Garden Landscaping Disputes: How Expert Witness Reports Resolve Disputes
Both Gareth and I have been involved in producing reports for use in Court (in my case, since the early 90s), primarily in the domestic sector. Enquiries for our 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, a garden designer or another contractor.
(Please note: although both Gareth and I work completely separately, and never collude or discuss cases, I have written this article in the first and second person, as we both adhere to the same Rules of Engagement laid down by the Civil Procedure Rules 2015. When I use terms such as ‘we’ and ‘I’, it is not intended to indicate that we work together of any case)
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 us in any way by providing us with a partisan viewpoint. At the earliest possible stage, we do need to establish if the caller is the Plaintiff (the complainant) or the Defendant.
Establishing the Extent of a Commission
We do however, as soon as possible, ascertain how they got hold of our details. This is an important element of any commission, as it helps 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 we are often recommended by Landscape Trade Associations who have their own Dispute and Arbitration Services available to their members and their clients, we 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, in order to avoid any repetition or conflict of advice regarding the correct route to commence any dialogue.
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.
Making the Commissioning Client Aware of Procedure
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!
We will outline the procedure in this introduction, as the simplest way of setting out the likely progress of a dispute, touching only briefly on the various resources and methods of securing a resolution to a dispute. Each different route will be explained in detail in further paragraphs, but without this overview, they may appear disjointed and without obvious relevance.
Suggested Likely Procedure
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 of the required report, the next step is to agree the fee structure and payment of account.
Payment in Advance of Site Visit and Survey
Most Expert Witnesses 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 the expert and any other Party.
If we are 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, we follow their instructions to the letter, including making arrangements for the payment of fees, either directly from their client, or drawn from monies held by the firm on account.
We 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. 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), we 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. We do not allow any question to be raised unless both Parties agree the wording. These questions are written down and agreed on site. We find that everyone accepts the need for decorum, as we are only doing our job as an independent expert.
Full Disclosure at All Times
We are ever mindful that we am working for the Court, and that any report will form the basis for any decisions that may arise from the information we provide. Therefore, we try to describe the situation in a way that can be understood by a Third Party who has never seen the site. Even if a case does not immediately proceed to Court, we must assume that it may at some time in the future.
Although we 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.
Importance of Documentation
We will formally request that both Parties provide us 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 us to establish whether or not the works have been carried out in accordance with those documents.
We 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, and before involving an expert witness report. For this reason, it is essential to provide as detailed and comprehensive chronological record as possible to present to the Court.
It may not be possible to produce a meaningful report based solely on conditions found at the time of a visit, especially in respect of a landscaping scheme that involved earth moving and radical alterations to a site. Hopefully, a professional contractor will have included method statements (a ‘storyboard’ of how the works were to be carried out, step by step), a Bill of Quantities, detailed specification and technical drawings or plans, together with a regular file of contemporaneous photographs.
Checking Veracity of Project Specification
These documents enable us 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 we find only four hundred square metres, then we record that fact in the 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 nominated as being liable for the site.
Importance of CDM Regulations in Dispute Cases
According to CDM Regs, the owner (on a Domestic project) is responsible under CDM for all Health & Safety matters, and this responsibility is usually transferred to the Principal Designer. If there is no ‘Designer’ (or Architect) then 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 Phase 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, the production of Risk Assessments and ensuring due compliance in matters such as safety signage etc.
It should be stated that any landscaping construction project involving mechanical or heavy lifting equipment, 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)
Importance of Building Regulations
Building Regulations apply to all construction works, whether or not carried out by builders or landscapers. We 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 Witness’s 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, and duly noted in the Expert’s report.
Checking the Paper 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 may have little practical experience or knowledge of their properties.
New fixing materials to both lay and joint these thin slabs 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 inappropriate jointing material causing the slabs to become unstable and unsafe.
Financial Documentation – and Lack of a Paper Trail
It should also be recognised that on occasion, there is little documentary evidence or paper trail for the project at all. No quotation – or a few scribbled 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 than note these facts in their report.
Several recent cases we 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 we have been commissioned to provide a CPR Part 35 report (by the customer) All we can do, is to report as we find, and if there are no contractor details, this fact is noted. It is not our role to become a detective and try to establish the location or name of the contractor.
Referencing Other Sources of Evidential Documentaiton
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 the assessment, including the titles, authors and page numbers for each reference as these add credibility to a report. Always bear in mind that instructions, manufacturers guidance notes and specification may change after a relatively short period of time. With many of the newer products, advice given five or six years ago may well have altered, but at the time of installation, would have been correctly relied upon by the contractor.
Assuming that the Expert Witness is not being 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 one is 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.
Statement of Truth – Finalising an Expert Witness Report to Comply with CPR Rules
This will become an essential matter when producing the final section of the Experts Report 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.
Valuations and Evaluations
We 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. We would suggest that the Expert undertakes such a task as a separate commission, unless providing a general comment with qualification.
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, problems have occurred due to misunderstanding in terminology. For example, 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 none of these terms can be quantified or qualified in a Contract, as they are open to interpretation and subject to misunderstandings, 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.
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 may not to be included, as they too, are not the concern of an Expert Witness. Unless asked a direct question, in writing, by a solicitor, it is best to avoid making comments on financial assessments.
An expert witness can only be concerned with facts. Their duty is to the Court, regardless of who is paying for their time. We make this statement to all concerned as often as it is required, and maintain our independent stance at all times.
In Summary
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. An expert witness works on behalf of the Court, and not any individual.
Clearly establish ‘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 and 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.
