Reducing Dispute Risk in Construction Projects: The Role of Experts

By Geoff Adair, Stephanie Console, Matthew Liben, Lindsay Rowell and Andrew Kavanagh of Blake, Cassels & Graydon LLP

Involving experts early and thoughtfully in construction projects is critical to mitigating disputes and achieving successful outcomes. Experts provide objective technical analysis, help translate complex data and enhance the credibility of project decisions, all of which position parties to avoid or efficiently resolve disputes.

Here are five ways to make effective use of experts in construction projects:

1. Engage experts during procurement. Subject matter experts play a key role during the planning and in-market procurement stages. They advise on market conditions, help owners draft clear technical submission requirements and evaluation criteria that allow for the differentiation between qualified bidders, and help to develop financial regimes and mechanisms appropriate for the selected contract model. These steps help reduce the likelihood of procurement challenges or failed procurements and support transparent, conflict-free evaluations.
2. Consider early engagement with experts. Engaging with experts during the execution of a complex construction project can help position a party for success before litigation. When complex issues arise that could lead to a litigious dispute, the early engagement of a consulting expert can help a party analyze technical issues, form an action plan and create a favourable record for potential litigation. When the time comes, retain testifying experts to prepare reports and give evidence during a court or arbitration hearing. The testifying experts will benefit from the record that the consulting experts have helped create during project execution.
3. Enlist expertise on payment and progress certification. During implementation, experts such as independent certifiers and value assessors are instrumental in validating construction progress and ensuring fair, timely payments. Their impartial assessments minimize risks of over or underpayment, reduce audit exposure, and help create consensus around milestones—especially on high-value, fixed-price or P3 projects.
4. Carefully select and instruct testifying experts. In addition to an expert witness’s technical qualifications, parties should consider factors such as their communication skills, prior testimony and publications, and potential conflicts of interest. Counsel should generally avoid asking the same questions of multiple retained experts to avoid conflicting opinions. Counsel should provide the expert with a clear mandate and a set of factual assumptions that will be proven at trial.
5. Manage privilege and disclosure. The way experts are engaged affects whether their work remains legally privileged. Engaging experts through counsel and documenting their role in providing legal advice can help protect solicitor-client or litigation privilege. Careful management of communications, instructions and document circulation reduces the risk of inadvertently waiving privilege and preserves confidentiality where possible.

Have more than five minutes? Watch the Blakes seminar on this topic or contact the authors to learn more.

Geoff Adair is a Partner at Blake, Cassels & Graydon LLP, specializing in high-stakes commercial disputes, with a focus on complex construction disputes, large project litigation and energy litigation.

Stephanie Console is a Partner at Blake, Cassels & Graydon LLP with a practice focused primarily on public procurement, infrastructure, public-private partnerships (P3s) and construction law.

Matthew Liben is a Partner at Blake, Cassels & Graydon LLP, practising in commercial litigation with a focus on insurance and reinsurance, construction and real estate, restructuring and insolvency, and class actions.

Lindsay Rowell is a Partner at Blake, Cassels & Graydon LLP, specializing in commercial litigation and arbitration with a focus on complex contract, construction, infrastructure and energy disputes.

Andrew Kavanagh is an Associate at Blake, Cassels & Graydon LLP with a broad commercial litigation and dispute resolution practice focused on complex commercial arbitration matters and construction and infrastructure disputes.