SEPTEMBER 2014
valuation, and computer forensics. The co- ordination and project management aspects were challenging.
What is the best form of dispute resolution in your opinion? Arbitration or litigation?
It rather depends on what the parties want, and of course from whose perspective you look. Arbitration has the benefit of being behind closed doors and can provide the opportunity to have complex or specialised matters heard before a tribunal with subject matter experience. There’s also probably a bit more scope in the rules of the various arbitral institutions for a panel to be flexible in terms of process. However the open nature of litigating through the English courts can have merits and, from an expert witness’ perspective, there is more structure and form around the role. Also, the Jackson reforms have led to a sharper focus on the costs of litigation.
From an expert witness’ perspective, what we need to do as quantum experts remains broadly the same, and our focus is to provide robust and well-reasoned expert evidence that will assist a court or tribunal in reaching its decision. We sometimes find disclosure in arbitration can be more limited than in an English court proceeding, but it is important that the expert works with the material that is available to them.
What can forensic services offer as part of dispute resolution?
Expert witness services are a key element of the dispute process, with quantum, that is, the ‘how much’ question, resting at the heart of any dispute. We principally provide expert evidence in relation to quantum issues, but also assist with liability issues in certain circumstances (auditor’s duties would be an example). Access to industry expertise is also important (the financial services, energy and TMT sectors are particularly prominent at present). Where the experience and expertise that rests within our Forensic team needs to be complemented, we are able to draw on industry expertise from the wider UK firm or from around our global network of member firms.
Aside from acting as an expert witness, Deloitte Forensic can provide a host of advisory services throughout what may be described as the ‘dispute time line’.
In the early stages of a contract, we can advise on whether the draft contractual terms for determining the purchase price (typically on a business acquisition) are, from an accountant’s perspective, clear, or ambiguous, and how to reduce the scope for dispute over interpretation. Once a contract is operational, we can review performance against the contractual terms, for
example, whether amounts due to one party during the performance of the contract are correctly recorded (and appropriately reported to the other party).
Where a party suspects that they might be suffering a loss, we can provide pre-action advice around the likely areas of quantum, the mechanics and merits of potential heads of loss, and the related evidential requirements. Parties often find it advantageous to explore elements of the claim with an experienced expert acting in an advisory capacity ahead of, or in parallel to, instructing an independent expert.
Our Forensic Technology team are able to extract and organise both structured and unstructured data to provide the evidential basis of a claim. We have extensive experience of every stage of the electronic disclosure process: from robust data collection methodologies, through to processing and filtering of the data, to hosting for review by client teams. We have also invested heavily in tools and techniques to make the disclosure process much less painful, such as computer assisted review techniques, which can accelerate the review process, bringing down costs and time whilst maintaining quality.
Towards the end of the litigation process, we can support settlement negotiations, such as running sensitivity analyses on the claimed losses. We assist our clients and their legal teams to understand the quantum implications of evidence and testimony as it arises, reacting quickly as a case progresses, so the client and legal team is best placed to make strategic decisions.
Finally, when a case is done and dusted, we quite often work with our clients to understand how its systems and processes can be refined to minimise the effect of any future disputes.
Are you anticipating any major legislative changes for 2014?
From the perspective of an expert witness operating in the English courts, the current expert witness protocol is scheduled to be replaced by new expert witness guidance in the autumn. Aspects of the new guidance, which I was a contributor to, will impact on the work of expert witnesses, and should lead to greater focus between party-appointed expert witnesses on the key assumptions that impact on the value of a claim. LM
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