The Future Of Expert Witness Commissions?

It seems highly likely that the methodology and workings of an expert witness in the field of hard landscaping will be taking a different route in the near future, whilst still bound by the protocol of Civil Procedure Rules – Part 35 in particular.

With so many cases being presented to Courts, and the lack of Court room space and time, it is probable that the previous ‘standard’ procedure followed by expert witnesses, of being appointed by Solicitors or private clients (Contractors and Customers), commissioned on either a Sole or Joint basis and provided with a set of written Letters of Instruction will change to become more focused on Alternative Dispute Resolution (ADR)

Although Courts can and do order ADR or Arbitration before allowing a case to proceed through the system, it has been the norm for a Claimant to be able to proceed following the format of Pre-Hearing consultations and hearings, frequently by conference telephone calls or Zoom meetings – anything to try and resolve or hasten cases along their pathway and reduce the amount of time spent in the Court room.

In cases where the claim is for less than £10,000, known as Small Claims, it is not standard practice for the Court to award costs to the winning party as a matter of right. Only in exceptional cases will the Judge allow Claimants to recover their costs, either partially or in full.

In those cases where the claim is for more than £10,000.00, a Judge will frequently recommend that both Parties engage a Solicitor, as the legal wranglings and ramifications can be too confusing and complex for a couple of unrepresented protagonists to be able to negotiate their claim (and frequently, counter claim) without causing unwanted time wasting.

It appears likely that in future cases, unless the protagonists agree to undertake ADR before continuing with a claim, they will not be allowed costs in any event.  

This probable change to the previous role of expert witnesses will have an impact on the way commissions are handled, as the initial claimant will have to be advised that they will probably be obliged to agree to arbitration before engaging any site surveys and commissioning an expert witness report. Although not permitted to offer legal advice, if a commission was undertaken and then rejected by the Court as being invalid, there may be grounds for making a claim against the expert for misrepresentation if they were not warned beforehand.

It would appear to be an opportunity for expert witnesses to become even more conversant with those British Standards that are commonly germane to the landscaping industry, including Tarmac (BS EN 13108-1), Close-board Fencing (BS 1722) and Paving (BS 7533-101 and 102) being the most common in recent years.

Because these British Standards are so precise and informative, it would seem sensible to use them as the primary guide when working in an arbitration scenario, as it removes any question of personal opinion or preference when discussing the quality of a disputed project.

Using the wording of the specification, it may be possible to evaluate the veracity of any claim or counterclaim comments made during the ADR process, by using BS stipulations as a mathematical tool to assess the works.

For example, a tarmac driveway measuring 100 square metres should be constructed over 150mm MOT Type 1, with two coats of tarmac (one base coat, one wearing coat) with a total depth of 100mm.

If the driveway is a ‘new build’, the total excavated soil will be 250mm x 100 (plus bulking factor depending on soil type) Therefore the total removed off-site will be c.25m3 plus.

MOT Type1 should be 15cm3, with 10m3 of tarmac. Tarmac covers approximately four square metres per ton @ 100mm, so the total import to site of tarmac should be c 25 tons. 

By using simple mathematics during the site evaluation during the arbitration process, it will quickly prove or disprove any assertions. All such projects must have delivery notes and waste transfer documents as a matter of due diligence and contract compliance. If there are no such evidential notes provided by the contractor, their case will be seriously compromised.

Similarly, if the contractor produces delivery notes for a certain amount of material (usually below ground) that clearly show the amounts to be insufficient to meet British Standards for the works in hand, this fact should be drawn to attention. Five bulks bags of MOT Type1 under a 100m2 patio will not meet BS7533.101!

Additional information may be garnered from this exercise, including length of time between delivery dates and times. Any obvious discrepancies in delivery dates may indicate problems that may have arisen during the project which may be related to the dispute.

Always check that the delivery notes are for the particular site, and not simply from the firm in general as they may not relate to the project under scrutiny.

If the project has been undertaken using Construction (Design Management) Regulations 2015 it is unlikely that a dispute will have occurred. It is worthwhile asking to see any CDM Plan at the outset of the discussions, as the resolution may be influenced by any notes and comments/variation orders/alterations contained in the pages.

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