ERRORS BY YOUR OWN EXPERT ARE NOT GOING TO LEAD TO A WIN ON APPEAL: A KNOTTY SITUATION

In Network Rail Infrastructure Ltd v Williams & Anor [2018] EWCA Civ 1514 the Court of Appeal considered a “rather obscure” argument that an error by the appellant’s expert should lead to damages being reconsidered.

 

It would be quite wrong to remit the matter for that purpose. Mr Inman was NR’s expert. The issue of residual value was one on which the experts were instructed and which was included in their expert evidence. It was a matter for NR to ensure that its expert was properly instructed and was prepared for all the issues in the case. NR cannot now have a second opportunity to depress the recoverable damages because NR failed to carry out those steps and in circumstances where the outcome of any such remission would be entirely speculative”

THE CASE

The defendant was appealing against an order that it was liable to pay damages to the claimants following the spread of Japanese knotweed onto their property. The Court of Appeal rejected the appeal (albeit on different grounds to the trial judge).  The defendant also appealed against the assessment of damages. The grounds of the appeal were that its own expert, whose evidence the trial judge had preferred, may have erred.

THE JUDGMENT ON THIS ISSUE

    1. This ground of appeal is rather obscure. It concerns the Recorder’s award of £10,500 damages to Mr Williams and £10,000 damages to Mr Waistell in respect of the residual diminution in the market value of their respective properties even after treatment of the Japanese knotweed has been carried out. That residual diminution in market value reflects the possibility of a future return of the knotweed despite appropriate treatment. So far as I have been able to understand this ground of appeal, it concerns the calculation of this continuing residual diminution in value – due to a kind of enduring stigma – rather than an objection in principle to the recovery of such stigma damages.
    2. Accordingly, cases such as Rust (especially the observation of Cotton LJ at 131), West Leigh Colliery Company Limited, and observations of Aldous LJ in Blue Circle Industries at 308-309 , to which reference was made during oral submissions on the appeal and to which I have referred at paragraph [49] above, are irrelevant to this ground of appeal.
    3. According to NR’s skeleton argument, Appeal Ground (2) only arises if NR’s Appeal Ground (1) fails. Given that I would hold that Appeal Ground (1) succeeds, Appeal Ground (2) would appear not to arise. In any event, the claimants object to Appeal Ground (2) and say it should be dismissed because it is both misconceived and was not raised below. I agree.
    4. Mr Hart explained in his oral submissions that this ground of appeal arises as a result of the Recorder’s statement (at [244]) that:
“The claimants’ expert, Mr Hardie and Mr Inman do not agree upon the respective market values of the properties if JKW had never been present and the respective values of their properties after the treatment has been carried out.”
  1. As I understand NR’s point, that statement of the Recorder failed to take into account that there had been Japanese knotweed in the general area for many years. On the issue of the market valuation of the claimants’ properties, the Recorder had preferred the evidence of Mr Neil Inman, NR’s expert, but, according to Mr Hart, the problem was that Mr Inman’s valuation does not appear to have taken into account the fact that Japanese knotweed existed for many years not only within the immediate vicinity of the claimants’ properties but also within a much more extensive area in the locality.
  2. Mr Hart submitted that it should be remitted to establish whether or not Mr Inman would adjust his view of the market value having regard to the full extent of the Japanese knotweed in the area for many years. Mr Hart acknowledged that he was unable to say whether or not Mr Inman would make any adjustment to his open market valuation of the properties on remission, let alone what the amount of such adjustment, if any, would be.
  3. It would be quite wrong to remit the matter for that purpose. Mr Inman was NR’s expert. The issue of residual value was one on which the experts were instructed and which was included in their expert evidence. It was a matter for NR to ensure that its expert was properly instructed and was prepared for all the issues in the case. NR cannot now have a second opportunity to depress the recoverable damages because NR failed to carry out those steps and in circumstances where the outcome of any such remission would be entirely speculative. Furthermore, the cost of that exercise would be out of all proportion to the amount of damages in issue, and it would place an unjustified burden on both the claimants and the judicial system, bearing in mind that there has already been a three-day trial of the action