Field & Anor v Leeds City Council [1999] EWCA Civ 3013 (08 December 1999)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
(HIS HONOUR JUDGE TAYLOR)

Royal Courts of Justice
Strand
London WC2A 2LL
Wednesday 8 December 1999

B e f o r e :

THE MASTER OF THE ROLLS
(LORD WOOLF)
LORD JUSTICE WALLER
LORD JUSTICE MAY

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1. SUSAN FIELD
2. MATTHEW FIELD
(Suing by the First Claimant/Respondent as his next friend)
Claimant/Respondent
– v –
 
LEEDS CITY COUNCIL
Defendant/Appellant

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(Computer Aided Transcript of the Palantype Notes of
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____________________MR ANDREW ARDEN QC and MR JONATHAN MANNING (Instructed by Messrs Dept. of Legal Services, Leeds, LS1 1UR – London Agents, Messrs Sharpe Pritchard, London,) appeared on behalf of the Appellant
MR J LUBA (Instructed by Messrs Zermansky & Partners, Leeds, LS1 5JS) appeared on behalf of the Respondent.

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HTML VERSION OF JUDGMENT
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Crown Copyright ©

Wednesday 8 December 1999

JUDGMENT

    1. LORD WOOLF, MR: This is an appeal from a decision given by His Honour Judge Taylor on 24 June 1999 in the 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.
    2. 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 defendant, who is the subject of a claim by its tenant is a housing authority dependent upon public funds. As Mr Arden, on behalf of this local authority, points out in his skeleton argument, the disrepair claims are funded from the authorities ring-fenced housing revenue account, so the consequence of their expending money on litigation in a case of this nature means that funds which could be used for improving their housing stock are diverted elsewhere.
    3. The present proceedings have a substantial history. I deal with it shortly because of the hour and because the hearing which is intended to take place before Christmas depends on the parties knowing the result of this appeal.
    4. 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 which 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.
    5. 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 which 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 which 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.
    6. 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 which the claimants alleged had not been completed and, in part, a claim for damages for personal injuries which the claimants contend that they have suffered as a consequence of the premises being out of repair.
    7. 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 which were caused by rising damp or condensation. He put the case in very broad terms; if it was condensation, then it would be the City’s contention that that was not due to default on their part, but, if it was rising damp, then the City could be responsible.
    8. 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.
    9. With this long history it is now a case which, 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 which 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 the them. They therefore appealed to the judge. It is against the decision which the judge gave dismissing the City’s appeal that this appeal arises.
    10. 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 which arises on this appeal, then it is a non-issue. Mr 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.
    11. 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.
    12. 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 that, reading the judgment as a whole, 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.
    13. 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 was that, in spite of the history to which I have referred, Mr Broadbent has, even today, not prepared a report which indicates what evidence he would want to put before the court if he was allowed to do so. In particular, there was no information available to the court, which would have made it apparent that his report complied with Part 35. That is indicated Mr Broadbent’s precise experience and precise role in the City Council.
    14. 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.
    15. 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 which 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.
    16. 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.
    17. We have been given information which 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 ten 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.
    18. 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.
    19. If the City Council wishes 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 I would encourage, if a person such as Mr Broadbent is to give evidence, the authority concerned provides 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 which was before him.
    20. 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 which 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.
    21. 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 His Honour 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.
    22. 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 which are in issue can be relatively small. Anything which reduces that expense is to be warmly welcomed. The ideal way of disposing of issues such as that which 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.
    23. 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 which 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.
    24. In the circumstances which I have indicated, I would dismiss this appeal.
    25. LORD JUSTICE WALLER: 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.
    26. The question whether someone should be able to give expert evidence should depend on whether, (i) it can be demonstrated whether that person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence.
    27. The difficulty in this case is that neither before the district judge nor before His Honour 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 was 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, the appropriate course is to dismiss this appeal.
    28. LORD JUSTICE MAY: 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 and was disproportionately large. The CPR and its overriding objective aim to reduce or eliminate this disproportion.
    29. 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.
    30. In the present case, if the local authority had put before the District Judge the report which 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.
    31. 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 case he has, could properly give evidence about them. But neither the circuit judge, nor we, or are able to judge that.
    32. I agree that this appeal should be dismissed.

Order: Appeal dismissed with costs. Legal Aid Assessment.

 

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