Expert vs. advocate: the difference

In this mini-series, we will focus on quantum expert evidence. There is sometimes a misunderstanding in the construction industry as to what the term ‘expert’ actually means. In a general sense, the word describes someone who is proficient in a certain area, but in a legal sense, the word has a very specific meaning.

Through this mini-series, we would like to help you understand that specific meaning, as well as introduce certain concepts that are relevant to a quantum expert’s role and responsibilities. If you have, or might, procure quantum services, then the articles should help you understand more about what to expect from your expert. For those of you who are, or are thinking about, carving out a career as a quantum expert, then the information will guide you, or remind you, of the essential issues.

We are grateful that Carly Thorpe (Partner in the Walker Morris LLP construction and engineering team) has agreed to co-author this series with our Tom Haley to bring you some guidance on this topic from both a legal and a quantum expert viewpoint.

We kick off the mini-series by covering the difference between advocates and experts.

What is a quantum advocate?

A quantum advocate is someone who helps a party to present and advance their claim or defence. They act on behalf of the party and are not independent.

Typically, a quantum advocate will be engaged to help improve a party's position, whether this is helping them to gather evidence in support of their claim, speaking on their behalf in meetings with the other party, or preparing correspondence and submissions to send to the other party.

There are no strict court or tribunal rules that a quantum advocate has to follow; they have the freedom to present their work in any format they see fit so as to best assist their client, and their duty is to the party who is instructing them.

What is a quantum expert?

A quantum expert is engaged to provide an independent and impartial valuation of items in dispute.

Although they are paid by one of the parties, they are not acting on behalf of that party, and their role is to provide an independent view, which could disagree with the position of the party who is paying them.

In court or adjudication proceedings, the quantum expert has a duty to the judge/adjudicator to act fairly, honestly, and independently. The Civil Procedure Rules contain detailed requirements at Part 35 that a quantum expert must comply with in any court proceedings. Although not strictly necessary, it is recommended that a quantum expert comply with the requirements of Part 35 in adjudication proceedings and pre-action so as to give their evidence more credibility.

A quantum expert must not try to prove a party's position or improve a party's claim, and they should only provide an opinion on matters that are within their expertise. It is important to stick to matters of valuation and not to stray into providing a view on entitlement or interpretation of the contract terms.

The quantum expert must provide their independent view based on the evidence available, and this view should not be influenced by the requests or objectives of the party paying them.

Practical tips and guidance

A quantum advocate is useful if a party lacks either the time or the technical expertise to prepare its claim. For example, a party might engage a quantum advocate to:

• collate all of the documents from the party's systems which support a loss and expense/variations claim, and prepare a report which explains and summarises the documents, so as to make the claim easier to understand and harder to reject; or
• on the flip side, review a loss and expense/variations claim on behalf of the party receiving it and identify arguments that can be made to attack/reject such a claim.

A quantum expert is required where a dispute has arisen that is likely to lead to formal adjudication or court proceedings. Typically, a quantum expert will be engaged by a party to provide a report on the merits of that party's claim/defence. The assessment from a quantum expert will be more persuasive to a tribunal than submissions made by the party alone because the quantum expert is independent. Obtaining a report from a quantum expert also assists a party to identify any weaknesses in their claim, which is useful when considering tactics and any potential commercial settlement.

If you are asked to be a quantum expert, it is important to consider whether you have any existing relationship with any party involved that could be used to argue that your work is not independent. You should also make your client aware that you are required to act independently in accordance with the CPR and that you cannot change your report to support their position.

Final reflections

Before instructing a quantity surveyor, a party should think carefully about the purpose of the quantum report and whether the quantity surveyor is required to take on an advocate or an expert role. As soon as someone is engaged in an advocate capacity, they lose their independence and accordingly can't credibly act as an expert for that party on the claim in the future.

A key question is:

• Do I want the expert to help me make my position better? - in which case an advocate role is required; or
• Do I want to get a second opinion on the merits of the claim? – in which case an expert should be instructed.

In next week’s article, we will look at the specific duties and responsibilities of a quantum expert.

Keep an eye out for that, and in the meantime, enjoy the rest of your week!

Back to articles