Thought Leaders

Doug Neville is a chartered civil and structural engineer with over 35 years of experience in multidisciplinary engineering consultancy design, from many industry sectors. He qualified as a chartered engineer in 1981 and was a director of leading design consultancies until he joined HKA in 2009. Doug has a master’s degree in law (2012). He is a partner in HKA where he practises as an expert witness, and has given evidence in many international arbitrations.

What has been your most interesting case to date, and why?

The most interesting case I worked on concerned the failure of a strategic gas pipeline in Asia. I was one of the leads in a root cause analysis (RCA) programme, where my role was to coordinate my input with that of several other technical experts. This included travel to a remote installation in Asia to select samples of the pipeline for testing in the UK. The RCA considered highly complex technical issues covering the metallurgy of steel production and welding practice for pipelines. In addition to the technical issues, the many layers of management and reporting procedures, overlaid with cultural differences, introduced subtle behavioural issues – all of which had an influence on the analysis. The work gave me a fascinating insight into leading hydrocarbon exploration and extraction techniques, and the consequences when things go wrong.

What challenges does cross-examination under oath pose for engineering experts like yourself, and how do you tackle them?

Being cross-examined under oath can be challenging, especially for the uninitiated. However strong your opinions may be, the opposing counsel is not there to make you look good. Their job is to test your evidence and, in the interests of their client, persuade the decision-maker (court or tribunal) when making an award to place little weight on any of your opinions that are unhelpful to their client. Opposing counsel will employ a variety of techniques to probe and test you, which can be unsettling. In my experience, the best way to tackle this is to remain calm and respectful when giving answers and, where possible, to refer to your report and restate what it says, rather than be drawn into making ad hoc responses that may not fully align with the opinions in your report.

It is also important to recognise why you are there: to assist the decision maker in understanding technical issues. I have found it surprising how often I have to go back to first principles to explain the nature of a technical issue which has, with the best of intentions, been characterised in cross-examination questions quite differently to how the issue would be described in engineering practice.

Lawyers often look for experts experienced at giving expert testimony in arbitration and court proceedings. How can inexperienced practitioners overcome this hurdle?

In an ideal world it would not matter whether an expert has experience in giving evidence. However, in practice many lawyers do not wish to risk the untested expert finding the court or arbitration process too much.

My first appointments as an expert were many years ago when I was working in consulting engineering, and adjudication was being introduced into the construction industry. Looking back, these appointments were not strictly as an expert witness: I was there as a technical adviser, but as the use of adjudication increased my appointments became more formalised. It was this that gave me my first experience of arbitration – a lawyer saw my experience in adjudication and decided that it met their requirements.

While I take responsibility for their work, I often make use of technical assistants. This is an ideal opportunity for a potential expert to learn the ropes and to see first-hand how the expert works and of the landscape of dispute resolution.

There are many training opportunities for prospective experts that cover the whole range of tasks, from report writing to cross-examination to court familiarisation.

My advice to a prospective expert would be to look for an opportunity to act as an assistant to an expert, to sign up for training and then to try to get an appointment in an adjudication.

In what ways has expert witness practice, and its perception by legal professionals and clients, changed since you started practising?

Early in my practice, expert witnesses lost immunity for their actions in court through Jones v Kaney. At the time there was speculation that this would lead to a “chilling” effect on the practice and that the “occasional expert” would be discouraged from practice. Whether due to Jones v Kaney or just a natural development, I have noticed an increase in the professionalism of the practice in the construction industry with more companies offering it as a service, as opposed to the previous prevalence of individual practitioners. I think the main benefit of this is that when lawyers appoint experts, the experts are more likely to know the ropes. They will be familiar with the various steps and stages that a court action or arbitration will go through.

If there is a downside, it is possibly that, with greater legal knowledge, some experts may stray into giving opinions on the legal aspects of a case instead of sticking to the matters they’re asked to give an opinion on.

Another change is in the introduction of presentations and concurrent evidence (“hot tubbing”) to arbitration hearings.

What benefits does hot-tubbing offer to arbitration proceedings where you have to give expert testimony?

The intended benefit of hot-tubbing is to allow the arbitral tribunal to ask questions directly to the experts and to explore issues that may not have been addressed during cross examination.

In my experience hot-tubbing is most effective when its proposed use is flagged up early in the proceedings, and when it is actively controlled by the tribunal chair.

I experienced one occasion when neither happened and the resulting ad hoc, free for all with lawyers, counsel and the tribunal all joining in, was of little benefit to understanding the issues. On the other hand, I have experienced well-run hot-tubbing, where the tribunal asked each of us very perceptive questions, which clearly showed that the tribunal was taking steps to fully understand issues that cross-examination had not addressed or had even obfuscated.

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 part of a dispute arbitration board for the construction of a large infrastructure project. I think the combination of my experience as a consulting engineer and an expert witness on complex projects would be of benefit.

What has been your greatest professional achievement to date?

Passing the LLM in construction law from Strathclyde University as a part-time, mature student. I thoroughly enjoyed the learning experience and the new world it opened up.

Doug is a chartered civil and structural engineer with over 35 years of experience in multi-disciplinary engineering consultancy design. He has acted as technical expert on over 25 occasions.

Doug qualified as a chartered engineer in 1981 and worked with leading engineering design consultancies for almost three decades. He completed a master’s in construction law in 2012 and has worked across the globe on projects ranging from buildings and infrastructure to power, industrial and oil and gas.

Doug is mainly involved with the provision on advisory and expert services relating to technical construction disputes. His specialisms include forensic civil and structural engineering, professional competence and standard of care, and project procurement and performance.

Doug has been cross-examined in many international arbitrations, including participation in concurrent evidence (hot-tubbing) and in several adjudications. He works closely with lawyers and QCs regarding dispute resolution matters and utilises his knowledge of what can go wrong on a construction project, to advise on contract formation and dispute avoidance.

Doug produces articles and delivers seminars on the role of a technical expert, the role of the engineer and related considerations. Alongside his varied engineering qualifications and fellowships, he is a member of the Chartered Institute of Arbitrators and a practising member of the Academy of Experts. Clients and colleagues agree that Doug is “knowledgeable, thorough and reliable”.

Doug is a chartered civil and structural engineer with over 35 years of experience in multi-disciplinary engineering consultancy design. He has acted as technical expert on over 25 occasions.

Doug qualified as a chartered engineer in 1981 and worked with leading engineering design consultancies for almost three decades. He completed a master’s in construction law in 2012 and has worked across the globe on projects ranging from buildings and infrastructure to power, industrial and oil and gas.

Doug is mainly involved with the provision on advisory and expert services relating to technical construction disputes. His specialisms include forensic civil and structural engineering, professional competence and standard of care, and project procurement and performance.

Doug has been cross-examined in many international arbitrations, including participation in concurrent evidence (hot-tubbing) and in several adjudications. He works closely with lawyers and QCs regarding dispute resolution matters and utilises his knowledge of what can go wrong on a construction project, to advise on contract formation and dispute avoidance.

Doug produces articles and delivers seminars on the role of a technical expert, the role of the engineer and related considerations. Alongside his extensive engineering qualifications and fellowships, he is a member of the Chartered Institute of Arbitrators and a practising member of the Academy of Experts. Clients and colleagues agree that Doug is “knowledgeable, thorough and reliable”.