![]() ![]() Or an engineer brought in by a claimant to design remedial works (which are subsequently challenged as excessive) may refer to his experience of rectifying comparable building failures in the past. For example, an engineer after describing the foundation system which he designed may (and in practice frequently does) go on to explain why he believes that this was appropriate to the known ground conditions. Having regard to the guidance of the Court of Appeal and the established practice in TCC cases, I conclude that in construction litigation an engineer who is giving factual evidence may also proffer (a) statements of opinion which are reasonably related to the facts within his knowledge and (b) relevant comments based upon his own experience.However, such evidence is usually valuable and it often leads to considerable saving of costs. Such opinion evidence does not have the same standing as the evidence of independent experts who are called pursuant to CPR rule 35. As a matter of practice in the TCC, technical and expert opinions are frequently expressed by factual witnesses in the course of their narrative evidence without objection being taken.Otherwise they would not have been engaged upon such projects in positions of responsibility. In relation to major engineering projects (such as Wembley Stadium or the M6 Toll Road) those factual witnesses are likely to have very considerable expertise. ![]() Most factual witnesses called are possessed of technical knowledge and expertise. This question arises with particular frequency in litigation in the Technology and Construction Court. This question arises in many fields of litigation, for example professional negligence actions where the defendant is a witness of fact but also wishes to justify his actions by drawing upon his professional experience.Alternatively, can he include statements of professional opinion bearing upon facts within his personal knowledge? The question then arises as to whether Mr Taylor is confined to giving evidence of fact, without including his expert opinion on matters.The second point to note is that Mr Taylor, like several other witnesses in this case, is a highly qualified and experienced engineer, who was involved for many months in the Wembley project.” …”I shall therefore treat Mr Taylor as a factual witness who (a) is possessed of considerable engineering expertise and (b) has personal knowledge of the roof design and erection engineering decisions which were made in the period February 2004 to October 2005.Permission has not been obtained or sought under CPR rule 35.4 to call expert evidence in relation to the “roof” issues which Mr Taylor addresses. CPR Part 35 constitutes the “rules of court” referred to in section 3 (1) of the Civil Evidence Act 1972. He is not independent of CB, having been employed by a company in the Cleveland Group for the last eleven years. He has no experience of giving expert evidence and no knowledge of the requirements for giving expert evidence. In relation to admissibility, the first point to note is that Mr Taylor is called a factual witness.A lay witness, himself a highly qualified engineer who had been involved in the project, provided a witness statement which contained considerable “expert opinion”. Multiplex Constructions (UK) Limited -v- Cleveland Bridge UK Limited EWHC 2220(TCC) was a case relating to the building of Wembley Stadium. JACKSON J: THE LIMITS OF EXPERT EVIDENCE A LAY WITNESS CAN GIVE This section has received surprisingly little attention from the courts being mentioned in passing in several cases. “In this section ‘relevant matter’ includes an issue in the proceedings in question.” “where a person is called as a witness in any civil proceedings, a statement of opinion by him of any relevant matter on which he is not qualified to give expert, if made as a way of conveying relevant facts personally perceived by him, is admissible of evidence of what he perceived.” Section 3(2) of the Civil Evidence Act 1972 states: “… the new Practice Direction does not change the law as to admissibility of evidence or overrule the directions given by the previous authorities, including in the Court of Appeal, as to what may be given in evidence.” Opinion evidence is often included, and often struck out or ignored. The judgment of Sir Michael Burton in Mad Atelier International BV v Manes EWHC 1899 (Comm) shows that it is essential for civil litigators to have detailed knowledge of what is “opinion” evidence and when it is allowed in a witness statement.
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