Apart from the usual summary of instructions, it is useful for a report to have a description of the property in question. This should provide a description of the relevant rooms affected by the defects in relation to where they are on the building, what floor they are on etc. Each room should be given a name, which is then referred to continuously throughout the report so there is no confusion. For example, don’t call the master bedroom “bedroom 1” and also the master bedroom, as that becomes confusing. If it is possible to provide a plan of the floor or building layout with each room labeled, that is helpful.
Standards of Care
It is useful for the report to set out what the standard of care under the contract is briefly at the beginning of the report. This helps the court to focus on that standard when reading through the specific defects detailed later throughout the report. If the contract specifically requires adherence to relevant British Standards, Building Regulations, manufacturer’s instructions etc, set out that provision at this point. However, only set out the relevant part of the relevant British Standard, Building Standards etc applicable to a particular defect when dealing specifically dealing with that defect later in the report.
When moving on to discuss specific defects, have a separate sub-heading and section for each defect, or related group of defects. If the employer’s requirements, contractor’s proposals or contract specification provides specific requirements for a particular piece of workmanship or product, set this out at the beginning so that the court is aware of what was required to be done/constructed. This is also the place to refer to the relevant part of the relevant British Standard, Building Regulation, or manufacturer’s instructions applicable. The point of setting this out here is to explain to the court what ought to have been built and to what standard. This sets up the court’s expectation for what is good workmanship.
Once it has been set out what the contract and/or workmanship requests are for the relevant work, the report should then explain what the defect on site is. This should include a description of what has been done, and an explanation of how this does not satisfy the contract requirements, Building Regulation, British Standards etc. This point of this section is to explain to the court what has been built, and to explain how this does not achieve the relevant standard of work. It should include an explanation of whether the way the work has been constructed poses a risk of further damage, poses a health and safety issue, with an explanation of why.
Even where the contract does not require specific compliance with Building Regulations, British Standards or manufacturer’s instructions, this does not mean these standards are irrelevant to considerations of whether workmanship has been done properly/with reasonable care and skill. My view is that if there is a relevant standard etc, reference to it and how it has not been complied with should be made where workmanship or design is an issue and it is relevant. In addition, I have seen many experts’ reports state that certain work “falls below the standard of reasonable workmanship” without giving any explanation of why. I have also seen reference to something “not complying with Building Regulations”, but then failing to explain which Regulation or why the work does not comply with it. This does little to assist the court and prevents an early analysis of the strength of the client’s case.
I have read expert’s reports where the expert has failed to provide the express summary conclusion in relation to the relevant standard of care following all the above explanation, which is that, in the expert’s opinion, the workmanship which has been undertaken, or the design provided, “therefore” demonstrates a lack of reasonable care and skill or falls below the relevant standard required in contract. I would be wary of an expert stating that something has been “negligent“, which is more of a legal conclusion, but the court would expect the expert to refer expressly to an opinion that the relevant standard of care has not been met.
The expert should avoid straying into areas which are properly the realm of lawyers in their report. Although many experts sit as adjudicators, arbitrators etc (and thus have a fantastic understanding of the law), when acting as an expert witness legal conclusions and observations are best avoided. If there is a dispute about what standard applies or what terms apply, then the expert should state that they have prepared their report on the assumption that those terms apply, but make it clear the expert understands those are issues in dispute and that they provide no opinion on their applicability. This prevents the expert from being accused of “overstepping their role” or trying to advocate for their client.
It is also important for a report to explain causation fully. When discussing the defective work, the expert should explain how failing to construct or build in a particular specified way has caused, or is likely to cause, any damage. The expert should never just assume that the court will understand how defective workmanship resulted in any subsequent damage or the risk of any subsequent damage. The best way to approach this is to assume the judge in question is not familiar with the particular construction in question, and to explain the cause of the loss as if to a lay-person. If the judge is familiar with the construction/technical issue, then this will serve only to confirm their understanding is correct. If they do not then they will be able to understand all they need to from the report.
It is important to remember that, in many cases concerning defective works, a Scott Schedule may be required, whether by the legal representative pleading the case, or later in the proceedings by the court (perhaps at a costs and case management conference (CCMC)). One of the purposes of a Scott Schedule is to highlight the specific remedial works and its associated cost right next to a particular item of defective work. This allows the court to more easily rule on each item of defective work, determine whether liability has been established in relation to each individual defective item, and then calculate the judgment sum more easily on those defects which the court considers have been proved against those it considers have not.
Bearing this level of specificity in mind is useful when preparing an expert’s report. Things to also bear in mind when setting out a remedial scheme in an expert’s report are:
- Betterment. The remedial works should simply remedy the defective work, and not provide for a better item of work than would have been delivered under the original contract.
- A breakdown of how the remedial scheme is costed. At the very least, the cost should indicate how much constitutes labour, and how much materials.
- Particulars. The description of the remedial scheme should be as full as is possible in the circumstances.
This was republished in the Expert Witness Journal.
Originally published on Practical Law on 17/12/2019.