A random selection – Choosing samples for inspection

November 6th, 2018

by Michael Ogus

Experts are frequently asked to provide opinions on projects where there are defects in multiple locations. In these circumstances, it is often not feasible to inspect every location and sampling is proposed as a reasonable basis for assessment.

The advantages of sampling are clear. The parties can quickly clarify the issues and quantum of the defects without having to inspect in every location. Appropriate sampling helps to limit the costs of expert evidence to a reasonable level, as required by the court in pre-action proceedings.

The process by which sample locations are selected, however, is not without its pitfalls.

A selection process based only on expediency or practical criteria, such as avoiding disruption to occupants; choosing only locations where access is straightforward on the grounds of safety or cost; or only opening-up parts of the works that can be reinstated with minimum time, cost and damage, may result in a range of samples that will not allow the court fully to understand the issues.

A selection process based purely on these criteria is unlikely to persuade the court that the range of selected samples is adequate. For example, Experts often encounter situations where details that should be identical have been constructed by different teams or different sub-contractors, leading to variations in workmanship. Such variations may be missed if too few samples are taken.

Whilst practical aspects must be considered, it is important to remember that the overriding purpose of expert evidence is to assist the court.

Guidance was provided by the court in the case of Amey v Cumbria County Council.[1] Here the contractor had repaired and maintained the county’s road network over a seven-year period. The area of roads repaired during that time ran into several million square metres with instructions running into the tens of thousands. The contract was terminated and Amey started proceedings to recover sums deducted from a payment. Cumbria counterclaimed alleging that some of Amey’s work was defective.

The Council relied on two types of statistical sampling; probability sampling and non-probability sampling. The Court considered whether this was sufficiently random and free from bias to be relied upon.

HHJ Davis accepted that it was impractical to take core samples from every location where defects were alleged because of the sheer number and geographical spread of the locations. Also, some of the earliest repairs could not be located because of subsequent re-patching or lost records. The judge agreed that the council could in principle rely on evidence gathered from sampling.

“I accept Cumbria’s primary submission that it would have been quite impracticable for it to have visually inspected and/or undertaken core testing to all of the patches laid by Amey over the duration of the contract …”

He continued –

“… there is no principle of law nor a statistical theory that a claim or proposition can only be established by statistically random sampling.I accept that it is perfectly open to a claimant to seek to establish a claim by reference to representative sampling…

However, he went on to say that as some of the samples were not genuinely random it was not possible to extrapolate the percentage of defective work claimed.

The judge was also critical of some of the aspects of sampling that Cumbria and its experts relied on. He pointed out that the sampling had been conducted over a long period and that variations in the age of the patching had not been adequately considered. Sample locations were selected using GPS. This produced a bias towards newer samples because works carried out before the introduction of GPS could not be located. Inadequate consideration was given to the size and composition of the sample that was tested or to variables, such as weather conditions at the time of the works, drainage and foundation issues and geographical area. Log sheets showed that insufficient time had been allocated to inspect, record and photograph the defects. The judge commented that this time pressure may have led to errors in the process. There was a concern about the quality of the inspections which were described in some instances as “perfunctory” and contained a number of assumptions. Because the inspection sheets were poorly designed and compiled under considerable time pressure it was doubtful whether the experts or court could rely on them. HHJ Davis concluded –

“… in my view Cumbria has failed to demonstrate that the sampling exercise undertaken on its behalf in this case is a sufficiently reliable exercise to justify the court in making the finding as against Amey …”

So, the lessons are clear. Whilst the courts are prepared to accept that sampling can be used as the basis to advance a claim, care must be taken at the outset to ensure the selection process and methodology is given proper consideration and is sufficiently robust, random, widespread and free of perceived bias to withstand judicial scrutiny. Wherever possible, the sampling exercise should be agreed between the parties to assist in overcoming later objections.

[1] Amey LG Ltd v Cumbria CC [2016] EWHC 2856 (TCC) (11 November 2016)
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Experts in the dock – Recent criticisms of expert evidence

November 6th, 2018

by Bart Kavanagh

In three recent cases, ICI v Merit, [1] Riva v Fosters, [2] and Energy Solutions v NDA, [3] Sir Peter Fraser, who was recently designated as the Judge in Charge of the TCC, has criticised the provision of expert evidence.

In ICI v Merit Fraser J was critical of the way in which one of the experts: argued his client’s case; dealt with issues of fact and law; interpreted the contract; and failed properly to consider factual witness evidence. He was critical also of the joint statement produced by the experts, saying that he found it “… a most unhelpful document.”

“The Joint Statement essentially amounts to a recitation of each expert’s view, with the occasional exception where a minor item was in fact agreed. However, such items are few and far between.”

The judgment goes on to consider certain agreements that were made between the parties’ surveyors during the course of the works and Fraser J criticises the expert’s approach to these:

“[The expert] chose entirely to ignore these agreements and by doing so took a position on what is an issue of fact and law for the court, that it is not within the sphere of an expert witness to do. Nor did he simply ignore the agreements altogether. On some issues, he mounted arguments positively in ICI’s favour against those agreements being applicable.”

He was critical also of the way the expert dealt with a matter of fact and law regarding the method to be adopted in valuing the works, noting that the expert:

“… made it clear that he had adopted a different method of valuation to that included in the contract, and agreed by the parties, because he felt that to use the correct contractual approach would result in MMT being paid more money than it ought to have been.”         

And stating that:

“It is not acceptable for an independent expert to decide that it is the correct approach to the contract, and wholly ignore the other approach – in other words, to decide for himself (and put some effort into persuading the court) that this was the correct interpretation.” 

The approach of the same expert to factual witness evidence was also critically scrutinised:

“There was factual evidence from MMT’s witnesses that the majority of the steelwork (…) was outside the building. [The expert] refused to accept this, and said this was a “common misconception”. Given MMT’s witnesses (…) were witnesses of fact and had been involved at the time, it is a surprise to me that [the expert] believed himself to be in a better position than either of them on matters of fact, or saw fit “not to agree” with their factual evidence on matters of fact.”         

as was his preference for his own view over contemporaneous documents:

He took a view on most things, preferring his own even to other contemporary references, even those from the Project Manager. For example on preliminaries, when something [the project manager] had stated in a contemporaneous document was put to him, he said “That’s what [the project manager] is saying. I must admit I would have formed a different view — have formed a different view by looking at the documents.”

In Riva v Fosters the issues regarding the experts were largely to do with their inexperience as experts, although both were highly experienced architects. For example, one of the experts:

“… had not included the CPR Part 35 declaration in his report at all, which is a mandatory requirement and which was corrected by him overnight.”

This inexperience showed itself also when dealing with matters of fact:

He also did not really appreciate the correct approach to disputed evidence of fact, which can present some challenges for an inexperienced expert witness who must (of course) not decide which version of the facts they prefer.

[The expert] said he had simply disregarded facts that were controversial. This means that considering alternative opinions depending upon the facts did not arise in the conventional sense.

Whilst criticising the expert for straying into legal territory by providing his views on causation, Fraser J implicitly criticised his instructing lawyers by acknowledging that the instructions to the expert had encouraged this.

He gave his extensive views on causation, which matters do not require expert opinions, qualifications or analysis and which are matters for the court. Such evidence from an expert is inadmissible. This was not entirely his fault, however, as the questions he was asked could potentially have been interpreted as inviting this.

In contrast to the experts in ICI v Merit, and despite his own admonishments, Fraser J “… found both the experts of great assistance.”

“… it was clear to me that both experts were doing their best genuinely to assist the court, and both realised that they had to be independent of the party that had instructed them.

Their Joint Statement was also very useful. Both architects agreed that the Fosters’ Scheme could never have been value engineered down to a value of £100 million.”

In Energy Solutions Fraser J detected the effects of witness coaching and disparaged the results.

[The expert] adopted a style of giving evidence that became increasingly common throughout the trial for the majority of the witnesses for Energy Solutions.

This was, at times, to avoid the question and embark upon something of a corporate presentation. The linguistic device adopted for this approach was, usually, to state that it was necessary to put a question “in context” and then embark upon an exposition that was essentially sketching out the Claimant’s case, and avoiding giving a clear answer to sensible questions from [counsel]. I found this increasingly unhelpful.

Conversely, at a subsequent hearing for which there had been little time for preparation, he found the evidence given by the same witness:

“… to be far more persuasive than it had been during the trial in November 2015. Perhaps the lack of time for extensive preparation, or witness training, was a good thing. Certainly where before there had been long pauses, requests to put matters “in context”, careful consideration of questions and equally careful non-answers, on 26 July 2016 he answered promptly, candidly and openly, and I found what he had to say wholly convincing.

It is not clear whether these comments reflect isolated incidents or provide a snapshot of the current general standard of expert evidence in the construction industry; perhaps under the influence of the rougher world of adjudication. Either way, these judgments should remind experts not to become complacent and should put them, and those who instruct them, on notice that the court expects, and will demand, rigorous adherence to the requirements and standards that are set out clearly in CPR Part 35.

[1] ICI v Merit Merrell Technology [2018] EWHC 1577 (TCC)

[2] Riva Properties and Ors v Foster + Partners [2017] EWHC 2574 (TCC)

[3] Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2017] UKSC 34

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Perspective Summer 2018

June 26th, 2018

Pobyn Miers welcomes you to our Summer 2018 edition of ‘Perspective’ which brings you news, information and points of view on topical issues relevant to construction lawyers, architects, contractors, engineers, insurers and to all our colleagues and friends in the international and UK Construction Industry

This Year’s Model – The CIC BIM Protocol Revised
By David King
The BIM Protocol was first published by the Construction Industry Council (CIC) in February 2013. It was one of a number of documents prepared to support the Government BIM Strategy (May 2011), with its mandate for publically funded construction projects to be undertaken using BIM Level 2. To this end the BIM Protocol sought to provide……   Read More

Making Best Use of Experts in Complex Disputes
By John Gouldsmith
For a complex dispute which is likely to turn on technical issues, how can parties make best use of multiple experts across different disciplines? Probyn Miers has recently concluded a Facilitated Multi-disciplinary Expert ADR process for a multi-party dispute. This involved a series of 16 multi-disciplinary Without Prejudice (WP) expert meetings…..   Read More

One size fits all or made to measure? Is the professional standard of care about to be reassessed?
By Bart Kavanagh
For the half a century since Bolam [1957], the standard by which competent professionals have been judged in performing their duties has been one of “reasonable skill and care”. During this time what constitutes reasonable and care has been considered to be what is; “accepted as proper by a responsible body of professional…..   Read More

Updates & News

Banning the use of combustible materials in the external walls of high-rise residential buildings

On 18th June 2018 a consultation on banning the use of combustible materials on the external walls of high-rise residential buildings which are 18 metres or over was published. It was announced in the UK Parliament by the Housing Secretary, Rt Hon James Brokenshire MP.

The consultation is seeking views on the proposals to ban the use of certain materials. The Government will produce a detailed impact assessment based on the information they receive from the consultation to inform its final policy decision

(Click Here)

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This Year’s Model – The CIC BIM Protocol Revised

June 26th, 2018

by David King

The BIM Protocol was first published by the Construction Industry Council (CIC) in February 2013. It was one of a number of documents prepared to support the Government BIM Strategy (May 2011), with its mandate for publically funded construction projects to be undertaken using BIM Level 2. To this end the BIM Protocol sought to provide a legal framework to facilitate and promote the use and exchange of electronic data; which by its nature is less immediately visible.

The first edition set out specific obligations, liabilities and limitations on the use of building information models – typically based on a 3D design model. Clearly defining permitted use was seen as particularly important, insofar as the model may have been developed only to the extent necessary for design coordination; not necessarily for any other purposes – quantities take-off, sequencing, fabrication, etc.

Another key aspect addressed the risk that electronic data might be altered (inadvertently or otherwise) in the process of transmission, leading to inconsistencies, anomalies and errors – particularly when converting from the system and format used by originator to an alternative system or format.

However, it did generate some comments. The general principle that the protocol, as a contractual document, should take precedence over the existing agreements was questioned widely; as was clause 6 covering Intellectual Property Rights, which stated that “any rights … shall remain vested in the Project Team Member”. While this was understandable from the perspective of designers who had spent much time and money developing “content” for their models, it did not provide for flexibility and often required amending – not least for government projects!

As standards developed it became clear that a greater degree of consistency in terminology would help create better understanding of the roles and processes involved.

The highly anticipated and long awaited second edition of the BIM Protocol, originally scheduled for release last year, was eventually published on 10 April 2018. This is now closely aligned with PAS 1192-2 (and so applies to all information – not just models) but also reflects updates and additions across the framework – most recently PAS 1192-5:2015 (Security), and PAS 1192-6:2018 (Health & Safety). An update of PAS 1192-2:2013 is currently in the pipeline, and a new PAS 1192-7:2018 (Structured digital product information) is scheduled for release later this year.

So what else has changed? It is certainly a more flexible and user-friendly document, which can be used in conjunction with a range of different contracts – the introduction to the new edition highlights that the “Protocol was drafted for use with all common construction contracts”; and the NEC/ICE have already issued a practice note on how to use the CIC BIM Protocol with NEC4 (Click Here).

The twelve principal changes from the first edition (refer to clause 2 for details) are summarised as:

  1. Responsibility Matrix – The Protocol now includes a Responsibility Matrix, instead of a Model Production and Delivery Table.
  2. Information Particulars – Appendix 2 now refers to the Employer’s Information Requirements for the Project and the BIM Execution Plan; both required by PAS 1192.
  3. Permitted Purpose – determines how information can be used; now refers to: (i) level of definition (rather than level of detail), consistent with PAS 1192-2; (ii) status code of information, which indicates approved ‘suitability’ for use of information at stage of issue; (iii) functional state of the Project Information (work in progress, shared, published, etc.); and (iv) the purpose for which the information was prepared.
  4. Protocol and Agreement – the Protocol now ‘piggy backs’ on the prime Agreement, and takes precedence only if, and to the extent that, there is a conflict in respect of key provisions (clause 3, 4 and Appendix 1 or 2 of the Protocol) – creating a minimum set of consistent obligations without overriding the agreed contractual position any more than necessary.
  5. Co-ordination – a new process is included for coordinating information and resolving inconsistencies (clause 2.1-2.2), and the statement that Models takes precedence has been removed as this is not always appropriate.
  6. Standards, Methods and Procedures – processes in PAS 1192-2 are typically followed for BIM to clarify the basis on which information is produced and exchanged, and the Employer here commits to preforming its obligations under the Standards, Methods and Procedures set out in the Information Particulars (clause 3.1.2).
  7. Common Data Environment (CDE) – Project Team Members here commit to sharing and publishing information using the CDE Process; the Employer ensuring that Project Team Members can use the CDE Process to the extent necessary to perform their obligations.
  8. Programme – Specified Information must be shared and/or published during the stage and at times stated in the Responsibility Matrix, the Information Particulars or the Agreement – i.e. not subject to ‘reasonable endeavours’.
  9. Interoperability – a key issue on any BIM project; Project Team Members now give no warranty that their software is compatible with that of any other Team Member/Employer. This is more balanced than the first edition, in which team members gave “… no warranty as to the integrity of electronic data” per se (first edition, clause 3.5).
  10. Copyright – the copyright provisions are now more flexible. Clauses 6.2–6.4 (stating that team members retain copyright and grant a licence) only apply if the Agreement contains no provisions regarding intellectual property; if the Agreement contains such provisions they apply to the Material (Specified Information, etc.) ‘back-to-back’. So the Protocol can be used unamended even if the team member will not retain ownership of its intellectual property (e.g. because it will be transferred to the Employer).
  11. Security – a key factor on any project using BIM, as outlined in PAS 1192-5:2015. The new edition therefore refers to: (i) the Built Asset Security Manager; (ii) Security Requirements; (iii) Sensitive Information; and (iv) Employer Remedies if security obligations are breached.
  12. Appendices – the ‘pro forma’ Appendices have been updated to align with the updated Protocol; and are now available in an editable electronic format.

The principal objective “to provide a legal framework to facilitate and promote the use and exchange of electronic data” is unchanged; supporting the move towards a collaborative digital future. Also, the CIC BIM Protocol remains the only model legal document of its kind in the UK, so this updated, more flexible and easier to use edition is likely to see greater uptake in the years ahead; meaning less reliance on separate ‘ad hoc’ Electronic Data Exchange Agreements.

A free download of the new BIM Protocol is available on the CIC website (Click Here).

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Making Best Use of Experts in Complex Disputes

June 26th, 2018

by John Gouldsmith

Facilitated Multi Discipline Expert Meeting Process for Multi-party Disputes and ADR

For a complex dispute which is likely to turn on technical issues, how can parties make best use of multiple experts across different disciplines?

Probyn Miers has recently concluded a Facilitated Multi-disciplinary Expert ADR process for a multi-party dispute. This involved a series of 16 multi-disciplinary Without Prejudice (WP) expert meetings over a period of about 4 months, facilitated by an independent neutral chair, in order to address the complex technical issues of a dispute, narrow issues, and deliver a combined ‘open’ joint statement to assist the parties in settlement negotiations.

Litigation was already advanced, and with four parties and 12 technical experts an efficient method of analysing complex technical issues was needed in order to: understand alleged defects more clearly; establish and agree on material facts; undertake further site investigations; share data and the results of forensic studies; evaluate remedial strategy options; and understand the range of expert agreement and disagreement.

WP expert meetings were scheduled for every two weeks or so with dates agreed at the outset. This allowed attendance and planned absence to be managed. These meetings were led by a distinguished independent facilitator jointly appointed by the parties under a ‘facilitation agreement’. Each party bore its own costs of the process which were agreed to be irrecoverable.

In this dispute, 12 individual experts (supported by assistants) brought expertise in facade engineering, façade structural engineering, cladding design, materials and architecture.

As the series of meetings progressed, documents were uploaded to a shared website, and discrete Joint Reports were prepared for different topics.

Innovatively, some WP expert meetings were also attended by technical and design representatives of some of the parties (Technical Advisors), where this was agreed by the experts. For example, Technical Advisors provided input and feedback on current state of the art computer modelling and analysis, and also made presentations on developing remedial options. Some Technical Advisors provided general input to a number of meetings, others were invited to give one off, or a short series, of presentations. Remedial options, mock-ups and samples were also presented and considered at the WP expert meetings. This proved very useful and essential to maintaining momentum when considering certain issues. However, it also required constant attention by the facilitator and experts, to ensure that the ‘rules of engagement’ were respected and followed.

Certain discussions or parts of the process were conducted between expert and facilitator only. Others were conducted in a number of breakout meetings of focused technical expert discussion (with technical advisors where appropriate), which then reported back to the main meeting.

The provision of forensic analysis and technical design inputs and presentations by the Technical Advisors, greatly informed the expert discussions, and moved some issues on further than would be possible by expert meeting only.

The Facilitated Multi-disciplinary Expert ADR process led to the compilation of a comprehensive Joint Report on the issues in dispute, signed by all experts. This was then used to inform negotiations and, ultimately, to achieve settlement via mediation without further expert input.

Following the successful conclusion of the process, there was much positive feedback regarding the approach taken, and to recommend it as a suitable way forward for certain disputes involving multiple parties, complex design, varied workmanship issues, numerous alleged defects and multiple interfacing construction contracts.

There are some watch points that are worth bearing in mind, however; these include the need for:

  • A robust and independent facilitator.
  • Clarity in the terms of reference.
  • Clearly described output goals.
  • Clear deadlines for deliverables.
  • Maintaining awareness of different areas of expertise and avoiding experts straying outside of those areas.
  • Providing shared access to record information for all the experts
  • Allocating (and curtailing) time to ensure that all relevant topics are addressed appropriately.

The process enabled the experts to apply their knowledge most effectively to a complex technical dispute in the interest of all parties and the Court.

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