Expert Witness Services
Expert Services International is experienced in the preparation and administration of joint expert reports, participation in concurrent evidence proceedings and the delivery of expert presentations to arbitral tribunals and courts. These procedures are central to modern dispute resolution in common law jurisdictions and are increasingly adopted in international arbitration.
Expert Procedures
Joint expert reports, concurrent evidence and expert presentations represent some of the most significant procedural developments in modern dispute resolution. These procedures serve a common purpose: to narrow the issues in dispute, to identify areas of agreement and disagreement between experts, and to present complex technical and financial matters to the decision-maker in the most effective and accessible manner possible.
These procedures are well established in common law jurisdictions, particularly in Australia, the United Kingdom, Singapore, Hong Kong and Canada. In international arbitration, the CIArb Protocol for the Use of Party-Appointed Expert Witnesses, the IBA Rules on the Taking of Evidence and the procedural rules of leading arbitral institutions all provide for expert meetings, joint statements and concurrent evidence procedures. Civil law jurisdictions typically use court-appointed experts rather than party-appointed experts, but international arbitrations involving civil law parties increasingly adopt these procedures by agreement or at the direction of the tribunal.
Joint Expert Reports
A joint expert report is prepared following a meeting or conference between the parties' respective experts. The purpose of the meeting is to identify the issues on which the experts agree, the issues on which they disagree, and the reasons for any disagreement. The resulting joint statement serves as a roadmap for the court or tribunal, narrowing the scope of contested expert evidence and enabling the decision-maker to focus on the matters that genuinely remain in dispute.
The Federal Court of Australia Practice Note GPN-EXPT requires parties intending to rely on expert evidence to consider at the earliest opportunity whether a conference of experts should take place to prepare a joint report. Expert witnesses must provide the court with a joint report specifying matters agreed and matters not agreed and the reasons for experts not agreeing. In the United Kingdom, CPR Part 35.12 provides that the court may direct discussions between experts for the purpose of identifying and discussing expert issues and, where possible, reaching agreed opinions. The experts must prepare a statement for the court setting out the issues on which they agree and disagree, with individual copies signed within seven days of the discussion.
In international arbitration, the CIArb Protocol (Article 6) establishes a procedural framework for joint meetings between experts, the preparation of joint statements and the identification of issues requiring oral evidence. The IBA Rules on the Taking of Evidence (Articles 5.3 and 5.4) provide that the tribunal may order party-appointed experts to meet and confer in order to reach agreement where possible and identify outstanding areas of disagreement. These meetings are conducted without the tribunal, parties or counsel present, ensuring that the experts can engage in frank and open discussion.
The joint statement typically records, for each area addressed in expert evidence, whether the experts agree or disagree and the reasons for their respective positions. There is no prescribed format, but a schedule format with columns and rows, similar to a Scott Schedule, is often the most effective means of presenting the areas of agreement and disagreement in a clear and structured manner. The joint statement should be signed by the experts at the conclusion of the meeting or as soon as practicable thereafter.
Concurrent Evidence
Concurrent evidence, commonly referred to as hot-tubbing, is a procedure in which the experts of both parties give their evidence together before the court or tribunal. Rather than each expert being examined and cross-examined sequentially in the traditional manner, the experts are sworn in at the same time and participate in a structured discussion chaired by the judge or arbitrator. The judge or arbitrator puts questions to each expert in turn on the same issue, and the experts may also question and respond to one another directly. Counsel retain the right to ask questions and to cross-examine on points not raised by the presiding officer.
The procedure originated in the Australian courts in the 1980s and has since been adopted in the United Kingdom, Singapore, Hong Kong, Canada and increasingly in international arbitration. The Federal Court of Australia Practice Note GPN-EXPT includes Concurrent Expert Evidence Guidelines as an annexure, and the process is typically preceded by the preparation of a joint report identifying the issues on which the experts still disagree. In the United Kingdom, the TCC Guide provides that concurrent expert evidence involves both parties' experts giving their evidence together in a discussion chaired by the judge, with the agenda based on the joint statement prepared before the hearing.
In international arbitration, hot-tubbing is particularly well suited given the more flexible and informal nature of arbitral proceedings. The CIArb published its Guidelines for Witness Conferencing in International Arbitration in 2019, providing a flexible structure that allows parties and tribunals to adopt concurrent evidence provisions in a manner that best suits the particular arbitration. The procedure is valued by arbitral tribunals because it focuses attention on the issues that genuinely divide the experts, promotes efficiency and provides a more effective means of exploring areas of disagreement than sequential examination.
The practical advantages of concurrent evidence are considerable. The decision-maker hears the competing expert positions on each issue at the same time, rather than hearing one expert's evidence and then waiting for the opposing expert's evidence days or weeks later. This contemporaneous comparison enables the decision-maker to assess the relative merits of each expert's reasoning while both positions are fresh. The process also tends to produce more measured and balanced expert evidence, as each expert is aware that the other expert will immediately respond to any assertion that is unsupported or overstated.
Expert Presentations
Construction and infrastructure disputes frequently involve complex technical, financial and programming matters that are not easily explained through written reports and oral testimony alone. Expert presentations using visual aids provide a means of translating these matters into a format that is accessible to the decision-maker, whether that is a judge, arbitrator or adjudicator. Well-prepared visual presentations can make complex conclusions and methodologies accessible, keep proceedings focused, and provide a reference point for the critical issues in dispute.
Expert presentations commonly employ timelines to illustrate the sequence and duration of events, charts and graphs to present financial or statistical data, annotated drawings and photographs to explain construction defects or site conditions, three-dimensional models to demonstrate spatial relationships, and computer-generated simulations to illustrate delay and disruption scenarios. Programme and delay analysis in particular benefits from visual presentation, as the relationships between activities, the critical path and the impact of delay events are inherently visual and can be difficult to communicate effectively in narrative form alone.
The preparation and delivery of expert presentations requires careful attention to the procedural rules and practice directions applicable in the particular forum. Demonstrative exhibits must be based on reliable data that both parties have had the opportunity to interrogate, and the presentation should supplement rather than replace the expert's written report and oral evidence. Arbitral tribunals and courts are generally receptive to well-prepared visual presentations, and decision-makers have indicated that visual aids assist materially in understanding complex technical and financial issues.
Governing Frameworks
Practice Note GPN-EXPT requires parties to consider the need for expert conferences and joint reports at the earliest opportunity. The Practice Note includes the Harmonised Expert Witness Code of Conduct and Concurrent Expert Evidence Guidelines as annexures. Part 23 of the Federal Court Rules 2011 provides the procedural framework for expert evidence, and the Court's Expert Evidence Guide provides practical guidance on joint report preparation and concurrent evidence.
CPR Part 35.12 empowers the court to direct discussions between experts and to require a joint statement setting out issues of agreement and disagreement. The TCC Guide provides detailed procedures for concurrent expert evidence (hot-tubbing) in construction disputes. Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims provide further procedural direction on expert meetings, joint statements and expert evidence generally.
The CIArb Protocol provides a procedural regime for the use of party-appointed experts in international arbitration, including provisions for joint meetings, joint statements and the manner of expert testimony (Article 6). The CIArb Guidelines for Witness Conferencing in International Arbitration (2019) provide a flexible structure for concurrent evidence adapted to arbitral proceedings. Parties and tribunals may adopt the Protocol in whole or in part.
The IBA Rules (2020 revision) provide for party-appointed expert evidence (Article 5), including requirements for expert independence (Article 5.2.c), expert meetings and conferences to narrow issues (Articles 5.3 and 5.4), and second-round expert reports addressing new developments. Article 6 provides for tribunal-appointed experts. The Rules are widely adopted in international arbitration as a procedural framework for managing expert evidence.
Our Practice
Expert Services International is experienced in the preparation, administration and resolution of joint expert reports. We participate in expert conferences to narrow the issues in dispute, to explain areas of disagreement, and to prepare joint statements in a format that is clear and useful to the decision-maker. We have given presentations to arbitral tribunals and courts to explain complex quantum, delay and technical matters using visual aids, timelines, annotated drawings and programme analysis.
We are experienced in concurrent evidence proceedings, having prepared for and participated in hot-tubbing before tribunals. Our approach to concurrent evidence is to present measured, well-supported expert opinions that are capable of withstanding direct challenge from the opposing expert in the presence of the decision-maker.
Service Scope
Preparation for and participation in expert conferences, including the identification of issues for discussion, preparation of draft agendas and schedules, and the drafting and finalisation of joint statements recording areas of agreement, disagreement and the reasons for each expert's position.
Preparation for and participation in concurrent evidence (hot-tubbing) proceedings before courts and arbitral tribunals. We prepare experts for the particular dynamics of concurrent evidence, including direct engagement with the opposing expert on contested issues in the presence of the decision-maker.
Preparation and delivery of visual presentations to arbitral tribunals and courts, including timelines, programme analysis, annotated drawings, financial summaries, three-dimensional models and delay simulation graphics. We translate complex technical and financial analysis into formats that are accessible and persuasive.
Advice on the procedural requirements and best practices applicable to joint reports, concurrent evidence and expert presentations in the particular forum, including compliance with the Federal Court GPN-EXPT, CPR Part 35, the CIArb Protocol, the IBA Rules and institutional arbitration rules.
