Expert evidence and dispute resolution

Ian Salisbury is a chartered arbitrator, mediator, conciliator and adjudicator. As an architect he is retained as an expert witness and to provide expert determinations. With experience of several hundred appointments, well over 70% have settled by agreement.

His approach to expert evidence is straightforward. An expert should remain strictly within the proper limits of their professional expertise, distinguishing matters on which they can properly express an opinion from questions which are for the court or tribunal to determine. Within those limits, however, the expert’s duty is to reach and express their conclusions clearly, decisively and, where the evidence permits, unequivocally. Proper qualification where the evidence is uncertain is essential; habitual equivocation where it is not is of no assistance to the parties or the court.

In tribunal work his approach is similarly direct. The purpose of arbitration and adjudication is to resolve the dispute referred, not to prolong it. The parties must have a fair opportunity to present their cases and answer the case against them, but procedural fairness and impartiality do not require unnecessary formality or indecision. The tribunal should identify the issues that actually require determination, distinguish them from matters which do not affect the outcome, and decide those issues clearly and for stated reasons. Where the evidence permits a conclusion, it should be reached swiftly and expressed decisively.

Ian has provided consultancy services for dispute avoidance and dispute resolution in the following areas:

the operation and breach of building contracts and sub-contracts, including the assessment of delay;
the appointment, payment and performance of architects and other building designers;
building defects, including fire damage, cladding, insulation, flooding and landscape works;
compliance with statutory requirements including planning and listed building conditions, and the Building Regulations;
surveying, valuation and risk analysis;
issues relating to copyright and other intellectual property, and
professional conduct and disciplinary proceedings.

Ian is retained on the panels of several professional bodies and is a Past President of the Society of Construction Arbitrators.

Published cases in which his opinions as an expert architect have been relied upon by the Court include Cala v McAlpine [1995] F.S.R. 818, Jones v London Borough of Tower Hamlets [2001] R.P.C. 23, McGlinn v Waltham Contractors and others [2007] CILL 2441, and Hodgson v NHBC [2018] EWHC 2226 (TCC). Only three of his decisions as an arbitrator have been appealed, all being upheld: VP Developments v Penwith District Council [2007] EWHC 2544 (TCC), and Dawes v Treasure & Son Ltd, twice, at [2009] EWHC 1932 (TCC) and [2010] EWHC 3218 (TCC). The enforcement of two adjudication decisions have been challenged, unsuccessfully: Gray & Sons Builders v The Essential Box Co (2006 – TCC, unpublished) and Lobo v Corich [2017] EWHC 1438 (TCC).

VP Developments v Penwith : “on any proper analysis, this application to appeal from the Arbitrator’s Award was without any merit.”

Dawes v Treasure (1) : “It seems to me that Award No. 1 in this case accurately reflected that general position, but it also seems to me that even if there had been any doubt about the position before that, whatever else it did Award No. 1 very sensibly made the position absolutely clear to the parties.”

Dawes v Treasure (2) : “Mr Salisbury did have jurisdiction to consider and decide whether the settlement agreement between the parties covered all claims for the defects specifically pleaded in the Amended Defence and Cross Claim; he was not functus officio when he did consider and decide this issue. His Award on the issue was right for the reasons set out above.”

Gray & Sons Builders v The Essential Box Co : “It is clear to me that, in the present case, the Defendants knew or ought to have known that they had no defence to the claim to enforce the Adjudicator’s decision.”

Lobo v Corich: “I am satisfied, if I needed to be, that there would have been no basis on which Mr Corish could have challenged the adjudication decision.”

Ian Salisbury is a member of the British Standards Institute and the Timber Research and Development Association. He is a subscribing member of the UK Construction Information Service.

Photo: Scaffolding for La Sagradia Familia, Barcelona: Maurice Koop

Navigation

Expert evidence and dispute resolution