The Role of an Expert Witness in Landscaping: How Expert Reports Shape Dispute Resolution
As expert witnesses, Gareth and I are part of a very small number of independent individuals who are recognised and accredited as such by virtue of acceptance into The UK Expert Witness Register (or similar respected organisation of vetted specialists) all of whom have at least ten years of practical experience and with a strong background in landscape construction. (In our cases, at least thirty years)
To be entered on to the Register, we have to be nominated and endorsed by Solicitors, whilst others are recognised and recommended by Trading Standards, Insurance Companies, Police Fraud Squads and other similar legal or semi-legal entities. A few experts are registered with The Royal Institute of Chartered Surveyors as landscape experts, having passed their exams and awarded accreditation. The Professional Garden Consultant’s Association also has a list of accredited expert witnesses amongst its membership.
Unless we are accepted by the Court, our reports would not be allowed to be presented. We act as the ‘eyes and ears’ of the Court, providing impartial advice to the Judge, who may have limited knowledge of the subject of a claim. This brings great responsibility to bear on the expert.
First Contact
In a typical scenario, an individual will make contact by telephone, sometimes a customer who is seeking resolution, and sometimes a contractor who is in need of a report. The first principle of the initial contact is to ask the caller to end the call, and send all information by email, as it is important for the expert to have a paper trail from the outset. This is without obligation and in strict confidence.
Expert witnesses are legally bound to work under the Civil Procedure Rules Part Five, producing what is known as a CPR Pt5 report. This follows a very strict framework and set of regulations which cannot be altered.
Having received more information, the expert will pose several questions, as the answers will direct the course of the case in hand. The first questions will establish the status of the situation. Has the work been finished? Has all money been paid? Are you being sued by the other Party? Crucially, we need to know if a solicitor is involved, or is likely to be instructed, either by the Plaintiff (complainant) or a Bank (known as a Part 35 claim) or an insurance company (who will appoint a solicitor). If a solicitor is involved, we do not communicate further with the Plaintiff, as we can only take instructions from one Party.
Once everything is in place, and instructions received (known as ‘the brief’) a date will be arranged to visit the site and conduct an in-depth site survey, usually invasive i.e. excavating as necessary to establish construction methods. Any documents, specification, contract, method statements etc, will be examined to see if the ‘Promised’ has been delivered. This will include volumes, quantities and dimensions, as well as quality of workmanship.
Some commissions are called Single (i.e. one expert) Joint (both Parties paying an equal share) Commissions. Others may be Single Commissions if only one Party is paying. We do not make any differential between the commissions. Our duty is to the Court, not the Plaintiff or Defendant.
All fees are agreed and paid in full, in advance, to prevent any question of financial pressure or obligation. This is important, as we know we will be upsetting one or more Party! We never, at any time, allow either Party to direct our surveys, nor agree or disagree with anyone on site. In most cases, we ask the Party/Parties to withdraw and leave us alone to conduct our surveys without direction. If we have any questions, these are formally noted and recorded for inclusion in the report.
Methodology
Questions frequently asked by contractors (especially) surround the criteria we base our surveys on. We are bound to work using British Standards at all times where possible, or Industry Best Practice in other cases. This is because we have to have a set of standards against which to compare the works as seen, and that which is formally written down. These standards allow all reports to be based on known specification, not our own preferences.
Importantly, we only use those standards that were in place at the time of construction. As there is a time limit of six years under the Consumers Acts, this means few cases are brought before a Court that are older than six years. Therefore, there is no cause to be concerned about meeting the latest regulations or British Standards, if these did not apply at the time of construction, and a note would be included in any report to that effect.
However, if the project is current and ongoing, we are obliged to follow the current or latest Standards, and it is up to the landscaper, as the Professional on site, to be aware and practice these standards.
In the event that one of the Parties is not satisfied with, or does not accept a report, it is up to them arrange their own report from an accredited expert. If the comparative reports are at variance, the Court will charge both experts to arrange a meeting, where a single expert report will be completed (if possible) under a system known as a Scott Schedule, where both experts agree a commonly acceptable compromise report to place before the Court. In most cases, there is rarely any discord between the experts that cannot be resolved.
Statement of Truth
I understand that my overriding duty is to the Court, and I have complied with that duty. I am aware of the requirements of CPR Pt 35, its’ practice direction and the CJC Guidance for the instruction of civil claims.
I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge, and which are not. Those that are within my knowledge, I declare to be true. The opinions I have expressed represent my true and complete professional opinions of the matters to which they refer.
I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a Statement of Truth without an honest belief in that truth.
(This is the statement that all reports have to include at the end, which reinforces the weight of responsibility on the shoulders of the expert witness).
Conclusion
It would seem appropriate to mention that, until a project fails, or has not been constructed in accordance with manufacturers instructions, there will never be any reason for an expert witness to become involved in any way.
In certain cases, it may be more appropriate to go down the route of Alternative Dispute Resolution (the preferred method of settling claims by the Courts) or Mediation, although there are not many individuals with landscaping expertise that are able to offer this service.
