In these joint expert discussions it is worth bearing in mind what are known as the вЂњ Whitford GuidelinesвЂќ. This will often require a discussion between the experts as to an appropriate sampling protocol to be adopted in the proceedings. The Technology and Construction Court (TCC) Guide in England requires, before the first case management conference, the parties to give careful thought to expert issues including any вЂњвЂ¦ appropriate or necessary вЂ¦samplingвЂќ. This is in line with the Civil Procedural Rules rule 32.1 which confers powers on the Court to control evidence. Also, whether the sampled answers can be extrapolated to the unsampled population needs careful attention too.

Despite this, the English Court at least has recently upheld the established position that in principle, a claimant can pursue a claim which relies on sampling for establishing liability or causation of damage, but great care needs to be taken as to how this is executed. The concept of proportionality is not formulaic in nature.Д«eing proportionate must often be set against allegations of abuse of process in that not every claim may be considered on its own merits if shortcuts are taken. Parties and their appointed experts in many jurisdictions are now required to adopt a proportionate approach whereby they do not вЂњ use a sledgehammer to crack a nutвЂќ but this can mean different things in different situations.

In addition to the often-extensive factual evidence, this usually gives rise to the need for expert evidence to be adduced dealing with the cause-and-effect liability issues as well as possible delay and quantum claims which arise as a result. It is not uncommon in large construction projects for disputes to arise which involve several thousand alleged variations (or change orders) and/or alleged defects which need to be considered by the arbitral Tribunal or Court in the formal dispute resolution process chosen by the parties.

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