Commissioning an expert witness
Commissioning an expert witness to produce reports and investigate disputes in cases of complaint involving landscaped projects, both in the commercial and domestic fields, should be undertaken only once you have established the expertise of the particular consultant. Their work is not akin to mediation or arbitration, which requires mutual acceptance and agreement on behalf of two Parties to accept the findings of the mediating consultant. Indeed, they are separate disciplines, with each holding different accreditations and proven abilities; one in order to offer mediation, the other to provide independent assessments without reference to any previous chain of events leading up the dispute – or involvement in such previous matters.
Although both disciplines require the same skills set when it comes to understanding construction techniques, materials and their uses, and have a strong knowledge of British Standards and Industry Best Practice, Expert Witnesses are not advocates, nor do they work for the commissioning Parties. They are engaged to act as the eyes and ears of The Court, and are usually instructed by a Solicitor or by a Judge, to act as such.
Mediators and Arbitrators are engaged to seek amicable agreements, to hopefully satisfy both Parties without recourse to Court claims. Some Judges insist that mediation is sought before allowing a case to proceed, although costs often render this low-key solution unacceptable to one or both Parties.
There are two distinct types of report that are usually commissioned – Statement of Opinion and Civil Procedure Rules Part 35 reports, (known as a CPR Pt 35) both of which require strict adherence to written protocol and do not allow for deviation or empathy. All findings are those that are required by the instructing Party, and may be altered, amended or added to by the expert prior to signing the commission if the expert deems a wider set of options are required to produce a fair report. This set of instructions are known as ‘The Brief’.
Normally, the Brief will include a collection of documents, including plans, specification, copy of any quotation and working method statements (known as The Bundle) and a list of questions to be answered by the expert, based solely on his or her observations made on the day of the inspection (known as an Extant report). Using British Standards/Industry Best Practice as their guide, the expert will compare the ‘Promised’ (whatever the quotation stated) and the ‘Delivered’ (the works as viewed during the site inspection).
Having agreed the brief and fee structure (usually paid in full, in advance to avoid any question of bias or monetary obligation) a date is set for the site inspection. It is common practice for the expert to insist that neither Party is on site, and if the owner wishes to provide access to the site, they are required to leave the expert to their own devices, working solely on the brief and pre-written list of questions produced by the commissioning Party/Parties provided by the instruction. The expert does not take instruction from any Party during the site visit.
There are two types of report under either Statement of Opinion or CRP Part 35. One is called a Single Expert Witness report, where only one Party has instigated and paid for the report, and a Single Joint Expert Witness report, where both Parties have made equal payments to the consultant. In any event, the expert remains 100% independent, working solely as the eyes and ears of the Court, and not for either commissioning Party.
The spectrum and range of commissions is as wide as there are disciplines within the landscape industry. I deal with around fifty commissions each year, and whilst a large number involve hard landscaping – paving in particular – these are generally simple matters to report on, using British Standards as a guide that is detailed and complete. You simply never know what the next call will bring.
Claims for site flooding, boundary disputes, poor installation of all kinds of construction, including decking, walling, paving, water features, driveways, resin car parks, invasive weeds and even loss of light, all cross the desk of an expert witness practice.
Personally, I have a routine whereby any telephone call is politely truncated, with a request to the caller to email giving full details and information, without obligation and in strict confidence, as I prefer a paper trail from start to finish in all commissions. I will pose any questions, including requesting an update on the current status of the complaint, especially with regard to the pathway – if any – the case has travelled along the road to becoming a formal dispute. I also ask if the caller (potential Plaintiff) would consider requesting the other Party (potential Defendant) if they might like to join with them and create a Single Joint instruction (which is preferred by the Courts) as opposed to a Single Expert report. I rarely need to know the current financial status of a dispute, unless it is germane to the point at which the potential claim has progressed.
In my experience, it is generally the case that 75% of disputes are raised by customers against contractors, who feel let down by the installing company, or lack of care by designers – often going on to become Negligence Claims.
Example of a Dispute Claim – The ‘Dead Living Wall’
One of the more unusual requests for a Statement of Opinion, required by a Management Company that had taken over a commercial multistorey public car park, which had been clad with ivy covered steel mesh affixed to the first, second, third and fourth levels, between the concrete floors, in an effort to ‘green’ the structure. Complete with steel planting troughs and a full irrigation and feeding system, the scheme had been constructed around ten years ago, and at some stage in the past, the ivy plants had died through unknown circumstances.
The result was an unattractive eyesore in the middle of the town, with brown foliage combined with a strip of dark green weed growth (mainly dock leaves) providing green strips of colour against the background of brown leaves, at the bottom of the dead ivies.
The original commissioning company had sold the facility to new owners at some stage in the past, and the installing company, who had previously maintained the project, had been changed to a new maintenance firm. Essentially, my commission was to try and establish the sequence of dates and responsibilities in order that the new management company could try and recover some of the cost of replacing the dead plants. In order to do so, an historic search of previous contracts was required, especially in respect of the terms of any maintenance contract. Most living wall contracts include an agreement to replace dead or dying plant material on a regular basis – usually during site maintenance visits as part of the works programme. This is to ensure constant high standards and control/reduce the costs of making separate return visits.
In order to provide the client with a complete overview report, it is necessary to establish both previous site history and current state and condition of the feature. Once this has been done, valuations and costings of remedial/replacement figures can be accurately assessed. Therefore, a schedule of historical and current (extant) evidence is required, working to a plan.
- Reviewing all previous contracts, including the schedule of items to be included in the works programme, especially in respect of dates and periods between site visits, matched with invoices for the works. These should accordingly be monthly or bimonthly, and include a schedule of the works to be undertaken.
- These works are usually limited to checking all plant material for health, replacing any units that are not satisfactory, ensuring the irrigation system is functioning and adding any nutrients to the water reservoir. The amount of water delivered will vary as the seasons change, and require re-setting at each visit.
- All works undertaken and completed should be recorded, and shown on the invoice as well as maintaining a site diary to be signed by the person carrying out the site visit.
- These records will form the foundation for any potential claim for neglect of duty or breach of contract, and treated as an important part of the maintenance contract.
- The next step is to inspect the efficacy of the irrigation system, ensuring that the tank has not become rusty or pipework/sprinklers clogged with calcium (hardwater) or the pipes have not become disconnected anywhere along the various lines. The framework of the pipe lines is necessarily convoluted, with many angles and corners, directing the water flow both horizontally and vertically, usually monitored and controlled by electricity (timers) and fed by gravity.
- It should be established and recorded that the ivy material is, in fact, dead. This requires both visual and physical inspection, involving the use of a lorry mounted cherry picker, with a suitably qualified horticulturist making a detailed inspection to confirm that the material is no longer live. This confirmation is essential, in the event of any question being raised months or even years later in a Court or Tribunal.
- The nature and condition of the growing medium in the planting troughs – including moisture testing and recording of weather conditions during the previous month, again, must be established to provide evidence for use in the future.
- A photographic record should be made showing as much detailed information as possible, and compiled in an Appendix, with time dated images and annotations.
- Once all of the evidence has been gathered, a full report is compiled, starting with any previous known and recorded facts, including dates, times and companies responsible for any actions – or inactions. This provides the background and foundation for the second section. This may be titled ‘Preliminary Report’ if some of the salient information is unavailable or inconclusive.
- If the expert is not clear on any part or parts of the report, or those that fall outside of their personal knowledge, they must clearly identify and exclude those facts and matters which are not within their own knowledge. Those that are, they should declare as being true, complete and to the best of their professional opinions on the matters to which they refer.
- The section part of the report is to record the current, existing or extant conditions found during the inspection; to include any variations in the evidence chain. These should be factual, not opinion, and may include comment regarding the condition of fixings, irrigation, pipework, soil condition (which may require an off-site laboratory report) which may vary from the original installation as recorded in the initial section.
- The third section may include recommendations for any remedial works, which may include removal of dead material and replacement plants (which may be different from the original concept) and provide an accurate schedule of proposed works for the future well-being of the project.
- The expert witness may be asked to provide an initial assessment and valuation of any remedial works, although these figures may have to be ratified by a qualified quantity surveyor/estimator before they can be presented in Court as part of the Court paperwork (known as The Bundle)
- I do not, at any stage, make any conclusions or place blame or liability on any Party. My role is to present the facts, set out in a chronological, clear and concise manner, whilst others may make what they will of my evidence based report.
This is just one simplified example of a case likely to cross the desk of an expert witness. The work is incredibly varied and always interesting. Some cases are suitable for mediation, whilst others – such as the Dead Living Wall are not suited, due to the lack of any individual person or firm responsible for the project, to enable a mutually satisfactory conclusion to the problems.
THIS ARTICLE FIRST APPEARED IN PROLANDSCAPER AUGUST 2025 EDITION
Alan Sargent