Thought Leaders

Derek Nelson is a chartered quantity surveyor and a chartered engineering surveyor with 38 years of construction programming, cost and contract management experience. He is an accredited and certified expert witness; fellow of the Academy of Experts and the Royal Institution of Chartered Surveyors; and an accredited mediator and expert determiner. Derek authored chapter 17, “Disruption To Progress And Lost Productivity”, of Delay and Disruption in Construction Contracts (fifth edition, first supplement).

What attracted you to a career as an expert witness?

As a commercial manager with a large contracting organisation, I inherited a number of projects with disputes in arbitration. That experience led me to complete an LLM in construction law, with a view to enhancing my understanding and bridging a divide between the technical, commercial and legal aspects of projects. My first expert appointment was before the Scottish courts in 1998, to independently vouch for construction costs attached to a golf resort. In retrospect, I was astonishingly naive as to what was involved and what was expected when I agreed to do that. It was a steep learning curve. That said, they were definitely “gentler times” for experts.

The “attraction”, if that is the appropriate word, lies in the challenge and forensic nature of the role, while objectively bringing my professional experience and understanding to bear, with a view to assisting the tribunal in their determination of the dispute before them.

In all of that, I am very conscious of the need to maintain a balance of professional practice to ensure that my core competences remain current, and do not become out of date – as is the risk for some career experts. 

What do you enjoy most about working on construction matters?

The first 20 years of my career were spent on site helping to deliver construction projects. Before that I would work with my father on building sites during school holidays, etc. Combining that practical project experience with my professional qualifications as a chartered quantity surveyor and commercial manager, to successfully influence the outcome of a project, is immensely satisfying. Driving past certain projects still elicits the proud statement, “I worked on that!”

No two construction projects are the same and they each face their own challenges and issues. That keeps it both fresh and interesting. The same applies to expert work, usually with increased intensity.

How do you prepare for a testifying case?

Every case is a testifying case, until it is not. Preparation begins at appointment with clear instructions and a clear recognition of the role and function of the expert. Delivering that role independently and objectively is key. That approach best serves clients’ interests, as it gives them the best information to make good business decisions, and fulfils the requirements and obligations of an expert’s role in assisting the tribunal. I have seen named experts who do not prepare their reports themselves – or who operate on the basis that, should the matter look like it will proceed to a hearing, and they will have to testify, then they try to get into the detail at that stage. That is too late and a huge disservice to both their client and the tribunal.

With cases becoming more complex and multinational, how do you ensure that projects run efficiently?

International arbitrations, with their scale and complexity, are projects in their own right. Many of the project management techniques applied to construction – planning, scheduling, budgeting, resource management, monitoring, etc – can be brought to bear. As projects become more “data rich”, the management and investigation of that data has become key to successfully and efficiently marshalling the contemporaneous record of fact. Good and trusted expert assistants underpin effective delivery and are an element of successful expert work that deserves more recognition. Couple that with collaborative working tools, data forensics and analysis and you create an environment within which appropriate expertise can be brought to bear efficiently and effectively.

How do cases come to your attention?

Most of my expert appointments originate from referrals from counsel or clients that I have previously worked with. That is always flattering.

There is that perennial problem of how you get your first appointment. The first question to a potential expert is usually “Have you been appointed?” followed by “Have you testified?” If the answer to the first is no, that can be challenging to overcome. I was fortunate that my first appointment arose from an approach to the firm that I worked for, and that my experience at the time satisfied the requirements.

What is the best piece of career advice you have received?

Three things have stayed with me.

“Choose a job you love.” I am not sure that I “chose” it, but I am very fortunate that I do something that is both challenging and satisfying.

“If a job is worth doing…” Essentially, take pride and ownership of what you do – a mantra of my father.

And, “Thought, belief and action drive achievement” – put much more eloquently by Muhammad Ali and Jesse Jackson.

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?

I would like to be the best that I can at what I do. There are always things to learn and apply that will help me to achieve that.

Derek is a chartered quantity surveyor and chartered engineering surveyor, with over 35 years of construction and engineering experience. He has acted as expert on over 50 occasions in delay, disruption and quantum matters.

Derek has held senior commercial and contracts positions for major international contractors and owners across Asia, Europe and the Middle East. His expertise includes matters of quantity surveying practice, valuation, damages, contract administration, contract management, commercial management and cost management, which he combines with his tested planning and delay analysis capabilities.

In addition to his expert commissions, Derek continues to provide clients with contractual advice, claims preparation and contract administration services on major contracts worldwide. He specialises in the preparation, negotiation and settlement of claims, whether disruption, acceleration or prolongation. Derek delivers advice and procedures to rapidly resolve or avoid disputes in a cost-effective and timely manner.

Derek is both an accredited and certified expert witness, fellow and current chairman of the Academy of Experts and has acted as a delay and quantum expert witness in arbitration, conciliation, litigation and mediation and as an expert determiner. He has been cross-examined on over 10 occasions and has delivered concurrent evidence in disputes from Belize to Brunei and Scotland to Singapore. Alongside his work as an expert adviser for ongoing projects, Derek undertakes the role of "project neutral", independently reviewing international projects in preventative, on-the-job dispute resolution.

Aside from his extensive accreditations and wide experience, Derek is often called upon to deliver training and seminars on contractual problems, claims preparation, negotiation and dispute resolution. Derek contributed the chapter "Disruption to Progress and Lost Productivity" to Delay and Disruption in Construction Contracts (fifth edition, first supplement).

He has a strong reputation with peers and clients alike and is described as someone who "performs well in cross-examinations" and offers "professional and consistently high-quality work", while referred to as "usually the quickest to comprehend the crux of a matter and from there he offers and communicates the practical options or solutions". Derek is "a gifted quantum expert" and commended for his "vigilance" during construction disputes. His technical background, coupled with his "intimate knowledge of international construction law and arbitration hearings", ensure that he is "highly sought after to testify in disputes".

Derek Nelson is a fellow and current chairman of the Academy of Experts, having acted as expert determiner, adjudicator, mediator and panel member of the Chartered Institute of Arbitrators' business arbitration scheme, with extensive experience as an independent expert witness in litigation and domestic and international arbitration.

A chartered quantity surveyor and a chartered engineering surveyor and commercial manager, Derek is an accredited and certified expert witness, an accredited mediator and accredited expert determiner. His experience covers 40 years in the construction industry.

Derek is frequently retained to prepare independent expert witness reports in construction and engineering disputes in litigation, arbitration, adjudication and conciliation. He is an accredited expert and fellow with both the Academy of Experts and the Royal Institution of Chartered Surveyors, as well as a certified expert witness through Cardiff University and Bond Solon, who has been appointed in the role of independent expert witness on over 70 occasions, addressing issues in combination of delay, quantum and disruption and the interaction of the same and has testified in both court and arbitration proceedings on such matters on over 15 occasions, including giving concurrent evidence. 

He has successfully acted on behalf of both referring and responding parties in a number of adjudication referrals under statutory provisions in the UK, Singapore and Malaysia, and internationally in connection with dispute adjudication and dispute review boards and is accredited as an expert determiner with The Academy of Experts.

Derek is a contributing author to Delay and Disruption in Construction Contracts, fifth edition, first supplement, chapter 17, 'Disruption To Progress And Lost Productivity'.

To date, Derek’s geographical experience includes Belgium, Belize, China, Denmark, Finland, Germany, Hong Kong, India, Indonesia, Ireland, Italy, Japan, Lao, Malaysia, Philippines, Poland, Portugal, Russia, Singapore, Slovakia, Sri Lanka, Sweden, Taiwan, Thailand and Vietnam.

He has a strong reputation with peers and clients alike and is commended for "the breadth and depth of his experience". Derek “performs well under cross-examination” according to respondents, who praise his “clear and well-researched reports”. The “impressive” Derek Nelson is a “much respected” figure in the market, commended by respondents for his outstanding work dealing with quantum, delay and disruption disputes. The "highly respected" Derek Nelson is recognised for his "depth and breadth of technical know-how and industry experience" when it comes to complex construction disputes. Derek Nelson has a broad international practice and impresses peers with his "high- quality reports, well substantiated conclusions and excellent performance under cross-examination". Derek Nelson “performs well in cross-examinations” and offers “professional and consistently high-quality work” whilst referred to as “usually the quickest to comprehend the crux of a matter and from there he offers and communicates the practical options or solutions”. Derek is “a gifted quantum expert” that is commended for his “vigilance” during construction disputes. Nelson’s technical background coupled with his “intimate knowledge of international construction law and arbitration hearings” ensure that he is “highly sought after” to testify in disputes.