute.
  8. Prospective or retrospective analysis.
  9. Identification of the critical path.
  10. Early agreement on key aspects of any delay analysis.
  11. Joint statements.
  12. The art of explaining a complex factual matrix in simple terms.

This publication presents the views, thoughts or opinions of the author and not necessarily those of HKA. Whilst we take every care to ensure the accuracy of this information at the time of publication, the content is not intended to deal with all aspects of the subject referred to, should not be relied upon and does not constitute advice of any kind. This publication is protected by copyright © 2022 HKA Global Ltd.