The Shard, 32 London Bridge Street
SE1 9SG, London, England
Austin Duffy is counted among the very best arbitration experts in the English market, and sources confirm that he is “excellent on the stand” and “a very good expert”.
I am a chartered engineer with over 30 years of experience in the design, procurement, construction and commissioning of complex and high-value construction/engineering projects globally. I have been instructed as an independent expert on project/construction management performance matters, as well as an expert on programming and delay in international arbitration on many occasions. I lead Kroll’s construction projects advisory team and I am regularly retained to provide strategic advice on major capital investment programmes.
What do your clients look for in an effective expert witness?
Strong subject matter expertise tends to be foremost in clients’ and lawyers’ minds when instructing an expert. This is particularly important in professional negligence cases where it is imperative that the expert has relevant practical experience (e.g., as a construction manager or a client-side project manager) to provide a well-considered, objective and credible opinion which will be rigorously tested in cross-examination. Experience aside, other important factors clients and lawyers look for in selecting an effective expert witness include availability, strength and depth of the support team and testifying experience.
What is the philosophy behind your approach as an arbitration expert witness?
My approach is based on a clear understanding that my written reports and evidence are to assist the tribunal in its deliberations, a duty which overrides any obligation to the party that has appointed me. Accordingly, I always endeavour to be accurate and thorough in my investigation of the contemporaneous records and in my review of the factual witness evidence.
What challenges and opportunities do virtual arbitration hearings and proceedings present to expert witnesses?
During the period of covid-19 restrictions, I gave evidence in virtual arbitration hearings on several occasions. On one particular matter, the tribunal, the experts, the parties and their legal teams were based in four different locations around the globe with the proceedings live-streamed in three different languages simultaneously. Although finding timeslots across the different time zones was a challenge, as it restricted the duration of daily proceedings, I found the entire process to be very efficient and certainly cost effective for the parties.
Why should neutrality be the foremost value a party-appointed testifying expert embodies?
Neutrality is paramount for both party-appointed and tribunal-appointed experts. At the beginning of the arbitral lifecycle, an independent expert can greatly assist its appointing party by providing well considered and objective advice which negates unmeritorious claims being advanced from the outset. During proceedings, it ought to be relatively straightforward for independent experts reviewing the same factual matrix to openly discuss and narrow the issues between them, thereby reducing the points of disagreement to be considered in cross-examination, and ultimately decided on by the tribunal.
How has the dynamic between arbitral tribunals and experts changed over the years?
In my experience, as matters in dispute become more complex with ever increasing amounts of evidence to consider, tribunals require experts to provide clear, concise and well-considered opinions. I have also found that the appointment of tribunal-appointed experts, particularly where tribunal members have a civil law background, to be more common. Where I have been retained as a tribunal-appointed expert on project management and programming matters, I have found it very insightful and rewarding to work closely with reputable and well-respected tribunal members.
How do you effectively prepare for cross-examination and/or hot-tubbing?
I prepare for cross-examination and/or hot-tubbing by having a detailed understanding of my own expert evidence, the pleadings, factual witness evidence and the evidence of any technical experts. I then ensure that I have a clear understanding of the areas of disagreement with my opposing expert(s). This allows me to present and explain the reasoning behind my opinion to the tribunal in a clear and concise manner, knowing that I have fully considered my opposing expert’s opinion. I also attend the cross-examination of the key factual witnesses, as points arising from such cross-examination may have implications for my own expert evidence.
How is AI and technological developments affecting the analyses you conduct? How do you anticipate it will affect analyses moving forward?
Advances in technology and use of artificial intelligence is already having a notable impact on how experts undertake their work. Over the last decade, I have seen fundamental changes in how contemporaneous records are compiled on large-scale projects, ranging from extensive hard-copy records stored in secure containers on site (which then need to be laboriously scanned and converted into searchable electronic format) to highly efficient project information management systems and databases on remote servers, where substantial volumes of data are readily available in a user-friendly format.
The use of automated workflows and thematic searches of large amounts of contemporaneous data and factual witness evidence has allowed expert teams to review ever increasing amounts of factual evidence in a more time and cost-effective manner.
Moving forward, I anticipate that as disputes become larger, more complex and produce even greater amounts of data, the use of artificial intelligence tools (e.g., advanced e-discovery and integrated automated workflow models) to assist analysts will be welcomed. That said, I expect the role of the subject matter experts in deciphering complexity and assisting tribunals will remain for some time.
What key skills and traits would you encourage the next generation of arbitration experts to develop?
I always encourage junior colleagues to: (i) work with and learn from experienced experts, take constructive feedback onboard and develop your own expert style; (ii) seek opportunities to work on a variety of different matters and continually build your experience and CV; (iii) never stop asking questions; (iv) be diligent and thorough in your research and analysis; (v) look at new ways of approaching their analysis utilising data and emerging technologies; and (vi) build your network and remember that the junior lawyers of today will be the partners instructing you tomorrow.