Key quantum expert cases

The articles are five minutes, so while we will provide some context to the case, for the most part the detailed facts and the findings are not overly relevant to quantity surveyors as expert witnesses. Instead, we will focus on what was said about the quantum expert and what aspiring and experienced quantum expert witnesses should consider when giving expert evidence.

Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd (No.2 Quantum) (2018) EWHC 1577

Link to full judgment

There were numerous judgments delivered in the Merit Merrell case, and this 2018 judgment concerned the assessment of the quantum of damages following significant defects and delays associated with pipework installed by Merit for ICI's paint manufacturing facility.

Firstly, ICI relied on a witness of fact who was a quantity surveyor who served a lengthy witness statement largely dealing with quantum for the liability trial. The quantity surveyor’s role was to prepare a final valuation; however, in the disclosure of evidence, there were very few emails between the quantity surveyor and his client. This was challenged, and it turned out that there was, in fact, an attempt to hold a substantial number of the emails between the quantity surveyor and the client back under legal professional privilege. There were concerns raised that this was an attempt to disguise the quantity surveyor’s role in the case as an expert witness rather than a witness of fact.

This case is a reminder that a quantity surveyor needs to be clear whether they are acting as a witness of fact or as an expert witness.

Quantum expert evidence was also served by both parties. The court was not impressed with the Joint Statement prepared by the quantum experts, describing this as “a most unhelpful document” [167] and describing the efforts by the quantum experts as an “unsatisfactory state of affairs” [168]. The experts did not narrow or resolve the issues, with only occasional minor items being agreed, and two Scott Schedules were served because the experts could not agree on one. The expert’s duty is to the tribunal, and here the judge considered that the experts had not done enough to help the court assess the correct value. It was said in the judgment that “No judge, even in the Technology and Construction Court, can be expected to embark him or herself upon a detailed valuation of every part of a contractor's final account or final assessment, particular when the works were (as here) very detailed and the project had developed through numerous design changes over a long period of time” [166].

It was left to the court to decide which expert evidence it preferred, and it sided with ICI’s quantum expert, saying that there was a “remarkable contrast in the quality of the expert valuation evidence” [206]. The reasons for this preference were “firstly, that he took as his starting point the contractual agreement between the parties, which is essential if one is attempting to perform a valuation under a contract; and secondly, that he performed his exercise independently” [205].

Here the experts should have tried harder to work together to identify any items that could be agreed.

Van Oord UK Ltd v Allseas UK Ltd (2015) EWHC 3074 (TCC)

Link to full judgment

In Van Oord, the court addressed whether unforeseen ground conditions entitled a subcontractor to additional payments under a subcontract incorporating NEC Option B.

The court remarked that the quantum experts instructed by the parties had an unenviable task in assessing the value of the items in dispute; however, (as with Merit Merrell discussed above), the court was not happy with the difference in approach taken by each of the experts. The court found that evidence from the Allseas expert was preferred, and it was said that the expert was “an independent and clear expert witness” [99] but did “sometimes take his desire to seek alternative figures too far”.

For the most part, this is relatively unremarkable; two experts give evidence, and the court prefers one over the other. What made this case interesting to aspiring experts is that Van Oord’s expert made a “frank admission that he had not previously prepared a written expert’s report or given evidence in the High Court” and “was dealing with a serious illness in his family”. The court “endeavoured to give the quantum expert the benefit of the doubt” [80] but “came to the conclusion that his evidence was entirely worthless” [80].

This conclusion probably wasn’t helped by the expert making an abrupt departure from the witness box at a short break, never to return. The court remarked that this was “an indication of the undoubted stress he was under". The aspiration to become an expert might be a noble one, but this case is a reminder that the role of an expert is difficult and challenging, and one should not take the role and duties lightly.

Costain Ltd v Charles Haswell & Partners Ltd (2009) EWHC 3140 (TCC)

Link to full judgment

This case concerned a design recommendation made by Haswell, which was found to breach its duty of care and entitled Costain to recover additional costs incurred due to the change in foundation design.

In contrast to Merit Merrill and Van Oord, the court remarked that it was “greatly assisted” by the quantum experts who were called to give evidence by the parties. The issues, due to the nature of the dispute, were complex, and in joint statements, the quantum experts made an agreement where they could and justified their differing valuations where they could not agree, leaving the court to decide on matters that could not be agreed.

Final reflections

These cases highlight the challenges that quantum experts, as with any witness giving an opinion, will face at trial. The valuations will be scrutinised, and compliance with your duties will be tested. As the Van Oord case proves, it is not for the faint-hearted, but the Costain case is a positive example of two experts assisting the court by working together and agreeing what items they can but respectfully disagreeing where they cannot.

In next week’s article, we will build on this article by looking at another three key cases relevant to quantum experts.

Keep an eye out for that, and, in the meantime, enjoy the rest of your week!

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