What Does an Expert Witness Do in a Construction Dispute? A UK Guide
Construction disputes often involve technical questions that cannot be answered through legal arguments alone.
A disagreement may involve defective foundations, piling problems, structural movement, ground conditions, design responsibility or whether construction work was carried out in accordance with the design.
This is where an expert witness may be required.
An expert witness provides an independent professional opinion on technical matters within their area of expertise. In civil proceedings, the expert's overriding duty is to assist the court rather than act as an advocate for the party who instructed them.
For construction and engineering disputes, this may involve reviewing technical documents, inspecting a site, analysing calculations and drawings, identifying the cause of a defect and preparing an expert report.
What Is an Expert Witness?
An expert witness is a suitably qualified professional who provides specialist knowledge on an issue that requires technical expertise.
In a construction dispute, this could be a structural engineer, geotechnical engineer, civil engineer or another specialist with relevant experience.
The expert's role is different from that of a solicitor or barrister. Legal professionals deal with the legal aspects of a dispute, while the expert provides an independent opinion on technical matters.
For example, a dispute may involve questions such as:
Why has a building experienced structural movement?
Were the foundations suitable for the ground conditions?
Was a piling system designed or installed appropriately?
What caused a retaining wall to fail?
Was the construction carried out in accordance with the design?
What technical work is required to remedy a defect?
The expert investigates the technical evidence and provides an opinion based on their professional knowledge.
When Might You Need an Expert Witness?
Expert evidence may become relevant when a construction dispute involves a technical issue that requires specialist knowledge.
This can happen during or before court proceedings and may also arise through other forms of dispute resolution.
Common examples include structural defects, foundation problems, piling disputes, ground movement and disagreements over design or workmanship.
For structural issues such as cracking, movement or suspected defects, a structural engineering assessment from JPMANN may help establish the technical issues involved before expert evidence is prepared.
Structural Defects
Cracking, movement, settlement, deflection or other structural problems may require investigation to establish the likely cause.
An expert may review drawings, calculations, photographs, inspection records and other available evidence before forming an opinion.
Foundation and Piling Disputes
Foundation problems can involve complex interactions between the structure, foundation system and ground conditions.
A geotechnical or piling expert may be asked to investigate issues involving:
Pile capacity
Pile installation
Ground conditions
Settlement
Pile testing
Foundation design
Pile deflection
Ground movement
Piling methodology
For disputes involving pile capacity, design or installation, JPMANN's Pile Design services provide a relevant technical area of expertise.
Design Responsibility Disputes
A dispute may arise over whether a structural or geotechnical design was appropriate for the project.
An expert can review the design information, assumptions, calculations and relevant technical standards before providing an independent opinion.
Construction Defects
An expert may be instructed to investigate whether construction work has contributed to a failure or defect.
This could involve reviewing construction sequences, site records, photographs, drawings, specifications and inspection information.
Ground Movement and Subsidence
Movement in the ground can affect foundations, walls and other structural elements.
Determining the cause may require consideration of the property's construction, foundation type, soil conditions, drainage, nearby works and previous alterations.
What Does a Construction Expert Witness Actually Do?
The exact scope depends on the dispute and the questions the expert has been instructed to address.
The process may include reviewing documents, carrying out a site inspection, undertaking technical analysis and preparing an expert report.
1. Review the Available Evidence
The expert will normally need to understand the technical background before reaching an opinion.
This may include:
Structural and geotechnical drawings
Design calculations
Ground investigation information
Site photographs
Construction records
Inspection reports
Method statements
Test results
Correspondence
Previous technical reports
The purpose is to establish the relevant facts and identify the technical issues that need to be considered.
2. Inspect the Site Where Required
A site inspection can help the expert understand the physical condition of the structure or ground.
Depending on the dispute, the inspection may involve examining cracking, movement, foundations, retaining structures, piling works or other construction elements.
Not every dispute will require a site inspection. The appropriate investigation depends on the technical questions being considered.
3. Analyse the Technical Issues
The expert considers the available evidence against relevant engineering principles, design information, standards and professional knowledge.
For example, a piling dispute may require consideration of the original ground conditions, pile design, installation records and testing information.
The expert should also consider evidence that may contradict their initial view. Under CPR Part 35, an expert's duty is to provide objective assistance to the court.
4. Prepare an Expert Report
Where expert evidence is permitted, it is generally provided in a written report unless the court directs otherwise.
The report should clearly explain the technical issues, the evidence considered, the expert's reasoning and the conclusions reached.
Under Practice Direction 35, an expert report should include information such as the expert's qualifications, material instructions, relevant material relied upon, conclusions and the expert's declaration concerning their duty to the court.
5. Answer Questions or Provide Further Evidence
An expert may also be asked questions about their report.
Under CPR 35.6, written questions may be put to an expert for clarification, subject to the applicable requirements and timescales.
In some cases, an expert may also be required to attend a hearing and give oral evidence.
What Is an Expert Witness Report?
An expert witness report is a formal document setting out the expert's independent technical opinion.
It is not simply a longer version of a standard engineering report.
The report needs to address the specific questions relevant to the dispute and explain the reasoning behind the conclusions.
A well-prepared report should make it clear:
What happened → What evidence supports it → What technical principles apply → What caused the issue → What conclusions can reasonably be reached
The report should also identify any limitations where the available information is insufficient to reach a definite conclusion.
An expert should not present an opinion outside their area of expertise or imply certainty where the available evidence does not support it.
Does an Expert Witness Work for the Person Who Hired Them?
An expert is instructed and paid by a party, solicitor or another instructing organisation, but their role in court proceedings is not to act as an advocate for that party.
Under CPR Part 35, an expert's overriding duty is to help the court on matters within their expertise. That duty overrides any obligation to the person who instructed or paid them.
This is one of the key differences between expert evidence and ordinary professional advice.
The expert's opinion should be independent and objective.
Can an Expert Witness Help Before Court Proceedings?
Yes.
Expert technical input can sometimes be useful before formal proceedings begin.
A technical investigation may help the parties understand the underlying issue, identify areas of agreement and disagreement, and establish what further evidence may be required.
The Civil Procedure Rules also encourage parties to consider whether disputes can be resolved without commencing court proceedings.
However, whether a particular report can later be relied upon as expert evidence in court depends on the circumstances and the court's directions.
Expert Witnesses for Structural, Geotechnical and Piling Disputes
Construction disputes often cross more than one engineering discipline.
For example, a foundation problem may require consideration of both structural behaviour and ground conditions.
A piling dispute could involve:
Geotechnical conditions
Installation methodology
Pile testing
Structural loading
Construction records
Ground movement
Settlement
This is why the expert's experience should match the technical issue being investigated.
For structural disputes, relevant expertise may include structural design, structural failure, defects and building movement.
For geotechnical disputes, the investigation may involve foundations, piling, ground movement, retaining structures, soil conditions or ground improvement.
JPMANN's wider geotechnical and foundation design services cover areas including piling, foundations, ground improvement and geotechnical engineering.
What Types of Construction Disputes Can Require Expert Evidence?
Expert evidence can be relevant to a wide range of construction and engineering disputes.
Foundation disputes
Questions about foundation adequacy, settlement, ground conditions or design assumptions.
Piling disputes
Issues involving pile design, installation, testing, capacity or construction methodology.
Structural defects
Cracking, movement, deformation, instability or other suspected structural problems.
Retaining wall disputes
Questions concerning design, ground pressure, movement, drainage or construction.
Ground movement disputes
Technical investigations into settlement, subsidence or other forms of ground movement.
Design and workmanship disputes
Questions about whether construction work followed the relevant design, specification or engineering requirements.
What Should You Look for When Appointing an Expert Witness?
The expert's experience should be relevant to the specific technical issue rather than simply being broad construction experience.
Consider:
Relevant engineering qualifications
Professional experience
Experience with similar technical problems
Experience preparing expert reports
Experience with construction disputes
Understanding of relevant engineering standards
Ability to explain complex technical issues clearly
Availability within the required timescale
It is also important to establish exactly what questions the expert is being asked to answer.
The court controls the use of expert evidence, and CPR Part 35 states that expert evidence should be restricted to what is reasonably required to resolve the proceedings.
Court, Arbitration and Adjudication
Expert evidence is not limited to traditional court proceedings.
Construction and engineering disputes can also involve arbitration, adjudication and mediation.
The form and requirements of expert evidence can differ depending on the dispute resolution process, so the expert should understand the relevant procedure and the purpose of the report.
For JPMANN, this is particularly relevant to disputes involving piling and geotechnical engineering, which are already central to the company's Expert Witness service.
When Should You Speak to an Expert Witness?
It can be useful to obtain technical advice early when a dispute involves a significant engineering question.
Early involvement may help identify what evidence exists, what further investigation may be necessary and which technical questions need to be answered.
For example, if a building is experiencing unexpected movement, waiting until the dispute has developed fully may mean that important evidence or site conditions have changed.
The appropriate timing will depend on the circumstances of the case.
Frequently Asked Questions
What is an expert witness?
An expert witness is a suitably qualified professional who provides independent expert evidence on technical matters within their area of expertise.
What does an expert witness report contain?
An expert report normally explains the technical issues, evidence considered, expert qualifications, reasoning and conclusions. It must also comply with the applicable court rules and directions.
Does an expert witness have to be independent?
For civil proceedings, an expert's overriding duty is to assist the court. The expert should provide an objective and independent opinion rather than act as an advocate for the instructing party.
Can a structural engineer act as an expert witness?
Yes, where they have the appropriate qualifications, experience and expertise relevant to the technical issues in question.
Can a geotechnical engineer act as an expert witness?
Yes. Geotechnical expertise can be relevant to disputes involving foundations, piling, ground movement, retaining structures, soil conditions and other ground-related issues.
Can an expert witness attend court?
An expert may be required to give oral evidence where the court directs or permits it. The exact requirements depend on the proceedings and court directions.
Can expert evidence be used in arbitration or adjudication?
Expert evidence can be used in various forms of construction dispute resolution, including arbitration and adjudication, subject to the applicable rules and procedures.
Conclusion
Construction disputes often involve technical questions that require more than an interpretation of contracts or correspondence.
An appropriately qualified expert witness can investigate the technical evidence, identify the relevant engineering issues and provide an independent opinion that helps the parties or tribunal understand the dispute.
For structural, geotechnical and piling matters, the expert's technical experience should match the issue being investigated. The expert should also understand the requirements for producing independent and properly supported expert evidence.
JPMANN provides structural and geotechnical engineering expertise for construction-related disputes, including matters involving foundations, piling, ground conditions and structural issues.
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