11th April 2019
An Expert in Marine Surveying?
Lee Warltier MIIMS, a Director of Sterling Global Marine Limited, reflects wistfully on a ‘tough day in court’ having attended the annual 2016 Bond Solon Expert Witness Conference.
Friday 4th November 2016 marked a rare occasion for some as it was the largest gathering of registered Expert Witnesses in the UK to date. Should we attend? Our contemplation was clouded by the idea that yet again we would sit in a stuffy room with a bunch of ‘old boys’, most of whom were medics of some description and the focus of the day would be the lunch. Well it worked for us; and the lunch of slow braised beef cheek was exceptional to by the way.
Church House within the confines of the Palace of Westminster, London, was our home for the day and the main auditorium our base. This marvellous studio took a direct hit during a bombing raid of the Second World War, its immense structure withstanding the attack and so for the remainder of the war it became the home of both houses of parliament. We sipped tea (china cups and all!) in the same room that Sir Winston Churchill announced to the world the sinking of the German battleship Bismarck. It made you feel privileged to be there and certainly I’d consider the location fitting for the intended conference.
In short summary, the 2016 Annual Bond Solon Expert Witness Conference was excellent. Joining leading expert witnesses working in civil, criminal and family law allowed for a huge wealth of experience and expertise to be available and whilst originally anticipating the usual dribble of law and what we can and cannot do (and that which we must) I was swiftly taken aback at the immense relevance of the subject matter of the day to my current work. Starting with a keynote address from Lord Justice Fulford (the senior presiding judge for England and Wales) which gave a very topical introduction to the common issues faced by the courts today regarding the handling of expert testimony. We were then entertained by the hilarious Mr Clive Statford Smith from across the pond in the USA. Mr Smith, a human rights lawyer, focused on the case of Dr Waney Squire and questioned the validity of some of our most relied-on legal processes. He has fought hard for his clients against ‘expert processes’ such as hair analysis and his research has unveiled massive flaws in such processes leading us to question if expert evidence is really as solid as everyone thinks. Several short seminars followed focused on key updates to the Civil Procedure Rules (CPR) which for some might cast a shadow of dread if you have not been keeping up with such things; the advent of digital technology for expert evidence and now testimony which then led to a rather healthy debate across the floor. The afternoon for us civil guys, having been separated from the large group of medical experts (who seem to be getting younger) and the family crew (even younger) considered the impact of our most favourite subject this year; Brexit and this has greater relevance than you might think! The day was rounded up by Senior Costs Judge Gordon Staker breaking down the basics of cost control and focus, particularly regarding expert fees and their relevance.
Okay. So; this year’s conference focused on changes in the law, technological implications and the impact of Brexit. An all-round success across the board. Totally relevant for all industries however there was just one problem; no marine surveyors were present. I kid you not – none. Other than a field specialist in Dynamic Positioning I was the only ‘marine surveyor’ in attendance. Dwarfed by the crowds of architects, quantity surveyors, RICS candidates, psychiatrists, accountant’s legal beavers and medics covering a variety of fields I felt rather unloved. On several occasions, I was asked about my trade and specialisation; all good questions of course but there was a base line to this which was the stereotypical idea that marine surveyors are cross trade enthusiasts without qualification. Many times in conversation when describing what I do for a living I was asked the question “What qualification do you have?” and heard the phrase from another “Anyone can be a surveyor.” I’m lucky. Having spent much of my short life to date on the water, I’ve got a degree in a parallel relevant subject, obtained sea time on yachts and with the Navy and have since partaken in the Diploma schemes founded to remove this type of stigma. My training however, will never be over. My field of expertise rests with ‘expert valuation’ having completed over 100 this year to date with several in arbitration at present. This is in addition to high value logistics (specifically the handling and securing of high value cargoes) an area in which I have worked and studied for more than ten years. Explaining these basic facts to my peers at the conference won me some points and by the end of the day you could say I was one of them but nonetheless always feeling slightly like a guest amongst others.
My situation was worsened slightly when the advent of expert fees was discussed in the afternoon. A little unsure of where the data came from Bond Solon produced a spreadsheet to all delegates giving a breakdown of expert’s fees including hourly rates, report production costs and court appearance costs etc. (apparently from survey data). I was slightly dismayed to see that on all levels the marine surveyor was listed as the lowest in all fields. Whilst I expect barristers, solicitors, consultants and superhero grade medics to hold a higher status in terms of chargeable income I thought the marine surveyor would sit slightly higher than tree surgeons and driving instructors; perhaps on a level par with quantity or building surveyors but alas no. We are at the bottom of the pile. This raises the question of where did this information come from; is it entirely accurate and who out there is charging just £60 per hour for expert witness testimony? Not only should we be looking at the standardisation of qualification within our industry but I think it is about time we started looking at standardising fees also. The difference in fee structure throughout our own membership at the IIMS is huge; often when working quayside you may have two or three surveyors on site representing different parties all of which charge hugely different sums for what is effectively the same work – is this fair, or indeed correct?
Having heard our CEOs Seawork speech regarding the requirement to raise professionalism within our industry I’ve always been rather sceptical about such subjects; however, being placed in a room full of internationally accredited experts opens one’s eyes to the opinion of our eld and knowing that there are several marine surveyors working as expert witnesses, though none were present at such a gathering, nor to my knowledge hold membership to any of the associations relevant. I think it is perfectly understandable where the negative opinion is sought and I would welcome discussion from any of our membership who work in the expert witness field on how they maintain their standards of association with some of the legal institutes. Working with the administration once I am hopeful we may see a return in representation of these groups at future conferences, so watch out. I personally am an active member of the activities with both Bond Solon as a training academy but also the Academy of Experts which give unrivalled support to their membership. Check them out!
Moving forward I think the reputation of the marine surveyor is somewhat tarnished in the eyes of parallel industries and the IIMS is working toward the correction of this. There is lots to do on both a fee and professional training sense. The expert witness world is one where one poor performance can end your career at an instance. There are several examples which can be given which include i) Allen Todd Architecture Ltd V Capita Property & Infrastructure Ltd (2016) EWHC2171 where the confidence was lost in the appointed expert due to the delays and lack of communication; the claimant sought to change experts mid trial. Another example is provided in ii) Arroyo & others V Equion Energia Ltd (2016) EHC 1699 where a class action was brought about in which the experts were criticised for making assumptions and trying to bolster the claimants case. There are several examples which show how fragile your reputation can be and the simple transition from marine surveyor into an expert witness is not as easy of some might think.
It would be interesting to complete an assessment of our membership to find out who our experts are and what qualities them to be as such. I would pose the following questions to our would-be experts:
- When did you last receive an update to the Civil Procedure Rules (specifically part 35 which relates to the appointment of expert witnesses)?
- Is your knowledge of the requirements of the CPR and relevant parts enough to guide you through the process should you receive an appointment?
- When was the last time you received training in courtroom skills and perception?
- Do you know how to write an expert witness report, its legally required content and the formatting necessities required?
I would welcome any ‘experts’ within our membership that are keen to collaborate on the issues raised to contact me…
This article was originally published by the International Institute of Marine Surveying http://iims.org.uk in The Report, December 2016, Issue 78 page 54 – 56
• Bond Solon 2016 Expert Witness Conference literature.
• Key note speech of Lord Justice Fulford.
• Speech of Senior Costs Judge Gordon Staker.
• Allen Todd Architecture Ltd V Capita Property & Infrastructure Ltd (2016) EWHC2171.
• Arroyo & others V Equion Energia Ltd (2016) EHC 1699.
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