Written by Baksh Nangla
Expert reports can be a key factor in determining the strength of any case, particularly where there is alleged housing disrepair. Expert reports provide crucial evidence in supporting the arguments raised by both parties in such cases and the significance of them should never be overlooked during the litigation process.
There is sometimes a misconception that anyone can give evidence as an “expert” and this is true to a certain extent, but the recent case of Gemma Court v Beyond Housing Limited provides a helpful reminder of the issues to be addressed by a witness holding themselves out to be an “expert”.
The court rules
An expert must naturally have specialised knowledge and experience in the subject that they are to act as witness in – for disrepair cases, most experts will have some form of specialised surveyor qualification and relevant experience, for example.
Anyone providing expert evidence must comply with the requirements of Civil Procedural Rules (“CPR”) contained in Part 35. If the report you rely upon is not Part 35 compliant, you risk your evidence being disregarded by the Judge, potentially causing severe detriment to your case and meaning a loss at Trial.
Part 35 of the CPR contains many rules that witnesses must follow when providing expert evidence. The full scope of Part 35 is too broad to discuss here but here are some key rules to help ensure your expert’s report is fully compliant:
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The role of an expert is to provide an unbiased opinion to assist the Court in resolving a dispute. They have an overriding duty to the Court and not the party for whom they are giving evidence.
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The expert report should be addressed to the Court and must contain a statement that the expert understands their duty to the Court and that they have complied with this duty and the requirements of CPR Part 35.
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The report must be verified by a statement of truth using the wording set out in CPR Part 35.
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Details of the expert’s qualifications must be provided.
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Experts must state the facts upon which their opinions are based and distinguish between those facts they know to be true and those facts which they assume are true.
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The expert must provide details of any literature or material relied on.
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The report must confirm who carried out any test or experiment which is relied upon.
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The substance of all facts and instructions provided to the expert and which are material to the opinion must be set out.
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The report must contain a summary of conclusions.
Employee or expert?
The above factors to be considered when obtaining an expert’s report may appear to be common sense – an expert should be qualified to be an expert! – but these factors can be easily overlooked when employees are providing expert evidence in support of their employer’s case. Whilst the employee may well be RICS qualified, can they ever truly be an independent expert? The recent appeal case of Gemma Court v Beyond Housing Limited provides some helpful commentary on this matter.
The appeal in Court focuses mainly on the allocation of the claim to track and payment of legal costs. However, the Judge also drew attention to the Defendant’s landlord’s expert witness being a surveyor employed by the Defendant. The Judge noted that the expert should have addressed whether there was an actual or potential conflict of interest in giving his report and between him being an employee of the Defendant and his ultimate duty to the Court. The Judge confirmed that the expert witness should have provided further analysis of this conflict of interest within the report itself. This analysis would provide the Judge with more context to the report and help them to determine whether they would allow the Defendant to rely upon the report as expert evidence.
The Judge also cited the case of Field v Leeds City Council (1999) to confirm that an expert can be an employee of a party. However, he emphasised that the ‘experts employment may go to the weight to be given to their evidence’. This is an important point to consider especially when assessing the risks of using an internal expert witness and their report in support of your case. When the only evidence supporting your arguments at Trial is an expert report from an employee, there is a risk that a Judge may give less weight to this evidence when it is compared to a report from a fully independent, third-party expert and this can significantly harm your case at Trial.
A practical example of this potential shift in a Judge’s view at Trial can be seen in the Court-v- Beyond Housing judgment itself. Here, the Judge placed more weight on the tenant’s expert’s report and therefore preferred their valuation of the works to be completed – these costs were calculated on commercial and open market rates and not in accordance with the NHF trade association rates used by the landlord’s surveyor in his expert report. A decision such as this can have a significant impact on the allocation of a matter to track and the subsequent payment of legal costs.
Top tips for instructing an expert
When using an employee as an expert, it is key to remember:
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When instructing an expert that’s an employee, it’s important to remember that they need to provide an unbiased report to the court. It is easy to sometimes blur these lines and side with your employer without realising. Therefore, it is crucial that the expert is clear that their duty is to the court only. They must understand this duty and provide a statement of truth.
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There is a clear conflict of interest which should be addressed to provide the judge with context on the report. If the report is sufficiently detailed, the analysis would allow the Judge to determine whether the conflict of interest has been properly addressed and increase the likelihood of the report being admitted as expert evidence.
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Precautions should be taken if this is the only evidence supporting your argument, as your expert’s employment may give their argument less weight in court. If there is other evidence supporting your argument, then there is less detriment to your case if a judge decides to use a third-party report.
If you want to discuss anything further or are interested in additional guidance, please contact our housing management team at housing.management@clarkewillmott.com