Thursday Law Report: Employed expert may be called as expert witness

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The Independent Culture
16 December 1999

Field v Leeds City Council

Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Waller and Lord Justice May) 8 December 1999

THE FACT that an expert was employed by a local authority would not disqualify him from giving evidence on the authority's behalf, if he was properly qualified to give evidence.

The Court of Appeal dismissed the appeal of Leeds City Council against an order that it could not call its chosen expert to give evidence in disrepair proceedings.

The claimant, who was the tenant of the defendant council, brought proceedings for disrepair, claiming specific performance of work allegedly not carried out and claiming damages for personal injury suffered as a consequence of the premises being out of repair.

At a directions hearing the district judge directed, inter alia, that an independent surveyor's report should be obtained by the council. The council wished to use a Mr Broadbent, who was employed in its housing services claims investigation section, as its expert. However, Mr Broadbent was unacceptable as an expert to the district judge because he was a council employee.

The council appealed to the judge, who upheld the decision of the district judge. The council appealed, on the ground that the judge had erred in holding that, under the Civil Procedure Rules 1998, it was inappropriate in a case such as the present for the council to call an expert witness who was employed by the council. The claimant submitted that the judge had not made his decision on principle, but had merely been dealing with the specific expert in relation to whom the appeal was being made.

Jan Luba (Zermansky & Partners, Leeds) for the claimant; Andrew Arden QC and Jonathan Manning (Janice Ghadvi, Leeds) for the council.

Lord Woolf MR said that if an expert was properly qualified to give evidence, the fact that he was employed by a local authority would not disqualify him from giving evidence on the authority's behalf.

Although it was true that in the present case the judge had recognised that there could be situations where an employed expert could be used, reading his judgment as a whole, the impression gained was that his objection had been not in relation to Mr Broadbent's qualities, but in relation to the nature of his employment.

The judge had been anxious to reflect the undoubted spirit of Part 35 of the CPR, which contained the rules as to experts, in the best way that he could, and had been much influenced by the need for an expert to be a truly independent witness. He had seen difficulties in someone who was employed by the local council being regarded in that way.

He had also been in difficulty in that he had not been provided with a copy of Mr Broadbent's report. Without the benefit of that report, and without knowing more about Mr Broadbent's experience and the actual nature of his employment, the judge could not have decided whether he was qualified to give evidence or not. Instead of rejecting Mr Broadbent as a witness, the judge should have have indicated that on the information with which he had been provided he could not assess him as a witness, and left it to the council to satisfy him if it could that Mr Broadbent was capable of giving the evidence.

However, notwithstanding that the judge had adopted the wrong approach, since the hearing of the claim was imminent and it would not be possible to go through the requisite procedures to decide whether Mr Broadbent was an appropriate witness within th e time span available, the appropriate course was for the council to use another expert whom they had consulted, and whose qualifications were not in dispute.

Disrepair claims had financial significance to local authorities and to tenants which should not be ignored.

It was to be hoped that procedures would be devised which would involve claimants in such cases informing the authority of the expert whom they were going to engage so that the views of the authority could be taken into account in the appointment of that expert. That could lead to single experts being appointed much more often than had previously been the case.