It has been remarked that it is always a mistake to argue with an idiot: the idiot will drag you down to his own level, where he will beat you on experience.
Something of the same principle applies when we construction lawyers have to litigate a construction dispute before a generalist court with little or no construction or engineering expertise. At its worst, of course, it is a court which might be hearing a criminal case one day, and a construction case the next. And one of the worst features of such a court is a propensity to apply the strict rules of evidence.
A competent and experienced construction tribunal will, for very good reason, ignore pretty much all of the rules of evidence which, in a construction case, have the capacity to waste huge amounts of time and money, and to lead to anomalous results.
What are the rules of evidence? My copy of Cross on Evidence (the 9th Australian edition) runs to 1475 pages, and I am not intending in this post, of course, to attempt to summarise them all. The one that is best known to nonlawyers is probably the rule that the past criminal record of an accused may not be disclosed to a jury. This is an aspect of the similar fact rule, that the prosecution is not permitted to put forward evidence that the accused has a propensity to commit a particular type of crime.[1] Many of them, are highly technical and subject to lengthy and complex exceptions. However, by way of very brief indicative summary, they Continue reading
After several years, I have today