(CPR Part 35 – Establishing Essential Report Foundations)
I have been involved in producing reports for use in Court since the early 90s, either as Statements of Opinion or Civil Procedure Rules Part 35 Reports, primarily in the domestic sector. Enquiries for my services arrive, usually by email, either as a direct result of a Contractor or Home Owner searching the Internet, as a referral from one of the Industry Trade Associations or via a Third Party e.g. a Solicitors office or a Paralegal source.
Any enquiries by telephone are quickly truncated, with a request that all conversations must take place via email to ensure a full and accurate record of the intercourse. This is essential, as it does not allow any one Party in a dispute to attempt to influence me in any way by providing me with a partisan viewpoint.
I do however, as early as possible in the conversation, ascertain how they got hold of me. This is an important element of any commission, as it helps me to understand the chain of events that led to the contact in the first instance. If they were simply looking on line, they may not have any idea how best to approach the subject. However, if they are making contact on the directions of a Court, they will have been informed of the need for formal protocol and provided with some guidance in locating a suitable Expert Witness.
As I am often recommended by Landscape Trade Associations who have their own Dispute and Arbitration Services available to their members and their clients, I will seek to establish if the Contractor is a Member, and whether or not they have been offered their internal services before calling on an Expert Witness.
It is essential to establish, as soon as possible, the nature of a dispute and the desired outcome of any action that may be progressed. A substantial number of people who begin the process of applying to a Court for action in resolving a dispute have no clear idea of what final result they are seeking. Some seek redress and compensation. Some simply to ensure that the contractor is put out of business. As far as they are concerned, they are happy to hand the whole case over to the professionals and let them sort their problems out.
It is therefore essential to ensure that a Plaintiff clearly understands that Expert Witnesses are only there to provide the Court with an independent professional report on matters as they find them at the time of producing their documents. Expert Witnesses are not employed to provide anyone with their opinions regarding the outcome of any case. Judgement and liability are for the Court to decide, not the Expert Witness!
Although few cases are exactly the same, most involve dissatisfaction with either product or installation defects (or a combination of both) with works carried out by a Contractor. These are more likely to be initiated by a property or home owner, and be pursued against a contractor (Landscaper or Builder). Less frequently, the Plaintiff may be a contractor, claiming in respect of monies outstanding against works completed.
Having established the source of the enquiry and request for a report, including the nature (CPR Part 35 or Statement of Opinion) of the required document, the next step is to agree the fee structure and payment of account.
Personally, I insist on payment in full, in advance, of a figure based on time and distance. This is to avoid any question of conditional fee arrangements and potential bias or lack of full independence between myself and any other Party.
If I am working at the request of a Solicitor, this is a simple matter, as their professional working practices and compliances will be in place. A Solicitor may be acting directly for their client, or as a preferred solicitor working for an insurance company. In such cases, I follow their instructions to the letter, including making arrangements for the payment of fees.
I try to establish with the initiating Party and (if possible) the second Party if they are both willing to pay an equal share of my fees, thereby commissioning a Joint Single Expert Report (either under CPR or a Witness Statement of Opinion). Both Parties are offered this opportunity to ensure no conflict of interest can occur.
Once the fee arrangements have been settled and paid in full by one or more Parties, a date is arranged to visit the site. A time is given, and both Parties (if they agree) are invited to attend. Assuming that there is no involvement by a Solicitor (who will provide all Parties with a list of questions that should be answered by the Expert Witness, usually pre-agreed with both Claimant and Defendant) I take control of the meeting and set the agenda and format to be used during the time on site.
This control is essential to prevent a free for all with arguments and conflicting tales. I do not allow any question to be raised unless both Parties agree the wording. These questions are written down and agreed on site. I find that everyone accepts the need for decorum, as I am only doing my job as an independent expert.
I am ever mindful that I am working for the Court, and that my report will form the basis for any decisions that may arise from the information I provide. Therefore, I try to describe the situation in a way that can be understood by a Third Party who has never seen the site. Although I take photographs, and these are included in the report either as an Appendix, or part of the script, it is essential to describe, in detail, the nature of the original project or state of the site prior to any works being carried out.
I formally request that both Parties provide me with every document and record of events including and especially, the original quotation and contract documents. These are extremely important, as they are often the only evidence available to enable me to establish whether or not the works have been carried out in accordance with those documents.
I have known instances where the owner has engaged another contractor to remove and replace items, including plants, hedging and an ornamental pool pumping system without consulting the original contractor. For this reason, it is essential to provide as detailed and comprehensive chronological record as possible to present to the Court.
It is not possible to produce a meaningful report based solely on conditions found at the time of my visit, especially in respect of a landscaping scheme that may involve earth moving and radical alterations to a site. Hopefully, a professional contractor will have included method statements (a ‘storyboard’ of how the works are to be carried out, step by step), a Bill of Quantities, detailed specification and technical drawings or plans.
These documents enable me to assess and evaluate whether or not the original quotation has been adhered to, in respect of levels, falls, heights, distances and quantities. For example, if a quotation was for six hundred square metres of lawn turf, and once measured on site I find only four hundred square metres, then I record that fact in my report.
Contract documents should include other essential items that are required to comply with the Law, although they may not form part of any complaint. These include a written plan of action under the Construction (Design Management) Regulations 2015 (CDM Regs 2015) to comply with Health & Safety. CDM Regs will show the names of all responsible personnel on site including Principal Designer and Principal Contractor, who are liable for the site.
According to CDM Regs, the owner (on a Domestic project) is responsible under CDM for all Health & Safety matters, and this responsibility is automatically transferred to the Principal Designer. If there is no ‘Designer’ (or Architect) the Principal Contractor becomes liable. Once again, this factor may not be relevant to the case or complaint in hand, but such information is useful to the Court when deciding who was responsible for actions on site.
The CDM Plan should also describe and identify the person responsible under Building Regulations on matters such as (for example) step treads and heights/uniformity of flight, safety railings and balustrades against drops by patios and decks, fence heights and boundary issues, trips hazards and the production of Risk Assessments and ensuring due compliance in matters such as Safety signage etc.
It should be stated that any landscaping project, no matter the size or scale, falls under CDM Regs and even a simple, basic plan should form part of the Contract documentation. (CDM Plans are readily available on line, using a drop box tool)
Building Regulations apply to all construction works, whether or not carried out by Builders or Landscapers. I have often been called to sites where someone – the owner, designer or landscaper/builder has violated Building Regulations regarding damp proof membrane courses or air bricks to enable a patio or paved area to flow through between an internal floor without a threshold ‘step’ for purposes of visual design factors, ignoring the problems associated with rain water penetration and splash against patio doors and house walls.
Any such breaches must be included in the Expert Witnesses Report, irrespective of whoever gave instructions to the contractor. It is not the Expert’s job to establish who designed features that may violate the Regulations, only to note them in the report.
Frequently, during the construction of a landscape project, alterations and additions are required, either to recognize a change in the specification called for by the client or designer, or the contractor if a particular element or product is not available. Any such alterations should be recorded under an Order Variation (VO) system. Often this may only be a chain of emails between the client and contractor, but they should show how and why these alterations were made. Any variations, additions or reductions in quality, quantity and costs should also be recorded in the VO or email trail.
The importance of establishing the paper trail or documentation on any project cannot be understated. Once a garden site has been landscaped, unless the works are only minor e.g. a new patio or pergola, the Expert must decide the extent of works completed weighed against the schedule of works outlined in the contract documents. Without these papers, the Expert should produce their own schedule of works as seen on site and described as having been carried out by the Contractor.
Working practices and techniques should be assessed against Industry Standards, and any significant variations between the two standards must be highlighted. With so many new products being introduced into the Garden marketplace and used on landscaping projects, new problems arise that were not foreseen by the suppliers. An example of which is the use of porcelain and other thin paving slabs and tiles, previously used exclusively on interior floors and as wall cladding are now in regular use in garden designs, championed by Professional Garden Designers who have little experience or knowledge of their properties. New fixing materials to both lay and joint these thin tiles are often untested outside of controlled conditions, with the result that tiles, once laid – even in accordance with manufacturers recommendations – become loose from their laying compounds, with loose jointing material causing the slabs to become unstable and unsafe.
It should also be recognized that on occasion, there is little documentary evidence or paper trail for the project at all. No quotation – or a few scribble notes on a packet – no price or payment terms, no specification or written matter whatsoever. In such cases, it is not the role of an Expert Witness to do other that note these facts in their report.
Several recent cases I have handled have concerned contractors that have no premises, no addresses or public presence except Face Book or other social media. These cases involved many thousands of pounds, some in excess of £10,000.00. The customers, having seen their projects literally falling apart, have applied to a Court for compensation, and I have been commissioned to provide a CPR Part 35 report (by the customer) All I can do, is to report as I find, and if there are no contractor details, this fact is noted. It is not my role to become a detective and try to establish the location or name of the contractor.
It is helpful, if required, to include in the report (or Appendix) any manuals, books or other references which have been used and referred to in your assessment, including the titles, authors and page numbers for each reference.
Assuming that the Expert Witness is not be guided by a list of questions supplied by a Solicitor, and the report is based on questions posed by the Expert to enable a meaningful report to be compiled, it is important to clearly state that fact in the introduction to each section of the report.
It is also important to remember that all comments and opinions that may be expressed that you are not able to prove with factual evidence e.g. the growth rate of Japanese Knot Weed, should be qualified with the words ‘balance of probability when making an assessment.
This will become an essential matter when producing the final section of the Experts Part 35 which calls for a Statement of Truth. Part of the legal wording includes an oath that you are referring to facts and matters that are within your own knowledge and which are not. If you are unsure of any element of the case, any question of doubt should be excluded and highlighted separately if there is anything that you feel needs to be drawn to the attention of the Court, yet does not fall within your own knowledge.
The Expert Witness assessor should be able to comment on the quality of workmanship, even if the results of a project have failed. If the contractor has carried out Best Practice using materials and techniques that were deemed to be acceptable at the time of such works, the Expert should record this fact.
You may be asked for valuations on certain aspects of a project, either to establish the costs involved in replacing parts of the work, or as an assessment of the value of the works completed to date, or to provide the Court with an idea of the scale of compensation that may be required to rectify any part or parts of a project. I would suggest that you undertake such a task as a separate commission, unless providing a general comment with qualification.
I am not a qualified Quantity Surveyor or Estimator, and am not able to provide any such information except in general terms as a long established Landscape Contractor.
Many of these questions should have been raised either by the Solicitor representing either Party, or instigated if deemed necessary by the Expert Witness during assessment in order to supply the Court with a detailed and comprehensive report.
All such reports should be Extant in nature, only describing conditions found on site at the time of the visit, including weather conditions.
Matters to avoid
It is often the case that a project has failed due to a lack or loss of communication between the owner and Contractor. Frequently, the problems have occurred due to misunderstanding in terminology. The client has asked for a ‘Wow’ Factor in the design and construction, and at the end of the works, does not feel that have got what they asked for. They may have asked for a ‘Low maintenance’ garden, or a ‘Cottage Garden’, and as none of these terms can be used in a Contract, as they are open to interpretation, they are best avoided.
These matters should not be assessed or mentioned by the Expert Witness as they are subjective, and cannot therefore be evaluated and should be left for the Court to decide.
I always avoid any comments and statements regarding payments or lack of payments or lateness of payment, as these matters cannot be commented on. Similarly, payments in cash, with or without an invoice are not to be included, as they too, are not my concern.
I can only be concerned with facts. My duty is to the Court, regardless of who is paying me for my time. I make this statement to all concerned as often as it is required.
Be very wary when taking the initial call for an Expert’s Report unless dealing with a Solicitor or other professional person to avoid questions of impartiality at a future date. You work on behalf of the Court, and not any individual.
Clearly establish the ‘Rules of Engagement’ before taking on a commission, and establish the amount of work involved, working on a Day Rate system unless provided with a fixed time contract.
Clearly establish the names and addresses of all persons involved, and be open an honest if you have any connection with any Party. By connection I mean personal knowledge to even being a member of the same Trade Organisation. If you have met one Party or more, state where and on what occasion (Trade Fair etc). If one Party is famous or well known, you should state if you have heard of them, otherwise clearly state that you have NOT met or heard of these Parties before the case. These precautions will ensure that nobody can dismiss your report as biased.
Subject to following instructions from a Solicitor, set out to describe the works under dispute in plain English, in a way that a third Party can visualise the site, and gain a full insight into the problems that are the cause of the dispute, providing the reader with detailed descriptions of all aspects, answering questions that naturally arise during such descriptions, thereby producing a fully detailed, comprehensive verbal picture of the situation.
The role of Expert Witness is an essential part of the legal process of helping people to seek redress in Court, which means ensuring that due protocol and compliances are adhered to all times.
Alan Sargent FCIHort MPGCA Autumn 2019.