Rogue Customers Demanding ‘Satisfaction’: The Role of the Expert Witness in Landscaping Disputes
We read and hear so many stories about rogue contractors, leaving a trail of shoddy work around the country, and as a qualified and accredited expert witness with over thirty years of experience as a Court’s expert, I would like to demonstrate that it is not all one-way traffic.
To understand the background of any dispute that arises from a project where the customer or contractor are unhappy with the outcome of a contract, with one side or the other believing they have been ‘shortchanged’ either through shoddy workmanship or non-payment of monies due, professional advice is sought.
This may take the shape of a solicitor or a direct application to the Court (via online forms), with any such application requiring an independent report to back up the claim. No claim can move forward along the Court’s track without some evidence of poor quality, and the services of an expert witness or surveyor are required.
Whilst most surveyors are unwilling or unable to provide reports on domestic landscape projects, as they primarily deal with ‘buildings’, it falls to those experts who offer commissions as consultants or expert witnesses in landscaping. (Not all consultants are able to provide expert witness reports that are acceptable to a Court as they may not accord with Civil Courts Procedure Rules).
As many customers do not realise the difference between the two separate disciplines, they may seek a report from a consultant, who will be asked to act on their behalf – almost as a ‘hired gun’, presenting their side only. These partisan reports MAY not be acceptable to a Court, and should be avoided. However, having commissioned a report – however biased – the Defendant must respond, and not ignore any ruling or request from the Court for a reply.
A qualified Expert Witness will not accept partisan commissions, as they are bound, under strict rules (known as Civil Procedure Rules Part 35) to act as the eyes and ears of the Court, working for the Court, and not for either Party, no matter who pays for the report.
Expert Witnesses are not legally qualified to offer legal advice, and should never become involved in making decisions regarding liability or responsibility at any time. They should only present the facts, as seen and evidenced by certain site tests and inspections/surveys. Any attempt to comment on matters of liability will render their report inadmissible in Court, unless questions have been properly posed by a solicitor, and answers provided without expansion, digression or deviation. They will usually rely on British Standards or Industry Best Practice as their guide, as these are evidence-based documents in common use.
There are two types of report – A Statement of Opinion (which may be a Preliminary Report if further information is required) or a Civil Procedure Rules Part 35 report, which is fully Court’s compliant. Both will be extant – recording matters as seen on the day of the site visit in a contemporaneous manner, and will not touch on matters that have not been witnessed by the consultant, unless specifically required by their Brief (in some cases, the whole project has been altered, with another contractor taking over the project).
Commissioning an Expert Witness
Having contacted an expert witness, and established that they are willing and able to produce a report on a landscaping project, the expert will pose several questions regarding the current status of a project, asking for as much information as possible to be forwarded without obligation and in strict confidence. This is essential, to enable a proper overview to be formed, and a number of questions posed to the commissioning person (either customer or contractor) to ensure that an outcome can be arrived at. (Expert Witnesses are not Mediators or offer Resolutions. Mediation is altogether separate as a qualified specialist service).
I am always paid in full, in advance, to avoid any questions of lack of probity, bias or financial pressures. As you may appreciate, I am often walking into a war zone, bound to upset at least one Party or the other!
Although probably 85% of all dispute claims are made by a customer (The Plaintiff) against a contractor (The Defendant), as an expert witness dealing with around fifty claims each year, with relatively few claims made by a contractor against a customer, it is not uncommon to find that some of the claims against contractors may be described as spurious, or downright malicious.
Spurred on by social media and visits to Mr Google, certain customers convince themselves they have been conned/shortchanged/fiddled or simply become angered at the negative response from a contractor regarding their demands for remediation or repairs/alterations to a scheme, for whatever reason – accurate or imagined. They seek revenge.
A few true stories – redacted of course! –
Dentist – East Sussex. Contractor had made a decent job of laying porcelain paving to a high standard, all correctly sized, jointed, pointed, levels and overall finish, but with a couple of tiny chips – barely noticeable and certainly within what is known as ‘de minimis’ or so small as to be unimportant. Yet the customer was demanding that I condemn the whole job, as she had her kitchen floor tiled without a blemish.
I produced my report and duly submitted it (via recorded post, which is standard practice to prove delivery) and her response was to absolutely scream at me for failing to condemn the project. She could not believe that I could not see her point of view. My report stood, and I heard no more from her…..
Dentist – Hertfordshire. Small garden, with a very modern design, including water blade, raised rendered beds and recessed seats, artificial lawn and simple topiary planting. I had barely entered the garden, when the customer came out and stated, in no uncertain terms, that he ‘wanted the contractor punished for all the problems he has caused me!’. I have already established that there was very little wrong with the workmanship, with a couple of minor defects that would normally be fixed under a snagging list, but this chap was adamant that he wanted to ‘destroy’ the contractor.
When I advised that it was not my role, as an expert witness, to destroy anybody, and that I was not a Judge, I turned and walked off site. He was absolutely livid, bombarding me with emails for weeks afterwards, threatening to sue me for breach of contract, demanding his money back and have me disbarred from practice. Eventually, he gave up, and I never heard another word.
Financial Adviser – Surrey. There were two areas to be assessed on this project. A large wooden deck in the rear garden, and a block paved driveway in the front. The decking was an easy report, as the whole project was very poorly designed and constructed. Although there is no British Standard for decking, we use the excellent document produced for The Association of Professional Landscapers (APL) by Karl Harrison of The Decking Network, as published in The Landscape Library as our guide.
The front garden project was a block paved driveway, or more correctly, a replacement of an existing driveway, leading a short distance from the roadway and into a garage at the bottom of a slope. The project was unfinished, with a few areas of infilling, perhaps one day’s work which would normally be dealt with under a snagging list. Indeed, the customer advised me that ‘the contractor is coming back to finish off these odd bits’.
Directly he announced that fact, I had no choice but to terminate my inspection. After all, I could not comment on an unfinished project. The customer was very unhappy, and asked me to comment further on changes to levels that had taken place. As I had not seen the site before the new work, I was unable to provide any comment, as I had not witnessed the changes.
He insisted that he be allowed to ‘help me write the report, as I have all of the facts’, and could not understand that this was not possible. He became abusive, threatening me with breach of contract and all manner of damnation if I did not do as I was told. That was the end of the commission, as I would not, and could not, permit him to interfere with my report.
Developer – Birmingham. A property developer had a large ‘mansion’ built on the side of a hill overlooking much of Worcestershire, using his own labour for all elements, including landscaping works, involving balustrades, a fountain, paving etc, plus an area to be laid to artificial grass. (This was to be his personal house, not a contract project). As they were not experienced in laying of AG, he employed a local specialist company to make the final fix, having prepared the ground for them beforehand.
The specialist arrived on site, and being presented with a finely graded, level, compacted area of sharp sand, proceeded to lay the matting. All was well, for a few hours…….. The next day, some of the grass matting had become uneven, with definite low spots. The customer refused to pay the grass company, who issued proceedings against the developer/customer.
The case duly went before a Court, where both Parties were instructed to commission an expert witness. Both Parties paid my fee 50/50 as a Single Joint Expert Witness commission. Having visited the site, I could see areas that had, indeed, settled to become uneven, and making an invasive inspection, discovered that the MOT Type1 had been laid to uneven levels, with the top surface (sharp sand) spread to depths between 50mm and 150mm.
Researching the weather over the period shortly after the installation – the following day in fact – there had been a period of heavy during a thirty-hour period, which was recorded in the public domain. By referencing the weather records in my report, I could clearly show that the probable cause of the settlement had been the inappropriate preparation of the laying base, combined with extreme rainfall, causing the undulations to appear.
I did not have to make any reference to liability or responsibility for the works. I simply provide the Court with the facts. The customer was extremely aggrieved, threatening me (in Court) with breach of contract – until very firmly slapped down by the Judge!
These are a few illustrations of the type of work undertaken by an expert witness. I do not deviate from working under the protocol and guidelines provided by the Civil Procedure Rules, as they protect me from disgruntled individuals, who are often too keen to use social media and the Internet to guide them in their mission to ‘punish’ landscapers (and others) who defy their ideas of how work should be conducted.
They are a great example of why we need to use Contract (Design Management) Regulations 2015 as our industry protection, and prevent selfish individuals from setting their own standards within their own world.
