Rob Palles-Clark, managing director at Kroll, is a quantity surveyor, quantum and delay expert and adjudicator with over 36 years of major international construction project experience. Rob has had over 80 expert appointments and has twice given expert evidence in the Technology and Construction Court (TCC). He has been cross-examined both as a delay and a quantum expert in international arbitrations on many occasions, and he has extensive experience of adjudication and mediation.

What do you most enjoy about your role as a testifying expert?

It is a difficult role to fulfil well, and for me personally, being cross-examined represents the toughest and most rewarding challenges I have faced in my now quite long career. The major international disputes on which I have been appointed in more recent years are complex, and both challenging and demanding. There is huge satisfaction to be had in meeting these challenges on such projects and I really enjoy working with an outstanding, bright and motivated team that delivers time after time. Best of all though, is the sense of relief (and hopefully elation) one gets after hearing the words “thank you Mr Palles-Clark, I have no further questions”.

What is the philosophy behind your approach as an arbitration expert witness?

It ought to be trite to say, that the primary duty of an expert is to provide an independent expert opinion on matters that assist the tribunal with their duty to decide the dispute. Not every expert out there seems to understand this, but it is important not to let your client’s desire to win its case influence your genuinely held independent views, because most tribunal’s can see straight through an expert that does not do so. To do otherwise means your evidence is likely to be disregarded.

Do you think the increase in transparency found in arbitration proceedings has encouraged experts to remain impartial? Or do you think further steps are needed?

There is no doubt that the courts’ willingness to stridently criticise experts who do not behave in a manner consistent with their duties to the court ought to encourage better behaviour in that forum, but my experience of other experts in arbitration is that there appears to be more room for bad behaviour. I think that experts in arbitration have to work out for themselves what type of reputation they want, whether as a hired gun that will peddle an opinion that best suits their client’s case, or as an independent expert who’s opinion is likely to be preferred. I get the most satisfaction from my evidence being adopted by the tribunal.

What challenges do you face with the increased volume of data being used in disputes, and how are you navigating them?

Major construction cases are very document heavy, often running to millions of documents. Experience tells you the types of records or documents to look for in connection with certain types of issue and investigation, but ultimately it is the quality of the team and the search tools or documents platforms through which these documents are accessed that make the difference as to how comprehensively the expert can identify and review the key documents.

What advantages accompany involving experts after the main evidentiary hearing? Why would parties and clients chose to pursue this option?

After the hearing, one can be involved in commenting on and assisting with responding to closing submissions (this helps the legal team with detailed points relevant to the expert evidence), possibly assisting the tribunal in a further hot tubbing session on quantum prior to them deciding the quantum part of an award, or occasionally with checking the quantum calculations in a draft decision, before it is signed by the tribunal. The legal teams I have worked with on major disputes in recent years have all been highly competent and are excellent at distilling the key issues from the evidence, but they often ask for comments to help them do this.

How do you effectively prepare for cross-examination and/or hot-tubbing?

I start with a review of the key issue in the case, where the key differences lie and where the larger sums in dispute are to be found. I reread my reports and the relevant supporting documents, with a particular focus on these issues. Although it has been said that cross-examination is not a memory test, it is a test of your ability to navigate your own report and to answer detailed questions on your approach to the analysis of a cost or issue.

What is the best piece of advice you’ve ever received?

An experienced in-house lawyer for a client in the first hearing on a large complex matter in which I am a quantum expert saw how nervous I was just before taking the stand, and he asked: “What is the worst that can happen – are you going to die?” Of course, the answer is no (unless you are really quite unlucky), and it really helps to remember this.

How do you see your practice developing over the next five years?

I enjoy working on the major disputes, as it always amazes me what we can achieve, often against very difficult odds, but I also hope to spend a little more of my time as a decision-maker, either in adjudications or as a DAB member.