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. Many of them, are highly technical and subject to lengthy and complex exceptions. However, by way of very brief indicative summary, they include:
- the prohibition of leading questions in examination in chief. A leading question is one which either suggests the answer desired, or which assumes the existence of disputed facts. Thus for example it would not be permissible to ask a witness, “Did you get an electric shock when you touched the switch cabinet?” Very broadly, any question to which the answer is “yes” or “no” is likely to be objectionable. So is any question which includes a premise which has not yet been established. So it is not permissible to go straight to the point and ask a witness, “What happened when you touched the switch cabinet?”. It has first to be established that the witness did touch the switch cabinet. And it is not permissible to ask the witness “Did you touch the switch cabinet?”. Instead, the examining counsel has to ask some sort of open question like, “What was the first thing you did on that day?” And hope that the answer does not come back, “I smoked a cigarette and had a crap”;
- the hearsay rule: evidence of what someone said is inadmissible as evidence of the accuracy of that statement. Thus, for example, if a site foreman admitted in a site meeting in front of 20 people that he had been regularly falsifying the site diary, and then disappeared so as to be unavailable for trial, then none of those 20 people could give that evidence about that falsification of the site diary;
- The rule in Jones v Dunkel: this is the rule that an unexpected failure by a party to call witnesses may lead to an inference that the uncalled evidence would not have assisted that party’s case. Suppose, for example, there is written evidence in a cost plus case that an operative habitually knocked off early. Even though that written evidence may, of itself, be sufficient, the operative might need to be subpoenaed; otherwise, a failure to subpoena him might negative that written evidence;
- the rule in Browne v Dunn: the general drift of this rule is that if a court is to be invited to disbelieve a witness, the grounds upon which the evidence is to be disbelieved should be put to the witness in cross-examination. The practical impact of this, in a construction case, is that if the strict rules of evidence are to be applied, cross-examination of both lay witnesses and expert witnesses has to be tediously lengthy. Thus, if a witness is obviously lying from start to finish, then the other party cannot simply, in closing, make the case that the witness was obviously lying. Instead, cross-examination has to go through every single reason why the evidence is obviously false, otherwise it is effectively deemed to be true;
- the best evidence rule: happily, this absurd rule is now largely superseded, but remnants of it remain. Its basic drift is that only the best evidence of anything is admissible, which means that originals of document have to be produced in court (there are now substantial exceptions to this rule);
- the expert evidence rule: unless a witness slots into the expert witness category (a previous order having been made for that expert evidence, the witness having delivered a written expert report etc), he or she is not allowed to express an opinion about anything. A witness of fact might be called, for example, to give evidence as to the times at which a particular workforce started work in the morning and finished work in the afternoon. But objection might be taken if that witness of fact is asked whether the workforce was wearing the necessary safety gear. Even if the witness of fact was the safety officer on site, the strict rules of evidence would say that all the rigmarole attending expert evidence would have to be gone through before any evidence be accepted as to this. Strictly speaking, it is a matter of opinion, requiring expert evidence, as to whether the wearing of shorts and sneakers is compliant with the safety regulations;
- The similar fact rule mentioned above applies to civil proceedings as well as criminal proceedings. Thus, where an insurer is seeking to demonstrate that an insured deliberately and fraudulently lit her own property on fire, evidence was not admissible of 7 other fires in premises owned by members of her family over the preceding 20 years.
Most sensible people regard these rules as absurd. In the criminal context, the issue might well be simply one of identification: was the accused – or was he not – the person seen slinking away from the scene of the housebreaking crime? All sorts of things might be relevant to that question. One thing that may well be relevant is that the accused had 50 previous convictions for housebreaking. Lawyers who earn their living from lengthy criminal trials are much keener than the rest of us on the sorts of rules. For those lawyers, the rules have three particular advantages. First, they give criminals a much better prospect of being acquitted of crimes which they have committed, and so the criminals are much more likely to think it worthwhile to plead not guilty. Secondly, the rules are of such mind-boggling complexity that both prosecution and defence are more likely to engage experienced and hence expensive counsel. And thirdly, the length of trials is considerably extended, which is very good news for anyone being paid by a daily refresher.
If these rules of evidence were truly valuable, one would expect them to be more or less universal. But they are not. Different legal systems have radically different approaches to these questions, and what is forbidden in one jurisdiction may well be perfectly acceptable in another. Even within common law jurisdictions, there are very marked differences between the rules of evidence which are applied.
Not only are there differences from jurisdiction to jurisdiction, but there are differences between different methods of dispute resolution within jurisdictions. The rules of evidence are applied in some dispute resolution mechanisms, but not in others. And here’s the thing. My observation is that the dispute resolution mechanisms which ignore the rules of evidence work much better than the dispute resolution mechanisms which apply them. I can think of numerous of instances of the rules of evidence wasting time and money, and leading to anomalous results, but I can think of no instance in a construction case where the application of the strict rules of evidence has led to a better or to a fairer result.
Let us take it from the top. In court litigation, the rules of evidence are applicable. In practice, specialist construction courts take a much more relaxed attitude to them than generalist courts. Where an objection is raised as to the admissibility of a particular piece of evidence, specialist courts tend not to waste too much time listening to technical arguments about the admissibility of that evidence, but instead tend to just get on with it, letting the evidence in and dealing with the weight (if any) to be attached to that evidence in the judgment. Knowing this, specialist construction counsel tend not to take to many technical objections about evidence, except of course where evidence becomes lengthy, tedious and of no useful value. It is the criminal barristers, straying into the construction area, who regularly rise to their feet making objections about the admissibility of evidence, because that is what they are used to in the criminal courts.
In arbitration, the theoretical starting point is that arbitrators are bound by the rules of evidence, but in practice, they are typically applied in construction arbitrations, if at all, with a much lighter hand, and arbitrators can usually disapply the rules. Further, where an arbitrator does not follow the strict rules of evidence, it is far from easy to challenge the process on that basis; objections to the admission of evidence might well be waived if the objection is not made at the time.
In expert determination, the rules are not applicable at all, and neither are they applicable in adjudications, nor in mini-trials, nor in proceedings before review boards.
Do we see any evidence that these processes suffer in any way from their escape from the strict rules of evidence? Far from it. In large measure, stakeholders have voted with their feet. They sensibly choose such processes when they can.
As a construction lawyer, it is not for me to say what useful purpose, if any, is in fact served by the rules of evidence in other areas of the law such as crime. But in the field of construction and energy law, I see no evidence that these rules have any legitimate place in the resolution of disputes. It would be a useful reform to allow judges trying construction cases to dispense with them, as can arbitrators.
 Cross #21010
 Cross #17150.
 Sheldon v Sun Alliance (1988) 50 SASR 236.
 Attorney-General v Davison (1825) M’Cle & Y 160.
 The Arbitration Act 1996 (UK) provides at section 34:
Procedural and evidential matters
(1) It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.
(2) Procedural and evidential matters include–
(f) whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented;
Likewise in Australia, see eg Commercial Arbitration Act 2010 (NSW) at section 19:
Determination of rules of procedure
(1) Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Act, conduct the arbitration in such manner as it considers appropriate.
(3) The power conferred on the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
86 More specifically, the increasing use of Expert Determination in lieu of arbitration or litigation in commercial disputes confirms, as [Robert Hunt, “The Law Relating to Expert Determination” (2002) 18 BCL 2] suggests, “that the users of dispute resolution services have created a demand for an additional adjudicative process called expert determination as an alternative to litigation or arbitration” (at 14). Principally, as Hunt continues, “[p]roponents of these processes saw them as offering the prospect of less formal processes (often with no lawyers involved) with substantial savings in time and legal costs” (at 2).Indeed, on a practical level, Expert Determination has apparently been attractive, largely because it is less expensive and speedier, avoids the rigours of the application of the rules of evidence and procedure and offers a finality which avoids delays, potential re-hearings and appeals, which is particularly suitable especially where an expert knowledge of the subject is required or where the parties may have a continuing relationship.