In recent times, there has been an increase in the parties favouring memorial style pleadings over more traditional common law pleadings. A memorial style pleading requires an expert assessment to determine the claims pleaded by a party to the case. Naturally, this would increase the role and the responsibility of the Expert in any dispute. The article briefly discusses the challenges Expert’s face in providing Expert Evidence to the Tribunal in memorial style pleadings. My experience predominantly lies in matters of Delay and Quantum; hence I shall discuss challenges faced by experts in these matters.
To overcome from the challenges, the Expert, when making a delay assessment, he or she should consider the following:
Not to solely rely on the programming data
Verify the contemporaneous updated programmes, particularly the actual start, actual finish and completion status at each window periods.
Verify and validate the accuracy of the progress or asbuilt data being entered into the programme derived from the factual data and records.
Determine the total floats and be cautious about the same.
Sort out the most reliable data and understand how the project was planned to be completed vis-à-vis how it was actually completed.
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What are memorial style pleadings in arbitration?
Memorial style pleadings combine the parties’ statements of case with supporting witness statements and expert reports from the outset, as opposed to traditional common law pleadings which follow a staged process with multiple rounds of submissions and disclosure.
What challenges do experts face in memorial style pleadings?
Experts often:
- Rely only on the documents provided by one party, which may be incomplete or biased.
- Receive little opportunity to exchange or compare views with the opposing expert.
- Must form opinions without the full picture of the dispute, requiring a proactive and investigative approach.
- Face compressed timelines and pressure to deliver comprehensive opinions early.
How does delay analysis differ in this format?
In memorial style pleadings:
Experts typically use retrospective methods, like As-Planned vs. As-Built (APAB), requiring accurate as-built data.
Conflicting critical paths across multiple project documents pose interpretation challenges.
Experts must reconstruct actual delay impacts without the benefit of interacting with the opposing expert or clarifying conflicting narratives.
What makes quantum analysis difficult under this approach?
Quantum experts often receive data in an unstructured “”kitchen sink”” format. This means:
Information is incomplete or poorly organized early in the process.
Sampling techniques used in common law pleadings are less feasible.
Experts must review entire data sets instead of relying on sampling, significantly increasing workload and complexity.
How can experts overcome these challenges effectively?
To navigate memorial style pleading complexities, experts should:
Validate all data rigorously, avoiding reliance on programming assumptions alone.
Adopt a common-sense and transparent approach understandable to a non-technical tribunal.
Consider multiple perspectives before forming conclusions.
Allocate extra time for initial investigation and maintain flexibility in developing analyses.