By Michael Grey
If you consider the enormous scope for dispute in any marine “adventure”, actually sorting out these problems is almost an industry in its own right. An argument about charter party terms, the tortured chronology surrounding a casualty, disputes about employment law and its terms and conditions, expensive entitlements after a massive salvage operation or a ship or equipment that failed to do what its manufacturer promised, might be thought of as just some of the areas that demand both legal judgement and technical expertise to reconcile.
Enter the expert witness, which is a possible alternative career option for expert seafarers, who might be looking for a new challenge, which is why the Nautical Institute has published Guidelines for the Maritime Expert Witness; advertised as “essential reading for anyone in the dispute resolution process”. It is also a very sensible and practical guide to exactly what an expert witness does, what expertise or qualifications might be needed for someone aspiring to enter the field and is a compendium of expertise in its own right, contributed by a group of people who are thoroughly familiar with the business. They include former seafarers who have successfully made the transition, along with practising solicitors, barristers, arbitrators, mediators and a former judge.
The expert witness, in short, assists a court in deciding the technical merits of a case in dispute. The reader quickly learns that the overriding duty of the expert witness is to the court and not to anyone who might have appointed them. And while some expert witnesses might suggest that they got into the field almost by accident, there is no doubt that there is great value in training.
I’m afraid that I learned this the hard way, having been asked to provide some expertise by a solicitor friend. It was an area in which I was familiar and I foolishly agreed, before ascertaining what being an expert witness actually meant, and the importance of what I was providing in written evidence. Too late, I asked another friend, who had long experience in the field for some helpful advice and then spent sleepless days and nights re-writing my opinions, with recurrent nightmares involving my public evisceration by learned counsel at the subsequent hearing. Fortunately, in this case, and a handful of others in which I have been involved, the case was settled without the appearance of this apprehensive witness.
“Experts can win or lose a case” is a phrase that leaps out of the text as is the opinion that we are dealing here in English Law with adversarial proceedings, resembling “two armies engaged in battle”. And while it is confidently asserted that “a well-prepared expert has nothing to fear from the most critical counsel or tribunal”, it is also emphasised, by more than one of the authors, that giving evidence can be “a daunting process”. Experts who enjoy the sound of their own voices are also enjoined to curb their enthusiasms and confine their answers to brief summation of facts, the court greatly appreciating “yes” or “no” responses. It is pointed out succinctly by Sir Nigel Teare in his contribution “A View from the Bench” that experts are not supposed to be advocates in their own right!
But this is a useful book that rather than deterring a new generation of experts, may positively encourage some into an interesting career, as it is clear that real expertise has tremendous value and that properly employed, is a vital element in the infrastructure which is such a selling point in maritime London and some of its challengers around the world.
After a foreword by Sir Julian Flaux and introduction by its technical editor John Noble, the chronology of events in a case is explained by David Pockett, along with the duties and obligations of the expert witness. The importance of training – which is available – is emphasised by Mark Solon, while a useful hypothetical case study, involving casualties and salvage issues, gives the reader food for thought. The role of the arbitrator and how an expert witness can progress into arbitration is covered by Keith Hart, while the relationship between maritime lawyers and the experts they employ forms an illuminating chapter.
What of the barristers? Their approach in these cases is explained by Sara Masters and Michael Collett, with a useful insight into the expert’s role in maritime arbitration by Charles Baker. Finally, prior to Sir Nigel Teare’s view from the Bench, Jonathan Lux introduces the perhaps less familiar role of the mediator, who can perhaps assist in resolving disputes without court proceedings. The NI has experience producing these useful publications, with its earlier volumes on the collection of maritime evidence, which offers essential advice to practising shipmasters.
Two items of advice from these Guidelines which have wider and rather current resonance suggest that the expert witness “takes a pride in” the evidence provided and is “honest and truthful”. Check out this useful volume which is available from the NI this month.
Michael Grey is former editor of Lloyd’s List