Landlord and tenant — Repairs — Evidence — Expert witness — Local authority landlord — CPR Part 35 — Whether employee of local authority entitled to give expert opinion evidence
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.
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 was 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.
No cases are referred to in this report.
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 contended they had
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 understand 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
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 r 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.
