A seemingly increasing number of disputes or arguments relating to coating, lining or corrosion issues culminate in the involvement of a technical expert or consultant. Sometimes, if the parties are serious about their positions or if large sums of money or prestige are at stake, lawyers also get involved. However, the roles that technical experts and lawyers undertake in such disputes often become blurred or indefinite, and this can become problematic or may jeopardise the correct, objective and impartial settlement of the dispute. A lawyer is hired to advocate his client's position, and too often, the technical expert - possibly in a misguided attempt to provide the best possible service to his client - also assumes, adopts or morphs into an advocacy role, risking his technical credibility. This paper outlines the role and modus operandi that good and effective technical experts should take in disputes, and gives some examples of cases where experts have abandoned their primary roles as factfinders and fact-interpreters, and have become hired guns or duelists.
The purpose of this paper is to provide a resource for technically-skilled people in the coatings and corrosion fields that may find themselves in a position where they have to either write technical reports or witness statements, give technical evidence, or act as an expert witness in dispute proceedings - especially those that become legal - related to their field of knowledge. This can be a daunting prospect to a first-time participant in construction litigation, even to someone with an excellent technical knowledge of their subject. Several legal practitioners that I have had the pleasure of working with on past high-level disputations related to coatings and corrosion matters have provided input to this paper. Their input has been invaluable in compiling a list of Dos and Don'ts; providing practical definitions of legal terms; descriptions of the litigation and arbitration processes; giving guidance on format, style and the nature of witness statements. I am indebted to their contribution. The following paper is written in the context and terminologies of the legal and dispute resolution system of most states, territories and the Commonwealth of Australia. It is similar to that in use in other parts of the world, but local differences, terms, laws, regulations and practices will always prevail.
We live in a very litigious world. With all too common regularity, one party to a contract or project will feel that he has been wronged or disadvantaged and he will seek some redress, extra payment, damages or a discount, or some other form of compensation or rectification. There are various levels of dispute ranging from a minor disagreement such as whether a particular item of plant or area is included in the scope of work, or if the inspector's interpretation on DFT (dry film thickness) achievement meant that spot or full coat touch-up is needed; up to multi-million dollar claims for delays, premature coating or asset failure, or a lack of conformity to project documentation risking fitness-for-purpose.
