DISPUTES INVOLVING PAVING AND ARTIFICIAL GRASS
A major part of my work as an Independent Gardens Consultant involves Dispute Issues and Court cases, primarily I believe as I am one of a small number of Expert Witnesses willing and able to produce a number of different types of Reports that are Courts compliant, which means they are written in a form of words laid out following a set protocol.
These may be a Statement of Opinion, which is exactly that; a Statement giving a personal and professional statement describing in detail a set of circumstances pursuant to assisting a Court or Tribunal in arriving at a decision based on the opinions given in that document.
Another formal type of Report is known as a CPR Part 35. This refers to the Civil Procedure Rules Part 35, which is a detailed document written in such a form that it follows much stricter guidelines, and is basically set out like a storyboard.
On occasion, a Distance Report may be required by a Court where there is no reasonable cost effective way of obtaining a report due to distance and expense. The reports are based on photographs and documentary evidence, in a form agreed by all Parties.
The first part of the report describes the accreditations and expertise of the author. This is to allow the reader (usually a Judge) to decide whether or not to accept the report from this particular person. This prevents anyone from commissioning a friend from the pub who happens to know something about a subject, whilst not being a genuine Expert. A Professional Expert Witness will have a proven track record in their work, and be recommended by other professional organisations, including Solicitors Practices and Insurance Companies.
The report goes on to include all manner of information, and is written in such a way that any knowledgeable reader can gather the full picture. The author is essentially providing a Third Party with the full facts as they were established at a particular moment in time, and relating all available relevant information including matters such as Contracts, Specification, Regulations, Dimensions, Quantities and all other germane information into a single comprehensive document for use by The Court. (Irrespective of who pays for the Report, the author is deemed to be working for and on behalf of the Court)
This storyboard is known as a CPR Part 35, which is complete with a Statement of Truth, to be signed in a proscribed form by the author. This Statement includes formal confirmation describing the authors relationship with the Parties involved, and is akin to swearing an Oath in Court.
I personally deal with an average of perhaps a dozen cases each week, many of which may be simply dealt with by a couple of emails, or by virtue of the fact that matters are becoming serious and minds are concentrated on resolving problems without recourse to taking a Legal route which may be very expensive. On average I take on three cases each week which become full Reports.
My work takes me all over England and Wales, and I thought it might be interesting to examine some of the facts that come out of my experiences. Obviously, I have to be totally confidential to remain independent, and will not discuss any details of individual cases, and instead extrapolate as much information as possible using only ‘facts’ and ‘figures’ taken from the twenty most recent cases that involved site visits and full Court’s procedure i.e. CPR Part 35 Reports. I have deliberately chosen to examine the most recent cases as opposed to the most interesting, or most common, in the hope and expectation that the facts and figures will provide us with genuine, non-selective information.
The twenty most recent cases in respect of this article all involve Paving and Artificial Grass projects (I am writing another such feature, with the emphasis on Planting and Turfing) and were located between Cardiff and Suffolk, Yorkshire and Sussex. All sites were private gardens.
THIS IS THE FIRST TIME, TO MY KNOWLEDGE, THAT SUCH A SURVEY HAS BEEN UNDERTAKEN!
ANALYSIS RESULTS – PAVING AND ARTIFICIAL GRASS COMPLAINTS ONLY
Eighty percent of cases were instigated by the Client i.e. the customer started proceedings against the contractor. This means of course, that 20% were claims made by the Contractor against the client.
Thirty percent of cases resulted in COUNTER CLAIMS i.e. the Defendant lodged a Counter Claim against the Claimant. To clarify – once a Claim has been made against a person or firm, the person making the claim becomes The Claimant. The person or firm who the claim is made against is called The Defendant. Once a Counterclaim has been made i.e. the Defendant issues a claim against the Claimant, it can become very confusing! Around 50% of Counterclaims succeed in reducing the amount of a claim, and in 50% of cases, the Counterclaimant is obliged to pay more in compensation, so it is a double edged sword!
Sixty percent of cases were Single Commissions i.e. the Claimant paid all costs for the Report in full.
Thirty percent of projects that became litigious involved materials provided to the contractor by the customer. The primary cause of complaints was that the contractor did not follow the instructions provided by the supplier (the customer having researched the product on line beforehand) with results that did not match the customers informed expectations.
Forty percent of projects had little or nothing in the way of documentation (beyond a simple single sheet of paper, sometimes headed, sometimes not) with no detailed information at all. Without documentation, it is very difficult for a Defendant to fight a claim, especially if the Claimant engages an Independent Expert Witness, as that expert has to rely solely on good industry practice when assessing and evaluating the project.
Ninety percent of the projects had no CMD Plans, Health & Safety recognition, or any written controls regarding site safety in respect of the customer or operatives which frequently lead to rows regarding site access and areas being cordoned off by the contractor.
Ten percent of Contractors were members of a Trade Organisation (2/20) and even then, not a Trade Association with vetting procedures. Therefore, any options of seeking Arbitration were made more difficult due to lack of information or knowledge on the part of the Contractor.
Forty percent were paid part cash, part invoice. In three of the cases, mention was even made in writing as part of the agreement e.g. “£2,000 cash no VAT, rest by BACS”.
One Hundred percent had carried out poor ground preparation, levels and falls, water displacement, dpc violations, edge retention i.e. A.G fixings and paving edges only partially secured resulting in migration of slabs, or trip hazards in artificial grass installations.
Poor laying techniques e.g. spot bedding, A.G. joints ineffective or insecure, A.G. colour variations and laying in different directions etc.
Thirty percent involved Porcelain Paving, Forty percent Natural Stone paving, mainly Indian sandstone and Thirty percent Artificial Grass – average area c. 40 sq metres in all cases.
Thirty percent of Householders have Home Insurance that includes Free Legal cover, which means they can pursue a claim at no cost to themselves (at least, in the short term before renewal) THIS IS ONE PRIME REASON WHY MOST CLAIMS ARE ISSUED BY CUSTOMERS AGAINST CONTRACTORS. For a modest annual outlay, homeowners can receive almost unlimited Legal Advice and access to a Solicitor.
The average cost of the twenty projects was c £9,500.00 (one project was £81,000.00 which rather raised the average) or £5,800.00 ignoring the larger sum.
The average claim by either Party was for £3,850.00 (although this figure was skewed because of one claim for £8,800.00. Without that higher figure, the average would have been nearer £3,100.00) The average claim median was circa 40% of the total original project price.
The average cost of arriving at Court, having spent around £500.00 in Court fees, Expert Witness Reports @ £500.00 and £500.00 on solicitors (at the time of arriving at Court, not the final figure) is around £1,500.00. To pursue a claim of £3,850.00, the Claimant is prepared to risk £1,500.00……even if the case is won, if the defendant cannot afford to pay, more costs will be incurred to pursue the money, which has now risen to over £5,000.00 with costs.
The average time between starting litigation and having the matter dealt with and settled is around eighteen months. This figure is likely to become much longer due to the backlog of cases going before the Courts due to coronavirus, although conference telephone hearings are becoming more common.
Small Claims Courts have a ceiling of £10,000.00 to enter the Claims Track. Figures higher than £10,000.00 go before the High Court, and cannot be pursued via Small Claims, and will incur much higher charges. High Court Claims will usually involve Barristers, who in turn are appointed by Solicitors, so any claim above £10,000.00 will incur costs running into several £1,0000s before even being listed for Hearing.
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This article will hopefully show you the facts, working with twenty examples, chosen only because of their time frame. A previous set of cases may well have shown slightly different figures, although I feel they are accurate in their percentages if not the average costs shown at the end.
If there is any moral in this article, it must be to illustrate the huge importance of contract documents. Taking and keeping control of a project is the key to avoiding problems between contractor and customer.
Remember, Courts do not find anyone Guilty or Not Guilty, but Liable or Not Liable.
A figure that does not show up in these percentages is the 100% breakdown in communication and trust between both Parties. Each case has a long and sorry tale involving dozens and dozens of increasingly vitriolic and threatening emails, reaching such a point where common sense disappears, and the one with the deepest pockets becomes the ‘winner’. Plus of course, the human cost of worrying about going to Court in the first place!
For the record, I never, ever get involved in any arguments between Parties. I do not allow anyone to be present on site during my visits, and will not engage in telephone conversations or have any personal contact with either side, even if I am being paid on a Single Commission.
If I do not believe that a Claimant has a strong case, I do not take it on, simply because I have a Duty of Care (unlike a Solicitor, who is sworn to defend/represent their client), if I have any doubts regarding the commission, I am unable to take on the case.
This is because, unlike the lawyers, I am not an Advocate, and can only report the Truth as I see it to the best of my knowledge and ability. Hence I cannot represent someone who does not have a genuine case that I can report honestly meets Industry Standards.
In my personal record, now approaching thirty years involving Court work, I have a 100% success rate with my Reports being accepted by the Court and acted upon.
Alan Sargent
www.landscapelibrary.co.uk