Lawyer Monthly - August 2022

Peter Jerome BSc, MSc, MRICS, MCIArb Quantum Expert Ankara Consulting (Australia) Pty Ltd Level 27, 101 Collins St, Melbourne VIC 3143, Australia E: Tel: +61 3 8680 2496 share of good and bad experiences from both perspectives. On one major rail project, our claims support engagement was carried over to the dirty expert role when our client, the main contractor, commenced arbitration proceedings in respect of significant disputed claims for time and money. During the course of the project, we had prepared comprehensive claim documents which had been strategised and coordinated with our client’s lawyers, who had also been brought in at an early stage. Our client’s case had strong legal merits and the claims had been well put together with supporting quantum and delay analysis and documentary evidence. As a result, the parties settled the dispute at a significant sum before the substantive involvement of the clean expert. One of the key roles of a dirty expert is to provide advice on how the claims should be prepared to litigation or arbitration standards together with supporting evidence required to prove the claims. However, the dirty expert also needs to anticipate what a clean expert will need in terms of how evidence is analysed and presented in the claims so that their assessment will substantially support the client’s case. I have been involved in several disputes as a clean expert where the appointed dirty expert was not experienced in arbitration proceedings and their claim preparation was evidentially insufficient. In one such oil and gas dispute, a quantity surveying dirty expert’s services were ended prematurely because they did not have the expertise to deal with such a massive and complex claim. They were simply not providing the client with value for money. In another oil and gas dispute, the opposing party’s dirty expert had made comments in script on the clean expert’s draft report. This was subsequently disclosed and showed that the clean expert had adopted these comments word for word in his final report. As a result the case settled immediately, which was a shame, because cross-examination would have been fun! Fromtheseexperiences, canyouoffer anyfinal words for parties interested inadopting this strategy? Care should be taken in selecting the right dirty expert. The term ‘dirty’ expert is not a statement of the expert’s quality (or moral standing)! It just means that the dirty expert is not necessarily impartial, and their duty is to their client. However, I would say that such duty requires the dirty expert to provide objective and realistic advice to their client on the technical merits of the case, before putting the ‘best foot forward’. The dirty expert should be an experienced expert witness in their own right, thereby understanding the requirements of 67 AUG 2022 | WWW.LAWYER-MONTHLY.COM EXPERT WITNESS litigation and arbitration evidence. In fact, for a variety of reasons, leading experts are often engaged to perform the dirty expert’s role. Hence, a dirty expert should be of no less repute and capability than the clean expert – or, dare I say it, expense. The focus should therefore be to engage a dirty expert and clean expert with the specialist expertise most relevant to technical matters in dispute. The term ‘dirty’ expert is not a statement of the expert’s quality (or moral standing)! It just means that the dirty expert is not necessarily impartial.

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