The claimants held a tenancy of premises owned by
the defendant council. In October 1996 the tenants commenced county court
proceedings against the council alleging breach of repairing obligations.
Proceedings for a statutory nuisance under section 82 of the Environmental
Protection Act 1990 were also initiated and certain works were carried out.
Directions were then given by the district judge in the county court action
for, inter alia, the service of an independent surveyor’s report by the
council. The principal issue between the experts was to be whether rising damp
or condensation caused the disrepair problems. The district judge refused to
allow the council to use as their expert B, who had been involved with the
matter from September 1997. This was because he was a council officer and could
not be an independent expert, having regard to the requirements of the Civil
Procedure Rules. The council’s appeal to the county court judge against that
refusal was dismissed; the council appealed.
dismissed. No judgment could properly be formed by the county court judge as to
the ability of B to give evidence of an expert nature in the matter without the
judge seeing a proper report from B, and such a report had not been prepared.
If the council wished to use an employee as an expert witness, it is important
that they showed that the witness had full knowledge of the requirements for an
expert to give evidence before the court, and that he was fully familiar with
the need for objectivity. If an employee were to give evidence, some training
for that person should have been encouraged so that the council could show that
the employee had the necessary awareness of the difficult role of an expert. It
cannot be assumed that an employee can never give independent opinion evidence.
The fact of his employment may affect the weight to be given to his evidence.
This was an appeal by the defendants, Leeds City
Council, against a decision of Judge Taylor, sitting in Leeds County Court,
dismissing an appeal by the defendants from a decision of the district judge in
relation to directions in an action by the claimants, Susan Field and Matthew
Field, against the defendants.
Andrew Arden QC and Jonathan Manning (instructed
by the solicitor to Leeds City Council) appeared for the appellants; and Jan
Luba (instructed by Zermansky & Partners, of Leeds) represented the
respondents.
Giving judgment, LORD WOOLF MR said:
This is an appeal from a decision given by Judge Taylor on 24 June 1999 in
Leeds County Court. It raises an issue of some general importance with regard
to expert evidence, particularly in the light of the CPR. The problem relates
to claims by tenants against their local authority landlord for disrepair. The
question of expert evidence was an area of particular concern in the past, which
the CPR is intended to improve.
This appeal concerns an area of particular
difficulty because all too often disputes as to the state of repair of public
housing result in excessive expense being incurred by parties to litigation,
both of whom are dependent on public funds. On the one hand, a tenant will
usually be in receipt of legal aid, and, on the other hand, the defendants,
which are the subject of a claim by their tenant, are a housing authority
dependent upon public funds. As Mr Andrew Arden, on behalf of this local
authority, points out in his skeleton argument, the disrepair claims are funded
from the authority’s ring-fenced housing revenue account, so the consequence of
their expending money on litigation in a case of this nature means that funds
that could be used for improving their housing stock are diverted elsewhere.
The present proceedings have a substantial
history. I deal with it shortly because of the hour and because the hearing
that is intended to take place before Christmas depends on the parties knowing
the result of this appeal.
The claimants are a mother and her son, who are
claiming in respect of their accommodation. The proceedings were started as
long ago as 17 October 1996 as a result of the appellants having received a
report dated 12 June 1996. Having originally used one surveyor for the purposes
of the proceedings, the tenants went to a different expert, Mr Wood, who, in
June 1997, prepared a report that was sent to the city council. In July 1997
proceedings were brought by the tenants for statutory nuisance under section 82
of the Environmental Protection Act 1990 in the local magistrates court. In
September 1997 a Mr Broadbent, who is employed in the city’s housing services
claims investigation section, first inspected the premises.
In November 1997 the prosecution under the
Environmental Protection Act 1990 was adjourned on the basis of an agreed
schedule of works. In April 1998 Mr Broadbent and Mr Wood carried out a joint
inspection of the premises following which further work was to be undertaken
and may well have been carried out. On 20 April 1998 the tenants reamended
their particulars of claim and annexed to it Mr Wood’s second report. As far as
we are aware, the second report is the report that is to be relied upon by the
claimants for the purpose of these proceedings. It should be noted that that
report ante-dates the agreement for the further works that were carried out. In
August 1998 no evidence was offered by the tenants in the statutory nuisance
proceedings, and the prosecution was dismissed on the basis that the agreed
work had been carried out.
However, the proceedings in the county court did
not come to an end. They were, in part, a claim for specific performance in
relation to work that the claimants alleged had not been completed, and, in
part, a claim for damages for personal injuries that the claimants contend they
have suffered as a consequence of the premises being out of repair.
In his submissions to this court, Mr Arden
contended that the main issue before the court when the case comes to be heard
will be whether the problems in relation to disrepair were problems that were
caused by rising damp or condensation. He put the case in very broad terms; if
it were condensation, then it would be the city’s contention that that was not
due to default on their part, but, if it were rising damp, then the city could
be responsible.
A substantial part of the alleged disrepair has
now been put right. We understand that, at the present time, work is still
being carried out by the city council at the premises, which will improve their
condition, and will therefore be relevant as to whether this is a case where
the court would consider it appropriate to grant specific performance.
With this long history, it is now a case that,
since April 1999, is governed by the CPR, but, prior to that time, it was
subject to the County Court Rules. It is a transition or hybrid case. Wisely,
having regard to the time that has elapsed, an application was made to the
district judge for directions. On that application, the district judge gave a
series of directions that are not subject to any dispute, except for one. The
judge directed that an independent surveyor’s report should be obtained by the
defendant by 21 July 1999 and that there should be an agreed expert’s
discussion to take place four weeks thereafter. Although that direction was
given, there had been an issue before the district judge as to the identity of
the expert who should give evidence. The city wished to use
Mr Broadbent as their expert, but they understood that Mr Broadbent was
unacceptable as an expert to the district judge because he was employed by
them. They therefore appealed to the judge. It is against the decision that the
judge gave dismissing the city’s appeal that this appeal arises.
The issue, which the city understood that this
appeal to this court involves, is whether under the CPR it is inappropriate for
an expert to be called who is an employee of the city, as opposed to an expert
who is not so employed. If that is the issue that arises on this appeal, then
it is a non-issue. Mr Jan Luba, who appears on behalf of the tenants, would
accept that if an expert is properly qualified to give evidence, then the fact
that he is employed by a local authority would not disqualify him from giving
evidence.
In my judgment, Mr Luba is absolutely correct to
accept that position. He submits that if you examine the judge’s judgment in
this case carefully, it is apparent that the judge, who is a very experienced
judge, was not making a decision of principle but merely dealing with the
specific expert in relation to whom the appeal was being made.
Having read the judgment carefully, I am of the
view that it is not correct. The judge certainly recognised that there could be
exceptional situations where an employed expert could be used. However, despite
that, it seems to me, reading the judgment as a whole, that the impression that
the judge was giving was that his objection was not in relation to Mr
Broadbent’s particular qualities, but because of the nature of his employment.
I have some sympathy for the judge. He was anxious
to reflect the undoubted spirit of the CPR, Part 35 (which contains the rules
as to experts) in the best way that he could. He was influenced by the need for
an expert to be a truly independent witness. He saw difficulties in someone who
was employed by the local authority being viewed in that way. The judge was
also in difficulty because, as he said on the second page of his judgment, he
had not been provided with a copy of Mr Broadbent’s report. The situation in
the case is that, in spite of the history to which I have referred, Mr
Broadbent has, even today, not prepared a report that indicates what evidence
he would want to put before the court if he were allowed to do so. In
particular, there was no information available to the court that would have
made it apparent that his report complied with Part 35. That is indicated by Mr
Broadbent’s precise experience and precise role in the city council.
In my view, no judgment could properly be formed
by the judge as to the ability of Mr Broadbent to give evidence of an expert
nature in this matter without the judge seeing a proper report from Mr
Broadbent. That would have provided the judge with material from which he could
assess: (i) what the issues in the case were likely to be; and (ii) Mr
Broadbent’s ability to deal with those issues.
Mr Luba, in his very helpful submissions, argued
that, because Mr Broadbent is engaged on behalf of the city council as part of
their claims investigations section, it would be virtually impossible for him
to bring the objectivity that is needed in order to give expert evidence to a
court to bear on the issues in this case. He submits that, as the case is on
the fast track and, in all probability, the court will hear no oral evidence
from the experts, the judge who has to try the case will be at a grave
disadvantage in trying to do justice if he knows Mr Broadbent’s background.
I do not dismiss those submissions. I recognise
that they can, in an appropriate case, have some force. From the court’s point
of view, there can obviously be advantages in having an expert who is not
employed in Mr Broadbent’s role. However, without knowing more about Mr
Broadbent’s experience and the actual nature of his employment, the judge could
not decide whether Mr Broadbent was qualified to give evidence as an expert. He
could certainly give evidence as to fact.
We have been given information that was not before
the judge. In particular, we have been told that Mr Broadbent has a degree in
construction management. We have also been told that, as part of their claims
investigation section for nearly 10 years, he has been involved in looking into
disrepair matters for the council. On that material, it may be that Mr
Broadbent would be qualified to give expert evidence.
In my view, this is a case where it might be quite
reasonable for a judge to be satisfied about Mr Broadbent’s qualifications, but
the judge did not have any information or knowledge of Mr Broadbent’s
background. I therefore take the view that the judge, instead of rejecting Mr
Broadbent as a witness, should have indicated that, on the information with
which he had been provided, he could not assent to Mr Broadbent as a witness
and left it to the city council to satisfy him subsequently, if they could,
that Mr Broadbent was capable of giving this evidence.
If the city council wish to use a witness such as
Mr Broadbent, it is important that they show that he has full knowledge of the
requirements for an expert to give evidence before the court, and that he is
fully familiar with the need for objectivity. In the future, if a person such
as Mr Broadbent is to give evidence, I would encourage the authority concerned
to provide some training for such a person to which they can point to show that
he has the necessary awareness of the difficult role of an expert, particularly
in relation to claims such as these. I would not agree with the approach of the
judge, while understanding why he adopted that approach on the material that
was before him.
The problem, however, is that the hearing is
imminent. Whoever is to give evidence on behalf of the city is going to have to
deal with the preparation of his report and the submission of that report as a
matter of urgency. The procedures that would be required to be gone through
before it would be possible to know whether Mr Broadbent is an appropriate
witness just could not take place within the limited time-span. However,
because the city council were refused a stay pending the appeal, they have very
properly gone to another expert, whose independence no-one disputes. In those circumstances,
the appropriate course is that they should use that expert.
That may not be the ideal result for the City of
Leeds in this case. However, as I understand it, the reason they brought this
appeal is not because of this particular case, but because of their
understanding of the judgment of Judge Taylor. I hope that what I have said so
far will resolve their concerns as to the issue whether employment can
disqualify an expert from giving evidence.
Before I leave this case, I think it is right to
say something of a more general nature. These cases have financial implications
on local authorities and to the tenants, which should not be ignored. The
amounts that are in issue can be relatively small. Anything that reduces that
expense is to be warmly welcomed. The ideal way of disposing of issues such as
those that arise in this case, is for one expert to be appointed by both sides.
Clearly, someone in Mr Broadbent’s position is not going to be acceptable by
the other side. I would hope that procedures will be devised where claimants in
cases such as this inform the authority of the expert whom they intend to
engage so that the views of the authority can be taken into account. That could
lead to single experts being appointed much more often than has happened in the
past, which is ideally to be desired.
I was at one time minded to try and give general
directions as to how the parties in this situation should behave prior to
litigation. I had indicated in my Access to Justice report the desirability of
a protocol being established to deal with these claims. I pointed out that
those who are involved in this area of litigation, both for tenants and
authorities, had already, at the time of my final report, made considerable
progress. But, alas, the hoped for protocol has not yet been agreed. I was
concerned as to whether it would ever be agreed, albeit that it was very much
in the public interest that it should. However, Mr Luba told me of more
promising developments that have recently taken place. Those developments need
time to reach fruition. It seems to me preferable that they should have that
time and reach a protocol by agreement rather than have one imposed by the
court. I therefore do not propose to make any more remarks of a general nature
in this case. I hope that it will not be necessary for me to return to this
subject in a later case.
In the circumstances that I have indicated, I
would dismiss this appeal.
Agreeing, WALLER
LJ said: It is accepted that if the judge ruled against the calling of Mr
Broadbent on the basis that he was an employee of one party and on that basis
should not be entitled to give evidence as an expert, then the judge would be
wrong. In my view, despite the forceful submissions of Mr Luba, the judge was,
at the very least, clearly influenced by the thought that it was doubtful
whether an employee could ever give independent evidence. In my view, thus in
agreement with my lord, it ought to be made clear that there is no such
assumption.
The question of whether someone should be able to
give expert evidence should depend on whether: (i) it can be demonstrated that
that person has relevant expertise in an area in issue in the case; and (ii) it
can be demonstrated that he or she is aware of their primary duty to the court
if they give expert evidence.
The difficulty in this case is that neither before
the district judge nor before Judge Taylor was there any material on which the
court could assess the issues or the expertise of Mr Broadbent. Some more
material has been placed before us, but, even on that material, I would,
myself, have some doubt as to whether the council had demonstrated all that was
required. The question thus should be, should some further time be given? The
answer seems to me to be clearly, no. The council did not put the material
before the judge. Even if there were some excuse for not putting it before the
district judge, there was no excuse for not putting it before the judge. The
trial is set for some days hence; the council have an expert in place of Mr Broadbent,
and, thus, it seems to me, in agreement with my lord, that the appropriate
course is to dismiss this appeal.
Also agreeing, MAY LJ said: I would agree and would only add this. A
judge managing the case under the Civil Procedure Rules has to be enabled to
find out from the parties what the real issues in the case are. The parties
have an explicit obligation under CPR Part 1(3) to help the court to further
the overriding objectives. This requires cooperation, not confrontation. Under
the old procedure, the parties would habitually have asked for blanket
permission to call expert evidence under RSC Rule 36 or its county court
equivalent, without properly having identified what issues really needed expert
evidence. This all too often resulted in over numerous reports whose extent was
disproportionately large. The CPR and its overriding objective aim to reduce or
eliminate this disproportion.
This is, as my lord, the Master of the Rolls has
said, a transition or hybrid case. To my mind, it is a prime example of the
local authority defendant giving no help to the district judge or, indeed, the
circuit judge, to enable the court to identify the real issues. They wanted to
be allowed to rely on a report of Mr Broadbent, but that report had not been
written and the court knew nothing in detail as to its proposed content. Nor,
apparently, did the court know any details proffered by the defendant of Mr
Broadbent’s qualifications to give the proposed evidence. It seems that no
attempt was made to distinguish questions of fact from questions of opinion.
The court should not be invited to make ill-defined and open-ended orders for
expert evidence in circumstances such as this.
In the present case, if the local authority had
put before the district judge the report that they wanted to use, the issues
would have been far clearer, and Mr Broadbent’s qualifications to give the
proposed evidence would have been apparent. With hindsight, at least, I think
that they should have done so here. It would then, I suspect, have become
apparent that much of his proposed evidence was on questions of fact, and there
would have been no trouble about him giving that evidence.
As to questions of opinion and generally, I
entirely agree with my lord, the Master of the Rolls, that there is no
overriding objection to a properly qualified person giving opinion evidence
because he is employed by one of the parties. The fact of his employment may
affect its weight, but that is another matter. In this particular case, I
consider the material before the court was, and is, quite insufficient for the
court to be enabled to give permission for evidence from Mr Broadbent to be
admitted. For all the court knew, the real issues may have been narrow and such
that a person in Mr Broadbent’s position, and with whatever qualifications he
has, could properly give evidence about them. But neither the circuit judge,
nor we, are able to judge that.
I agree that this appeal should be dismissed.
Appeal dismissed.
