Distance Report – An Example of a Discussion Document to Aid a Dispute Resolution
Distance reports are written documents provided by an Expert Witness for use when visiting the site is impractical due to distance. Courts allow an amount of £750.00 as compensation for such reports, which is not sufficient to cover a two-day commission including travel costs and overnight expenses. On such occasions, a Distance or Table Top Report may be allowed with permission from the Court. Both Parties in a dispute have an obligation to mitigate costs.
The majority of Dispute cases involve two or more Parties, and it is usual for those Parties to agree to engage a Single Expert Witness, with equal payments made to mitigate and reduce costs. The Court will often instruct those involved in disputes to commission an Expert nominated by one side or the other, and agreed by the Court.
In the event of one Party disagreeing with the other’s choice of Expert, the Court will instruct them both to commission the Expert deemed most suitable according to the Judge, especially if the reasons for rejection by one Party appear vexatious. There are very few Expert Witnesses in the country, and they must have a proven track record of experience, and not simply a ‘Mate Down the Road’.
The simplest form of producing a report to consider a Dispute is a Statement of Opinion. These are simply essays written about a particular problem, in your own words, and although it is better to follow a set format, or protocol, as long as you introduce the subject, explain how you came to be involved, your personal track record or profile setting out your suitability to write such a document, the requirement for Legalese is largely redundant.
The attached Discussion Document to Aid Dispute Resolution is simply a Statement of Opinion, but titled in such a way that its purpose and intent is clear to the reader. It is a personal statement, your opinion, on a set of circumstances that is written as a guide, or Third-Party opinion, on a problem site or situation. It is written in a purely impersonal way, unbiased and independent.
You are not claiming it to be a definitive, researched, measured, investigated, examined statement of fact, but as general letter produced to assist someone in understanding the nature of a situation, or general, accepted Industry Standard or level of workmanship.
In this example, the customer had demanded a low-maintenance garden, and the contractor did not disavow her of the term. He allowed the phrase to stand, and did not qualify the fact that there is no such thing as a low maintenance garden. Of course, the client’s idea of low maintenance was NO maintenance, and therefore the seeds for a potential dispute were sown.
This basic misunderstanding was the catalyst for a long running dispute, eventually ending up in Court, with a potential cost of Claim, including Court and Solicitor’s fees, of around £20,000.00.
Landscaping works included a wooden panel fence with concrete posts, an artificial lawn, limited planting and a raised bed formed with 900mm x 600mm x 50mm grey concrete slabs set into the ground, leaning inwards slightly to provide greater strength. The customer was happy with the project until leaves starting falling off the deciduous shrubs, falling onto the AG lawn, a couple of weeds appeared in the grass and she noticed one or two of the fence posts were leaning slightly. That’s when the complaint was raised, and they called in an Engineering Surveyor to provide them a report.
The following article has been redacted, as each separate page should have the name of the Parties and page number at the top of each sheet to ensure that the
document cannot be abridged or edited in any way.
DISCUSSION DOCUMENT TO AID A DISPUTE RESOLUTION
Customer Name and Address
Contractor Name and Address
24th April 20XX
INTRODUCTION
My name is Alan Sargent, and I act as an Independent Consultant at Alan Sargent Consultancy Limited. I work from 3, Willow Walk, Petworth, Sussex GU28 0EY.
On March 28th 20XX I was approached by XXXXX XXXXX of XXXXX Landscapes to provide him with an Expert’s Report in a dispute issue. I understand that he discovered me through The Association of Professional Landscapers.
I explained that I lived in West Sussex, and although I travel the country undertaking such commissions, he would have a duty to mitigate any costs, and advised him that I work on a Day Rate basis. As he was based nearly 300 miles away, this would amount to a two-day Commission, and I provided my fees for producing such a report.
However, if the case was to be heard in a Court, it has been standard practice for me to be appointed by The Court, and in order to mitigate costs, the Court will often allow a Distance Report. I produce these reports based on photographs and other documents, and ask for Full Disclosure to enable such a report to be meaningful and acceptable to the Court.
I am totally independent, even when commissioned on a Sole basis, working only on facts as I see them. I require payment in full in advance, to avoid any claims of bias or working under a conditional fee arrangement.
I have been working in dispute matters for over twenty-five years, specialising in construction and landscaping in domestic gardens. Please find enclosed a fuller profile of my experience and background. (Here I enclose a printed personal profile with full details).
Having agreed my terms, the Contractor confirmed that he was instructing a solicitor, who would be in touch with me regarding confirming either a site visit (two-day commission) or a Distance Report.
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On March 29th 20XX I received (via email) a letter from XXXXX XXXXX of XXXXX Solicitors of XXXXX, Lancashire, enclosing a bundle of documents, including a report produced by XXXXX Associates of XXXXX, Lancashire. (Surveyor/Engineer.)
On Tuesday, 23rd April, in order to mitigate costs, I was commissioned by XXXXX XXXXX, at the request of XXXXX, to produce a Discussion Document to Aid a Dispute Resolution meeting being held on Thursday 25th April 20XX.
The purpose of this document is not to provide advice or to become involved in any Legal matters or concerns. It is a Statement of Opinion based on information provided to me.
My brief is to look at various issues, and either make comment, or raise pertinent questions that will hopefully enable both Parties to find a way to resolve matters.
PROFILE OF ALAN SARGENT
I have been working in the landscape industry since 1968, starting out as a technician for a small firm of Horticultural Consultants (Hamer, Gayner & Constanduros, all now deceased) working for companies such as Murphy, ICI Ltd, May & Baker etc on a variety of field trials and laboratory commissions.
I have enjoyed a long an interesting career, including hard landscaping projects throughout Europe including Gibraltar and Russia. I hold many industry awards for my work, including Outstanding Contribution to The Industry 2018, given by The Horticulture Week for my work in training and mentoring landscapers in Britain. I am a Fellow of The Chartered Institute of Horticulture and a Full Member of various organisations (see enclosed Profile).
My career includes working throughout the 80s and 90s for some of the largest suppliers and producers of natural stone, acting as Consultant to companies such as Marshalls Mono Ltd, Bradstone/ECC Quarries and other smaller suppliers. I was a member of The Traditional Paving Development Group (University of The West of England – UWE) providing training and helping to develop and encourage the use of natural stone in the domestic and commercial markets.
Throughout the 90s, I was retained by Bradstone Ltd to act as Trainer, Adviser, Consultant, Product Developer and Constructor/Designer for their catalogues, brochures and training videos, plus build and project manage all of their Chelsea Show Gardens between 1991 and 2005.
My Consultancy work involves a considerable amount of Dispute Resolution and Arbitration as Expert Witness, primarily in the ‘Domestic’ field (i.e. non- Local Authority works).
I am Consultant to a number of organisations, Estates, Companies and Commercial enterprises (see attached profile).
(As previously explained, my personal profile varies according to the commission in hand, emphasising, as necessary, any particular previous experience that may be more relevant to the particular project. Although essentially the same, each case is treated accordingly)
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PREAMBLES
As I have not visited the site at 23, XXXXX Avenue, XXXXX, I am reliant on the Engineering Report as produced by XXXXX Associates Ltd dated 17th September 20XX for information.
I have also read other documents, including the completed hand written notes (presumably) written by Mrs XXXXX in response to a questionnaire supplied by XXXXX Landscapes.
I have disregarded all matters relating to XXXXX Landscaping and XXXXX in respect of novation and liabilities, as these matters are outside my brief. Neither have I included any comments regarding the costs of the landscaping projects, as these are not disputed by either Party.
There are four major areas of dispute – Fencing, Artificial Grass, Raised Bed and Maintenance, and I will deal with each in turn. (The customer wanted to pay for no more than two hours each month on employing a gardener. This was less than 25% of the time that should have been expended on maintaining the site.)
FENCING
There seems to be no doubt that some of the fencing posts have shifted since they were installed, with clear evidence of loss of vertical alignment and restraint in a few cases. I would have expected the fencing to have remained upright and level after what was a short period of time. I understand that the project was started at the end of April 20XX and completed in July 20XX.
Quotations from two firms (neither of them Fencing Contractors) that were included in my bundle show dates in June 20XX – less than two years after the fence was erected. Bearing in mind that the soil is described as clayey, and the use of concrete posts with their greater weight (when compared with timber posts) would have been more likely to cause problems with movement and slippage, this should be deemed as an unacceptably short time span for problems to occur.
However, it is my opinion that the fencing posts, gravel boards and majority of fencing panels are perfectly reusable, and each post and panel should be inspected individually and restored/re-erected as required. There should be no reason to condemn the whole fence or reject all of the materials.
Therefore, it would seem sensible to obtain a quotation from either a qualified landscaper or fencing contractor (not a Gardener or Joiner) to make the necessary repairs.
ARTIFICIAL GRASS
The area of grass as supplied and fitted by XXXXX appears to be of a good standard of construction. Certainly, the methods and techniques as described are perfectly acceptable, and there has been no question of poor workmanship or installation.
The only problems that have been mentioned are those in respect of weed growth. Artificial grass ‘lawns’ are considered to be ‘low maintenance’ when compared with natural grass lawns, which require mowing at least twenty times a year, plus weeding and feeding, edging, watering in times of drought, sweeping and generally looking after.
However, they are not without some maintenance input. They require brushing to retain their ‘nap’ or visual surface appearance, sweeping to remove unsightly debris including leaf fall, and also weed killing to prevent weed seeds from germinating within the tufts and nap of the material.
On occasion, some weeds may germinate and grow from under the artificial grass, coming from under the layers of granular material. Pre-emergent weed-killers are no longer available in the general horticultural industry, and herbicidal effectiveness lays in killing the weeds through their leaves. For this reason, unless the weeds are showing ‘in the green’, they cannot be treated.
I have enclosed two photographs of an artificial lawn, laid in October, and left untreated until the following June. These clearly illustrate why the upkeep of artificial lawns is not completely free of maintenance, although it is still far less than natural grass turfed lawns.
RAISED BED
The method employed by XXXXX in constructing these walls and features is a landscape (and building) industry standard technique. I have seen it in use for at least fifty years, and is employed as an alternative to building more complex dwarf walls.
They have a nick-name in the Trade – ‘Wimpey Walls’, so named after the housing developer, they are so common.
The slabs should be constructed and placed individually, with approximately 30cm set into the ground, and secured with wet concrete. They are meant to be laid out of true, this is to say, slightly leaning back into the bank or retained material. XXXXX report shows the slabs forming the walls as leaning out of upright as though this was a defect, when it is in fact meant to be part of the construction method. (A report from a Third-Party Building Surveyor was supplied to me. The author was clearly not a landscaper, complaining about the lean on the slabs and the lack of weep holes).
The fact that the slabs are laid butt jointed, or touching one another as near as possible removes the need for any drainage weep holes, as any water falling on to the raised beds cannot remain trapped behind the wall, but percolate from between the upright slabs.
Due to the curved nature of the walls, some loss of chainage is bound to occur, simply because of the shape and angles required to complete the work, especially where two corners meet and change angle.
I understand that one or more of the slabs (not walling/upright) have become loose. This is not unusual, and these are easily replaced and re-bedded. If there is a need to carry out some repairs, looking at the various photographs in the report, these should be few in number, and subject to a quotation from a reputable landscape contractor for the purposes of agreeing a settlement in this case.
MAINTENANCE
As far as I can see, looking at the various elements and complaints regarding the project tidiness, whilst the biggest problem is with the fencing, in my opinion, many of the other complaints should have never arisen if sufficient qualified professional labour had been made available during the period since the garden was completed.
It would seem that the only labour employed in the garden has been one person for two hours each fortnight or three weeks. I would consider this to be far too low, and the visits too far apart, especially for a new garden. Following practical completion, the new plants should have been watered at least every other day, and each one nurtured and encouraged.
As far as I can see, the plants supplied (Lavender, Acer etc) are all ‘low maintenance’, requiring only an annual trim or tidy after leaf fall. High maintenance plants would be those such as roses, requiring deadheading, spraying, pruning, feeding, regular watering etc.
I would have expected to lose a small percentage (5 -8%) of any new build planting scheme, even if the plants had been tended properly. Irregular watering would have probably increased that percentage of losses.
In conclusion, in my opinion the maintenance should have been more regular and frequent, engaging a professional gardener, one who would have spotted the problems with weeds growing in the artificial grass and dealt with them at the time by an application of suitable total weed-killer.
CONCLUSION
In concluding, having looked carefully at all of the comments made, and using the Engineering report’s photographs as my guide, I feel certain that even if I had visited the site in person, my comments would remain the same.
The fencing problems should be dealt with by appointing a qualified fencing contractor, and as many of the materials that can be re-used should be utilised to minimise the costs.
The artificial grass lawn is not in need of any remedial work, only ongoing maintenance. The raised beds should be checked, and any loose slabs re-bedded as required.
Ongoing maintenance should be rescheduled to allow sufficient time for a qualified and certificated professional gardener to undertake all aspects of garden management, including weed killing.
If you require any further clarification of these comments, please let me know.
Unless you have any fresh documentation to present, I really cannot add any further comment at present.
I confirm that I do not know, and have never met, either Party in this case.
Alan Sargent FCIHort MPGCA
Distance Reports may be adapted to a wide range of situations, not limited to Court’s disputes. All must follow the same formula; introducing the project and all Parties
included in the matter, your personal profile (which has a different logic than a c.v., mentioning your skills and background as well as any formal qualifications).
In essence, by offering Distance Reports to clients, you can sell your expertise to a wider group of individuals, not restricted by distance and related costs. I have conducted these reports for gardens in Northern Ireland and Northern Scotland, where site visits would prove time consuming and therefore expensive. Exactly the same logic is applied as if you were producing a Statement of Opinion, CPR Part 35 or any other formal report, the only difference being that are working from information supplied by a Third Party.