PROVING THINGS 28: MAKE UNWARRANTED PERSONAL ATTACKS AND USE A "MUD-SLINGING" EXPERT: THAT ALWAYS ENDS WELL
The judgment of Mr Justice Fraser in Scott -v- E.A.R. Sheppard Consulting & Civil Engineering Ltd  1949 (TCC) contains some surprising observations. It also contains important lessons in relation to “conspiracy” theories in litigation and the role of the expert in litigation.
“Mrs Scott had to deal in her cross examination with something of a Victorian approach to the role of women in modern society, namely that she had no particular input into any of the decisions concerning the purchase of the Property and was at the time entirely guided by the male claimants, in particular her father-in-law who, it was said, was paying for everything. It was expressly put to her that everything was “up to her father-in-law”. She dealt with these suggestions with a great deal more politeness than they merited. She did however roundly dismiss them, and I have no doubt that Mrs Scott was a fully involved and entirely independently minded decision-maker in what was obviously a joint decision by her and her husband concerning purchase of the Property and the future of their family.”
The claimants brought a case in negligence against the defendant surveyors. The claimants had purchased a home which required a report from a structural engineer. The defendant reported but failed to notice defects which required the house to be demolished.
THE UNUSUAL ASPECTS OF THE CASE
There were two unusual aspects of the case:
(1) The defendant’s “theory” that the claimants had always planned to demolish the house;
(2) The defendant’s expert evidence, which came under considerable criticism.
THE DEFENDANT’S THEORY
There is one particular feature of this case that merits mention at this early stage in this judgment, and that is the suspicion that appears to have been present from 2013 onwards, on the part of those representing Sheppard Ltd, towards the three claimants and the claim generally. I address this further in the section dealing with witnesses (both factual and expert). There is no doubt that the particular personal circumstances of the three claimants are not entirely usual; Mr and Mrs Scott were literally on the other side of the world during the formation of the retainer with Sheppard Ltd, for example, which meant that Sheppard Ltd was engaged by Dr Scott and not them. Also, following discovery of the state of the property in 2012, Mr and Mrs Scott were advised to have the property demolished by more than one structural engineer, and did indeed choose to follow that advice, and the property was (but only after a period of time) demolished. It is correct to state that from time to time some people make unfounded claims on insurers, and it is of course not only understandable but entirely right that insurance claims are subjected to appropriate scrutiny. However, in this case an air of suspicion appears to have seeped into most parts of the case, with the notable exception of quantum. As a practice of professional engineers, I assume Sheppard Ltd are insured, but whether they are or not does not affect any of my findings. I do not know whether it was the unusual circumstances of this case that led to this air of suspicion, or something else. Certainly it seemed to have been a central plank of the defence, at least for the first day of the trial, that the claimants collectively were highly interested in the plot but not the house, had always intended to demolish this house, and build a replacement.
In my judgment there is nothing in the evidence before the Court to justify the degree (or indeed any) suspicion of the kind demonstrated by some of the points relied upon in the course of proceedings on behalf of Sheppard Ltd. I will deal with the different points in more detail when I come to the witnesses. However, the notion that Mrs Scott, with a young child (who was 3 years old in 2011) and about to train for and then embark upon a new career, with a husband who was to be not only away from home, but serving in the Army on operations in Afghanistan with all the well-known risks this entailed, would also voluntarily embark upon a course of action that involved having her house demolished and a replacement one constructed in its stead, needs only to be expressed to be seen, in my judgment, as wholly fanciful.
Also, the sums at stake, although considerable for the individuals involved, are not large in the context of a contested four-day High Court trial. Mr Sheppard, a highly respected structural engineer of fifty years’ experience, also faced having his professional judgement criticised in a judgment as being negligent. A case of this nature, in my judgment, cries out for resolution by mediation. If it is the degree of suspicion to which I have referred, or unreasonable behaviour on either side, which has contributed to failures in the mediation process, that is highly regrettable for all involved.
THE DEFENDANT’S EXPERT EVIDENCE
The judge had clear criticisms of the defendant’s expert.
The Engineering Expert Evidence in this case was notable for a number of reasons. Firstly, the Joint Experts’ Statement contained precious little, if any, agreement. Mr Taylor explained that this was because he had seen the building and Mr Cockayne had not. Secondly, the evidence of the defendant’s expert Mr Cockayne in Closing Submissions came under sustained attack from the claimants, not least because Mr Howarth described him as “a most unsatisfactory expert witness”. Even the defendant’s own Counsel Mr Goldstone, correctly in my judgment, accepted that Mr Cockayne’s approach to giving evidence was “rather unfortunate”.
Firstly, Mr Taylor personally inspected the Property. Mr Cockayne has never had that opportunity. For whatever reason, notwithstanding the ample notice that the defendant had both of the claim, the situation, the intended demolition, and the express invitation if not encouragement to inspect, Mr Cockayne was only instructed after the demolition had taken place.
Secondly, Mr Cockayne was remarkably quick to dismiss evidence that did not fit his overall thesis, from which he appeared reluctant to move. For example, it is rare for an expert to comment upon what appears to be a perfectly straightforward photograph and comment that “it might be distorted”. There was no reason to suggest that photographs were distorted, other than the fact that what those photographs showed did not suit Mr Cockayne. I found the photographs to be very useful. I found Mr Cockayne’s response to these useful photographs to be highly illustrative to his approach in general when giving expert evidence on the issues in this case.
Thirdly, he made an allegation of serious unprofessional conduct on the part of two professional engineers, namely the authors of the BdR and Tribrach Reports, and expressly stated in the Joint Experts’ Statement that their views may have been influenced by the prospect of further fee income involved in being instructed for the demolition works. This allegation is unfounded for two reasons. It would be an obvious breach of professional conduct on the part of the engineers in question. Further, there would be higher fees available in any event for an unscrupulous engineer if alternative remedial schemes (short of demolition) were to be pursued. This theory of Mr Cockayne was described by Mr Goldstone as his “conspiracy theory”, for rather obviously it would require both of BdR and Tribrach to be guided by the same disreputable motives. I find there is no basis for such a suggestion and it is wholly without foundation in both cases. The fact that it was raised is not to Mr Cockayne’s credit. He raised this in an entirely unsatisfactory way, saying: “I suggested it might be but I don’t think it was a firm affirmation that they definitely were”. He also said:
“It would be very easy to infer they were of a mind to get more work out of further involvement with the building.”
This, in my judgment, is simply mud-slinging on his part. To be entirely fair to Mr Sheppard, he quite rightly and promptly dismissed this suggestion when it was put to him, and he at no point wished to associate himself with Mr Cockayne’s conspiracy theory.
Fourthly, Mr Cockayne’s approach to BRE Guidance on tilting walls in buildings was, in my judgment, verging on the cavalier at times. BRE Digest 475 “Tilt of low-rise buildings” carefully explains the considerations of tilt in existing buildings. Table 2 “indicative values for tilting of low-rise housing” sets out different classifications, and the most extreme is “Ultimate limit” at 1/50 (or more severe). This states:
“If tilt reaches this level, the building may be regarded as in a dangerous condition, and remedial action either to re-level or to demolish the building will be required urgently.”
Mr Cockayne insisted, in my judgment in an attempt to detract attention from Mr Taylor’s measurements, on the need for further investigation and possible remedial action other than demolition. He also stated, “It might be possible to restore the building to some verticality” and that he would only be in favour of demolition if a feasibility study was first done on any one of a number of alternative schemes. He constantly confused or failed to differentiate between the advice that should have been given at the time, with what could have been done to remedy the problems with the building. Given Mr Sheppard had not identified extensive remedial action to remedy the serious problems with the titling walls – well beyond the ultimate limit of 1/50 given by the BRE – this was unhelpful. Buildings can, and sometimes are, saved from very significant tilt; one example discussed in submissions was the Leaning Tower of Pisa. Feasibility of wildly different remedial schemes, and their cost, is a different issue to breach of duty. The issue is: what should Sheppard Ltd have advised at the time? The fact that expensive investigations and design of alternative schemes could have been performed, instead of demolishing the Property, is rather off the point because Mr Sheppard advised neither. He simply did not mention the tilting walls at all.
Fifthly, Mr Cockayne was also applying the wrong standard of proof as he said that the BdR and Tribrach Reports did not “prove beyond doubt” the Property was subject to plain and obvious tilt. He agreed when the point was put to him again that he had wanted to assure himself that these engineers were right “beyond reasonable doubt”. That is not the standard of proof in civil litigation.
Sixthly, he was asked whether a prudent purchaser, if considering a building with tilting walls, would want to know if the property in question were “even close to the ultimate limit category”. His answer was, “If that was the brief.” This is a mealy-mouthed response to a very basic point concerning structural stability. It cannot seriously be suggested that a competent engineer exercising reasonable care and skill would only be obliged to tell a purchaser that the walls were tilting close to the “ultimate limit” of 1/50 if that was the brief given to them.
AND THE RESULT
Unsurprisingly the claimants succeeded. Judgment was entered for £203,092.18 plus interest.
THE “PROVING THINGS”: SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- The Arroyo judgment 2: experts, oh experts.
- Expert shopping: changing experts and disclosure of reports.
- Experts: you’re not right just because you’re famous
- The interchange between lawyers & experts: a difficult issue
- Experts and facts: it is all in the rules.
- The role of the expert witness in litigation: Supreme Court Guidance
- Expert reports: too long and not much use.
- More on experts: non-compliance with the rules taints the evidence badly
- The credibility of witnesses: joint meetings and overreaching experts: a case to point.
- Over eager experts just do not help: they hinder and harm the case of those who call them.
- Beware the expert evidence who “lectures” the court (and tells the judge who to believe).
- Expert evidence about the veracity of witnesses: well, its probably a waste of time.
- An expert must disclose details of professional relationship with a party otherwise the consequences can be dire.
- Irrelevant evidence, inferences and “forgery”: evidential issues in a High Court case.
- Principles of mitigation of loss & the credibility of expert witnesses.
- I didn’t mean it when I signed the joint report: what happens when experts change their minds?
- Expert evidence: the expert’s role: seeing the wood for the trees.
- Cross-examining expert witnesses: hints, tips and links.
- Experts going on a frolic: a family law case where the expert witness was “thoroughly unhelpful”.