Expert evidence

in arbitration
Tom Owen
Outline
• Key concepts: admissibility and weight.
• Arbitration Act 1996: party-appointed or tribunal-appointed.
• Procedure and practice: appointment through to evidence.
• IBA rules on take of evidence in International Arbitration.
• Expert obligations: case law, the Act and relevance of CPR Part 35 .
• Concurrent evidence: “hot tubbing”.
• Arbitrators as experts.
Key concepts: admissibility and weight
Key concepts: admissibility and weight
• Admissibility:
• Necessity and relevance.
• Statements of case and evidence.
• Admissions and judicial notice.
• Fact and opinion.

• Weight.

• Perceptions about risks of expert evidence.

Key concepts: admissibility and weight
• In arbitration (dependent on the rules of arbitration), statements of
case do not prove facts by themselves, unless:

• (1) the other party admits the fact; or

• (2) the fact is the subject of judicial notice.

Key concepts: admissibility and weight
-

Judicial Notice
Key concepts: admissibility and weight
-

Judicial Notice

• No evidence is required of matters:

• (1) Formally admitted; or
• (2) Judicially noticed.

• Judicial notice:
• (1) Matters so notorious or clearly established or susceptible of
demonstration by reference to a readily obtainable and authoritative source
that evidence of their existence is unnecessary.
• (2) Statutory provisions providing for judicial notice of specific matters.
Key concepts: admissibility and weight
-

Judicial Notice

• Rationale for two categories:

• (1) matters so notorious or undisputable: waste of resources to require a party

to prove them.

• (2) matters may not be so obvious and may be controversial, but the law has
stipulated that formal proof is not necessary.
Key concepts: admissibility and weight
-

Judicial Notice
• Examples:

• Notorious matters
• The difference of time in places east and west of Greenwich: Curtis v March
• The difference in value of currency in early and modern times: Bryant v Foot

• The streets of London are crowded and dangerous: Dennis v White

• Boys are naturally reckless and mischievous: Clayton v Hardwicke Colliery
• Cats are ordinarily kept for domestic purposes: Nye v Niblett
• Persons who operate a cash business (such as taxi drivers) do no always declare their
full income to the Revenue: R v Panesar
Key concepts: admissibility and weight
-

Judicial Notice
Key concepts: admissibility and weight
-

Judicial Notice
• Examples:

• Statutory provisions
• s3, Interpretation Act 1978: every Act of Parliament passed after 1850 is judicially
noticed.
• ss2 and 5, Documentary Evidence Act 1868: the official Gazettes of London,
Edinburgh and Belfast will be noticed on their mere production.
• The extent of British jurisdiction. But, where this is in doubt, the court may and
should apply under s4, Foreign Jurisdiction Act 1890 to one of HM’s principal
Secretaries of State, who is to furnish the information required, which shall be
conclusive evidence of the matters stated.
Key concepts: admissibility and weight
-

Judicial Notice

• Specialist tribunals: arbitrations.

• Arbitration clauses often provide that the arbitrators should be members of a

professional or trade group or that they shall be “commercial men”.

• Appointed because they have special expertise in a professional field or business.

• Specialised tribunal widens the scope of what is “notorious” within that trade so as to
be judicially noticed.
Key concepts: admissibility and weight
-

Judicial Notice

• Arbitrators may use their general knowledge of the trade, without

putting the matters on which they rely to the parties.

• However, if they have particular knowledge of the events which are

the subject-matter of the dispute, they are bound to tell the parties of
that knowledge, to enable the parties to call evidence to support or
contradict that understanding: Waring v Administraçao Geral.
Key concepts: admissibility and weight
• The Arbitrator(s) is the tribunal of fact and law.

• Evidence of fact and evidence of opinion.

• Admissibility:
• Whether the tribunal is entitled legally to receive evidence (factual or expert).
• Touchstones necessity and relevance.

• (Non-expert) opinions are usually inadmissible:

• (1) insofar as founded on no evidence: worthless.
• (2) insofar as founded on evidence: usurp the tribunal’s function.

• Expert evidence is opinion evidence.

Key concepts: admissibility and weight

• Weight:
• The persuasive power and strength of evidence placed upon it by the tribunal.

• Perceptions about risks of expert evidence:

• Costs.
• Independence.
• Repetition.
• Unhelpful to the tribunal.
Arbitration Act 1996:
party-appointed or tribunal-appointed.
Arbitration Act 1996:
party-appointed or tribunal-appointed.
• Arbitration Act 1996:
• Section 34: tribunal to decide all procedural and evidential matters.
• Necessity for expert evidence.
• Party-appointed or tribunal-appointed.

• Section 37, Arbitration Act 1996.

• Restrictions to meet concerns of expert evidence: section 65.

Arbitration Act 1996:
party-appointed or tribunal-appointed.
• Section 37, Arbitration Act 1996:
“(1)Unless otherwise agreed by the parties—
(a)the tribunal may—
(i)appoint experts or legal advisers to report to it and the parties, or
(ii)appoint assessors to assist it on technical matters,
and may allow any such expert, legal adviser or assessor to attend the proceedings; and

(b)the parties shall be given a reasonable opportunity to comment on any information,

opinion or advice offered by any such person.

(2)The fees and expenses of an expert, legal adviser or assessor appointed by the tribunal
for which the arbitrators are liable are expenses of the arbitrators for the purposes of this
Part.
Arbitration Act 1996:
party-appointed or tribunal-appointed.
• Non-delegation of decision-making functions to third parties, unless
the parties agree.

• Key points:

• (1) There is no objection to arbitrators delegating ministerial acts and other

non-judicial functions to a third party, as long as these do not have any effect
on the final outcome of the arbitration.

• (2) The arbitrators are under a duty to act judicially and cannot delegate the
ultimate award to an expert.
Arbitration Act 1996:
party-appointed or tribunal-appointed.
• Key points:
• (3) Where expert advice is obtained from an expert, the arbitrators are free to
accept it, and the weight to be given to that advice is a matter for the
arbitrators. However they may not do so uncritically, and it must be shown that
they have exercised some judgment as to whether or not that advice should be
taken

• (4) If there is a conflict amongst the experts, the arbitrators are under a duty to
make a factual finding as to which evidence they prefer, failing which there
will be a serious irregularity in their conduct of the proceedings. In particular
they must not regard expert evidence as self-cancelling and thereby entitling
them to ignore the issue.
Arbitration Act 1996:
party-appointed or tribunal-appointed.
• Key points:
• (5) Any advice given by an expert must be disclosed to the parties. s 37(1)(b)
of the Act requires the arbitrators to give the parties a reasonable opportunity
to comment on any information, opinion or advice offered by an expert.

• (6) It is permissible for the arbitrators to seek expert advice on the form of the
award, but not its content.

• Infringement of those principles: section 68 (serious irregularity):

• Remitted to the arbitrators or set aside (in full or in part).
• Unless the tribunal’s conduct had no effect on the outcome of the arbitration.
Arbitration Act 1996:
party-appointed or tribunal-appointed.
• Restrictions to meet concerns: section 65:

(1)Unless otherwise agreed by the parties, the tribunal may

direct that the recoverable costs of the arbitration, or of any part
of the arbitral proceedings, shall be limited to a specified amount.

(2)Any direction may be made or varied at any stage, but this

must be done sufficiently in advance of the incurring of costs to
which it relates, or the taking of any steps in the proceedings
which may be affected by it, for the limit to be taken into account.
Procedure: appointment through to evidence.
Procedure: appointment through to evidence.
• Tribunal’s permission or agreement of the parties.
• If tribunal-appointed: tribunal takes the lead with involvement of the parties.
• If party-appointed:
• Letter of instruction: the dispute, competence, conflict, practicalities.
• Confirmation of instructions and terms of appointment.
• Liability of experts: Jones v Kaney.
• Consideration of instructions, site visit (if required), further information.
• Draft report (for internal use) and review.
• Clarification by the experts of the tribunal (if required).
• Expert meetings with opposing party’s expert (if directed or agreed).
• Joint Statement of matters agreed and disagreed by the experts (if directed or agreed).
• Final report and exchange of expert reports.
• Reply reports (if necessary and if directed or agreed).
• Oral evidence (if directed or agreed). Cross-examination and/or tribunal questions.
Procedure: appointment through to evidence.
• Changing experts: beware!

• Allen Tod Architecture v Capita

• Risk of disclosure of previous reports and instructions, if a condition for

permission of a second named expert.

• Role of privilege?
IBA rules on the taking of evidence in
International Arbitration.
IBA rules on take of evidence in International
Arbitration.
• IBA Council – 29 May 2010.

• Purpose and aim of the rules.

• Legal status of the rules: guidance unless agreed to be binding.

• Example clause to render the IBA rules binding:
“[In addition to the institutional, ad hoc or other rules chosen by the
parties,] [t]he parties agree that the arbitration shall be conducted
according to the IBA Rules of Evidence as current on the date of [this
agreement/the commencement of the arbitration]”.
IBA rules on take of evidence in International
Arbitration.
• Article 5: Party Appointed Experts.

• Article 6: Tribunal-Appointed Experts.

• Article 7: Inspection.

• Article 8: Evidentiary Hearing(s).

• Article 9: Admissibility and Assessment of Evidence.

Expert obligations:
Case law, the Act and relevance of CPR Part 35 .
Expert obligations:
Case law, the Act and relevance of CPR Part 35 .
• Guidelines distilled from judicial and academic guidance.

• The Ikarian Reefer

• CPR Part 35 (civil litigation in court).

Expert obligations:
Case law, the Act and relevance of CPR Part 35 .
• Guidelines: see Street [1993] ADRLJ 215.

• (1) The arbitrators are free to determine whether there is a need for expert evidence.

• (2) If expert evidence is needed, the arbitrators may determine whether that evidence is to be
provided by opposing experts appointed by the parties, or whether the arbitrators are to
appoint an expert of their own under the Arbitration Act 1996, s 37.

• (3) If the parties are permitted to introduce expert evidence, the arbitrators may directly or
indirectly restrict the amount of evidence which is submitted. They may do so directly by
giving directions as to the issues on which expert evidence may be heard. They may do so
indirectly by exercising their power to cap costs under s 65 of the Arbitration Act 1996, and
thereby to limit the costs recoverable by either party for the cost of experts—the party
victorious in the arbitration may, therefore, be forced to pay the costs of his expert if that cost
exceeds the capped amount.
Expert obligations:
Case law, the Act and relevance of CPR Part 35 .
• Guidelines: see Street [1993] ADRLJ 215.

• (4) If an expert proves not to be impartial or is otherwise unsatisfactory (e.g. as to

qualifications), the arbitrators may simply disregard his evidence and may, in the last
resort, emulate the power of the court to refuse to include the costs of that expert in
any award of costs should the party appointing that expert win the arbitration.

• (5) The weight to be given to expert testimony is a matter purely for the arbitrators.

• (6) The procedure to be adopted for the exchange of experts’ reports is up to the
arbitrators.
Expert obligations:
Case law, the Act and relevance of CPR Part 35 .
• The Ikarian Reefer:
Expert obligations:
Case law, the Act and relevance of CPR Part 35 .
• The Ikarian Reefer:

• (1) Expert evidence presented to the court should be, and be seen to be, the
independent product of the expert, uninfluenced as to form or content by the
exigencies of litigation.

• (2) An expert witness should provide independent assistance to the court by

way of objective unbiased opinion in relation to matters within his expertise.
An expert witness in the High Court should never assume the role of an
advocate.
Expert obligations:
Case law, the Act and relevance of CPR Part 35 .
• The Ikarian Reefer:

• (3) An expert witness should state the facts or assumption upon which his
opinion is based. He should not omit to consider material facts which detract
from his concluded opinion.

• (4) An expert witness should make it clear when a particular question or issue
falls outside his expertise.
Expert obligations:
Case law, the Act and relevance of CPR Part 35 .
• The Ikarian Reefer:

• (5) If an expert’s opinion is not properly researched because he considers that insufficient data
is available, then this must be stated with an indication that the opinion is no more than a
provisional one. In cases where an expert witness who has prepared a report could not assert
that the report contained the truth, the whole truth and nothing but the truth without some
qualification, that qualification should be stated in the report.

• (6) If, after exchange of reports, an expert witness changes his view on a material matter
having read the other side’s expert’s report or for any other reason, such change of view should
be communicated to the other side without delay and when appropriate to the court.

• (7) Where expert evidence refers to photographs, plans, calculations, analyses, measurements,
survey reports or other similar documents, these must be provided to the opposite party at the
same time as the exchange of reports.
Expert obligations:
Case law, the Act and relevance of CPR Part 35 .

• CPR Part 35 (civil litigation in court).

Expert obligations:
Case law, the Act and relevance of CPR Part 35
• “expert”: a person instructed to give or prepare expert evidence for the
purpose of proceedings: CPR r.35.2(1)

• Expert evidence restricted to what is reasonably required to resolve the

proceedings: CPR 35.1

• Court’s permission required to call an expert or put in evidence an

expert’s report: CPR r.35.4
• Must now provide an estimate of costs
Expert obligations:
Case law, the Act and relevance of CPR Part 35
• Overriding duty to the court: CPR r.35.3

• Written report: CPR r.35.5(1)

• Not required to attend a hearing on the Small Claims Track or Fast

Track unless directed by the court: CPR r.35.5(2)
Expert obligations:
Case law, the Act and relevance of CPR Part 35
• Essential reading:
• (1) CPR Part 35 and PD35
• (2) The Protocol for the Instruction of Experts to give Evidence in Civil Claims

• Instructions and appointment: section 7, Protocol

• Discussions between the parties’ experts

• Not mandatory unless directed by the court: CPR PD35, para 9.1
• Often directed in TCC cases
• Joint statement setting out areas of agreement/disagreement
Expert obligations:
Case law, the Act and relevance of CPR Part 35
• Form and content of expert report (CPR PD35, paras 3.2 – 3.3):

• Addressed to the court

• Expert qualifications
• Literature/material relied upon
• Basis and substance of facts and instructions
• Which facts are within the expert’s own knowledge
• Who carried out examinations, measurements, tests and experiments
• If range of opinion: summarise range and give reasons for the experts own
opinion
Expert obligations:
Case law, the Act and relevance of CPR Part 35
• Form and content of expert report (CPR PD35, paras 3.2 – 3.3):

• Summary of conclusion
• State any qualifications to opinions
• Statement of understanding and compliance with duty to the court and
awareness of the requirements of Part 35 and the Protocol
• Verified by a Statement of Truth
Expert obligations:
Case law, the Act and relevance of CPR Part 35
• Written questions (CPR r.35.6):
• To another party’s expert or single joint expert
• May only be put once
• Within 28 days of service of the expert’s report
• For the purpose of clarification only
• (unless court gives permission or other party agrees)
• Answers treated as part of the report: CPR r.35.6(3)
Expert obligations:
Case law, the Act and relevance of CPR Part 35
• Disclosed report:
• Any party may use as evidence at trial: CPR r.35.1

• Undisclosed report:
• Party may not use the report at trial or call the expert to give evidence unless
the court gives permission: CPR r.35.13
Expert obligations:
Case law, the Act and relevance of CPR Part 35
• Expert’s right to ask the court for directions for the purpose of
assisting them in carrying out their functions: CPR r.35.14

• Copy of request to instructing party: 7 days before filing the request

• Copy to all other parties: 4 days before filing

Who would be an expert…?!
Who would be an expert…?!
• Van Oord v Allseas: “His abrupt departure from the witness box at a short break for the
transcribers, never to return, was an indication of the undoubted stress he was under. But
I regret to say that I came to the conclusions that his evidence was entirely worthless.
There were a total of twelve different reasons for that conclusion.”

• Bank of Ireland v Watts: “not a properly independent witness”, “Mr Vosser's close
relationship with the Bank was borne out by many things: his unrealistic approach to the
allegations; his attempt to mislead the court; his application of the wrong test; his
unreasonable intransigence which led to his refusal to make any concessions whatsoever;
and the fact that many of his criticisms, which he did not withdraw, were so unpersuasive
that the Bank, quite properly, declined even to plead them as allegations of professional
negligence. I deal briefly with each of those matters in turn below. They support, either
separately or cumulatively, my conclusion that Mr Vosser was not an independent or
reliable expert witness.”
Who would be an expert…?!

• Riva v Foster: “wildly out”, “no intellectual justification whatsoever”, “verging

on nonsense”.

• ICI v Merit: “approach to his evidence wholly unsatisfactory”, “overall his expert
evidence favoured ICI at the expense not only of ICI's pleaded case (which he did
not support) but also at the expense of providing any impartial assistance.”

• Castle Trustee Ltd v Bombay Palace Restaurant: “The expert evidence was even
more remarkable and, in many respects, unsatisfactory.”
Concurrent evidence: “hot tubbing”.
Concurrent evidence: “hot tubbing”.
• History.
• Australian tribunals.
• Arbitral tribunals.
• Manchester TCC (litigation) pilot scheme: 2010-2013.
• CPR Part 35 (litigation) from 1 April 2013.

• Practice.

• Lord Justice Jackson’s update:

• June 2016 Commercial Bar Association of Victoria lecture.
Arbitrators as experts.
Arbitrators as experts.
• Practice.

• Key principles:

• The argued case.

• An expert arbitrator may not use own expertise or extraneous evidence to make an award on a
basis other than that argued.

• Consideration of all the evidence.

• Judicial notice.
Arbitrators as experts.
• Summary in Methanex Motuni v Spellman:
• (1) Party-sourced material, that is to say evidence and argument provided to
the arbitrator by another party to the arbitration, must be disclosed to the other
parties with opportunity to respond.

• (2) In the absence of agreement to the contrary, non-expert arbitrators must

confine themselves to the evidence provided by the parties unless judicial
notice would have been possible in conventional courts. The same applies to
the observations and knowledge of expert arbitrators concerning facts specific
to the particular dispute, any general matters that fall outside their area of
expertise, and any reports or opinions obtained from others.
Arbitrators as experts.
• Summary in Methanex Motuni v Spellman:
• (3) An expert arbitrator is entitled to draw on his or her knowledge and
experience to supplement the facts drawn from party-sourced evidence, and
without prior notice to the parties, provided that the additional facts are ones of
general application as distinct from those specific to the particular dispute.

• (4) In general an arbitrator must provide notice of, and an opportunity to

respond to, issues, ideas, methods, research, investigations and/or studies of
the arbitrator that were not reasonably foreseeable in the light of the arguments
traversed before the arbitrator.
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The presentation was prepared for a lecture at King’s College London on 23 November 2018 for the purpose of
raising general awareness of issues and stimulating discussion only in an academic context. It does not constitute
legal advice. The contents must not be relied upon, copied, published or applied in any given situation.

© Tom Owen
23 November 2018