How the Civil Procedure Rules have has affected dilapidation claims with the expert witnesses

The aim of this dissertation is to consider how the introduction of the Civil Procedure Rules (“CPR”) has affected dilapidation claims with particular emphasis on the role played by the expert witnesses. In considering this question it is also important to look at the broader picture and consider the general changes brought about by the CPR to English litigation, as well as the reasons behind the need for such changes.

Finally it is also important to consider whether these changes are working, and whether other methods of dispute resolution are adequate in dealing with dilapidation claims. 

This dissertation has accordingly been divided into four chapters.  Chapter one provides a background to the reforms brought about by Lord Woolf, chapter two considers how the CPR generally affects dilapidation claims, chapter three considers the role of the expert witness and chapter four considers other methods of dispute resolution that may be suitable in dilapidation claims.  This is followed by a conclusion considering how and whether the CPR has been successful in changing the litigation process as so desired by Lord Woolf.  

Chapter One

Background to the introduction of the CPR

When enacted, the CPR was proclaimed to be a new procedural code.  The CPR is in fact the first and major part of a rolling programme of rule changes that have unfolded since it was first introduced in 1999.  Notably since 1851, there have been over 60 reports dealing with small or large aspects of reform in the fields of English procedure, both civil and criminal. 

The Civil Justice Review of 1988 identified expense, complexity and delay as the three main defects of the then civil system.   The Heilbron/Hodge report 1993 aimed further blows at the system and it was perhaps as a result of this report that Lord Woolf was appointed in 1994 by the then Lord Chancellor (Lord Mackay) to review the system of civil procedure with a view to reform.

Lord Woolf’s two reports, interim and final, provide the blue-print for profound changes introduced in April 1999.  One commentator said that the Woolf enterprise of radical reform is “a noble enterprise which ought to be applauded and supported.”  It is true to say that the CPR represents the greatest shake-up in civil procedure since the 1870s, when the common law and equity jurisdictions were fused in a combined High Court, or since the withering of civil juries during the last 100 or so years. 

The three major problems of the old system of civil procedure identified by Lord Woolf, correspond with those already described in the Civil Justice Review in 1988 already referred to above, namely the high cost of litigation, delay and complexity.  It was also seen as unequal and unjust,

“the defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court.”  

Lord Woolf was particularly concerned with the problematical adversarial “culture” found within English litigation, “the adversarial process [namely the absence of judicial control] is likely to…degenerate into an environment in which the litigation process is too often seen as a battle field where no rules apply.”   As reported by the Chancery Judge Mr Justice Lightman, “in cases before me I have had “blue chip” firms carrying on at their clients’ expense feuds with each other in the form of vitriolic correspondence and total non-co-operation during the trial, where I have had to act as a mediator between them.  If the price of impressing clients is indulging in these tactics, it is a price which no [practitioner] can afford to pay consistently with his duty to the Court, and the sanctions for breach of this duty must be real enough to deter recurrence.”

Lord Woolf also referred to a wasteful system which leads to “every aspect of the case [being] fully investigated [by the parties].  This encourages excessive work and cost on issues which are often recognised from an early stage to be peripheral.”  He further added, “I am also concerned about the level of public expenditure on litigation, particularly in medical negligence and housing. In both of these areas substantial amounts of public money are absorbed in legal costs which could be better spent, in the one case on improving medical care and in the other on improving standards of social housing. An efficient and cost effective justice system is also of vital importance to the commercial, financial and industrial life of this country and I was anxious to improve this, especially because of the evidence I received that there was a substantial risk of the existing system changing our competitive position in relation to other jurisdictions. Finally I was anxious to ensure that the judiciary and the resources of the Court Service were deployed to the best effect.”

In order to carry out this task, Lord Woolf set out his proposals to “change the landscape” of litigation in paragraph 9 of his final report on Access to Justice.

His proposed changes included the fact he wanted litigation to be avoided whenever possible.  He wanted potential litigants to be encouraged to start court proceedings to resolve disputes only as a last resort, and only after using other more appropriate means of resolving their dispute when these are available. He accordingly suggested that information on sources of alternative dispute resolution (ADR) be provided in all civil courts. Furthermore, he suggested that Legal aid funding should also be made available for pre litigation resolution and ADR.  
Protocols in relation to medical negligence, housing and personal injury, and additional powers for the court in relation to pre litigation disclosure, were also an important addition, as these would enable parties to obtain information earlier and promote the settlement of cases.
Another important feature of the new regime, would be the provision that in commencing litigation both parties would be able to make offers to settle the whole or part of a dispute.   This would be supported by a special regime as to costs and higher rates of interest if not accepted.
In seeking to make litigation less adversarial and more co operative, Lord Woolf proposed that there should be an expectation of openness and co operation between parties from the outset, supported by pre litigation protocols on disclosure and experts. The courts would further be able to give effect to their disapproval of a lack of co operation prior to litigation.  Furthermore, the court would play a greater role in encouraging the use of ADR at case management conferences and pre trial reviews, and would take into account whether the parties have unreasonably refused to try ADR or behaved unreasonably in the course of ADR.
The duty of experts to the court would be emphasised. Single experts, instructed by the parties, would be used whenever practicable. Opposing experts would be encouraged to meet or communicate as early as possible to narrow the issues between them. The court would also have a power to appoint an expert when required.
In seeking to make litigation less complex, Lord Woolf proposed there should be a single set of rules applying to the High Court and the county courts. The rules would be simpler than the old system, and special rules for specific types of litigation would be reduced to a minimum. All proceedings would also be commenced in the same way, by way of a claim.
Importantly, the claim and defence would not be technical documents. The claim will work to set out the facts alleged by the claimant, the remedy sought by the claimant, the grounds on which the remedy is sought and any relevant points of law. The defence will set out the defendant's detailed response to the claim and make clear the real issues between the parties. Both 'statements of case' are to include certificates by the parties verifying their contents so tactical allegations would no longer be possible.
During proceedings the court on its own initiative, or on the application of either party, would be able to dispose of individual issues or of the litigation as a whole where there is no real prospect of success, whilst claimants would be able to start proceedings in any court. The court would be responsible for directing the parties or for transfering the case (if this is deemed necessary), to a more appropriate part of the system.
Discovery would also be controlled.  Is some cases, when deemed necessary, the old pre CPR scale of discovery would be possible but in the majority of cases there would be a new standard test for more restricted disclosure.
Special procedures, involving active judicial case management, to deal with multi party actions expeditiously and fairly would also be set up.
Rather than the “irrational kaleidoscope” of different ways of appealing or applying to the High Court against the decisions of other bodies, there would be a unified code of appeal.
The timescale of litigation would be shorter and more certain.  All cases would progress to trial in accordance with a timetable set and monitored by the court (rather than be controlled in the best part by litigants themselves).  For fast track cases there would be fixed timetables of no more than 30 weeks whilst the court would apply strict sanctions to parties who do not comply with the procedures or timetables.
Appeals from case management decisions would be kept to the minimum, and be dealt with expeditiously. Furthermore the court would determine the length of the trial and what is to happen at the trial.
Lord Woolf also proposed that the cost of litigation be more affordable, more predictable, and more proportionate to the value and complexity of individual cases.  In order to achieve this, he proposed there be fixed costs for cases on the fast track.  
Estimates of costs for multi track cases would also be published by the court or agreed by the parties and approved by the court.  There would be a special 'streamlined' track for lower value or less complex multi track cases, where the procedure can be made much simpler with appropriate budgets for costs. In cases where the procedure is uncomplicated and predictable the court would issue guideline costs with the assistance of users.
There would also be a new test for the taxation of costs to further the overriding objective. It would be that there should be allowed "such sum as is reasonable taking account of the interests of both parties to the taxation."
Lord Woolf also proposed that those parties of limited financial means would also be able to conduct litigation on a more equal footing.  Litigants who are not legally represented would be able to get more help from advice services and from the courts whilst procedural judges would take account of the parties' financial circumstances in allocating cases to the fast track or to the small claims jurisdiction.
 Limited procedures and tight timetables on the fast track, and judicial case management on the multi track, would make it more difficult for wealthier parties to gain a tactical advantage over their opponents by additional expenditure. Furthermore, when deciding upon the procedure which is to be adopted the court would, if the parties' means are unequal, be entitled to make an order for a more elaborate procedure, conditional upon the other side agreeing to meet, in any event, the difference in the cost of the two possible procedures. This new approach would be supported by more effective sanctions, including orders for costs in a fixed sum which would be paid promptly.
Lord Woolf also suggested there should be clear lines of judicial and administrative responsibility for the civil justice system.  Accordingly, the Head of Civil Justice would have overall responsibility for the civil justice system in England and Wales.
The Presiding Judges on each Circuit would exercise their responsibility for civil work in conjunction with the two Chancery judges who would also oversee the business and mercantile lists.  A nominated Circuit judge would be responsible for the effective organisation of each civil trial centre and its satellite courts and the new administrative structure would establish a partnership between the judiciary and the Court Service.
Lord Woolf felt strongly that the structure of the courts and the deployment of judges should be designed to meet the needs of litigants. In doing so, he proposed heavier and more complex civil cases would be concentrated at trial centres which have the resources needed, including specialist judges, to ensure that the work is dealt with effectively.
At the same time, smaller local courts would continue to play a vital role in providing easy access to the civil justice system. Housing claims, small claims, debt cases and cases allocated to the fast track would be dealt with there, as well as case management of the less complex multi track cases.  Lord Woolf also proposed that better ways of providing access to justice in rural areas would be maintained and developed.
Furthermore, the courts should have access to the technology needed to monitor the progress of litigation and litigants should be able to communicate with the courts electronically and through video and telephone conferencing facilities.
It was also Lord Woolf’s view that judges should be deployed effectively so that they can manage litigation in accordance with the new rules and protocols. Judges should accordingly be given the training they need to manage cases and be encouraged to specialise in such areas as housing and medical negligence.
Cases should therefore be dealt with by the part of the system which is most appropriate in each instance. The distinctions between the county courts and High Court and between the divisions of the High Court should accordingly be of reduced significance.
In maintaining a civil justice system that is responsive to the needs of litigants, Lord Woolf proposed the courts provide advice and assistance to litigants through court based or duty advice and assistance schemes, especially in courts with substantial levels of debt and housing work.  Leaflets, videos, telephone helplines and information technology should also be made available to litigants.  Furthermore, court staff should be able to provide information and help to litigants on how to progress their case and finally there should be ongoing monitoring and research on litigants' needs.
It is these reforms as proposed by Lord Woolf that have so radically changed the face of English litigation, including to some extent dilapidation claims as considered in detail  in the next chapter. 

Chapter 2 - The influence of the Civil Procedure Rules on Dilapidation Claims

Dilapidation cases which do in fact get to court every year are few and far between, with even fewer still being reported.  This is so, despite the fact that the number of potential claims must annually be tens of thousands, due to the fact almost every lease or tenancy of any description of property is likely to impose an obligation to repair upon the tenant or the landlord or both.  Furthermore, in many cases, it is likely that those obligations would not have been fully complied with. 

This is because, despite the fact landlords and tenants are normally aware of the potential for such claims, both generally recognise that the problems are essentially practical ones that ought if possible, to be settled by negotiation rather than by litigation.  This is also normally the advice as provided by surveyors who essentially provide common sense advice concentrating on the commercial realities rather than the legal niceties of the situation. 

The Woolf reforms, the approval of the pre-action protocol for Housing Disrepair cases, the increasing use of the Property Litigation Associate’s (as yet unadopted) Pre-Action Protocol for Terminal Dilapidations particularly emphasise settling cases out of court whenever possible and are likely to continue reducing the number of dilapidations claims even further. 

When considering whether to make a claim for dilapidations against his tenant, a landlord will be influenced by the nature of the event prompting him to do so.  This includes instances where disrepair becomes apparent on inspection (obvious examples include disrepairs to the roof of a building which, if not repaired soon, could lead to an outbreak of dry rot or to serious damage to the fabric).  Further examples also include instances of assignment of reversion.  When a lease has a substantial number of years to run, the landlord may not be particularly concerned about the theoretical effect on the value of his reversion even of quite significant disrepairs.  This is because the theoretical diminution in the value of his reversion is only a loss on paper.  On the other hand, should the landlord wish to sell his reversion or raise substantial finance on it, the paper loss could become a reality, in which case he may wish to take effective action to force the tenant to comply with his covenants.  Other instances where landlords consider whether or not to seek compliance with the repairing obligations of the lease include instances where a tenant proposes an assignment of a term, in cases of emergencies (where there is an unforeseen failure of the part of the structure of the building which the landlord, either of his own volition or under compulsion from a statutory authority, wishes to have remedied as a matter of urgency), in instances where there have been complaints,  at the time of rent review or most commonly at the expiry of the term.

Whether or not a landlord decides to take action, will depend on three things, namely the event prompting his consideration of the claim, the nature of the remedies available and the overall assessment of the benefits of making a claim weighed against the costs and risks of doing so. 

Pre Action Protocols

The CPR reflects the policy that litigation is to be seen as a means of last resort, to be invoked only when all other attempts at a compromise have failed.  The Pre-Action Protocol for Housing Disrepair Cases requires extensive steps to be taken with a view to formulating, clarifying and settling residential disrepair claims in order to avoid resorting to court procedures.  The Protocol is framed in terms reflecting the practical reality that such claims are almost inevitably brought by tenants against landlords, rather than vice versa.  Accordingly if a formally adopted pre-action protocol is introduce for terminal dilapidations claims generally, its procedures will have to be observed as an essential precursor to the start of proceedings.  Despite the fact that at the time of writing no such protocol has been formally adopted, the existence of the Property Litigation Association’s recommended Protocol for Terminal Dilapidations Claims for Damages will influence practice and is likely to be treated by the courts as representing best practice (this issue is discussed in more detail below). 

Even prior to the CPR, it was considered courteous and sometimes essential for an intending claimant to send a “letter before action” notifying the proposed defendant of the prospective claimant’s intention to commence proceedings against him.  Notably, if the proposed defendant was willing to satisfy the claim, by either making a payment or carrying out works in accordance with the letter before action, court proceedings would not be issued.  Letters before action therefore provide the proposed defendant with a last chance to avoid litigation, and generally marks the point from which the expenses of pursuing the claim could be recovered as costs in the proceedings. 

In light of the fact one of the aims of the CPR was to reduce the number of claims that went to court, it places a great emphasis on the steps which the parties should take so as to settle their differences prior to the commencement of proceedings.  The procedures as introduced by the CPR, are novel in that they require the proposed defendant (as well as the claimant) to make a genuine effort in explaining their position and provide sanctions in cases of default.

 The “pre-action protocols” as introduced by the CPR outline the steps parties should take to seek information from and to provide information to each other about a prospective legal claim.  The objectives of protocols may be described as being:

(1) to encourage the exchange of early and full information about the prospective legal claim,
(2) to enable parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings,
(3) to support the efficient management of proceedings where litigation cannot be avoided.

The Practice Direction refers to CPR, r.3.1 (4) and (5), entitling the court to take into account compliance or non-compliance with any relevant protocol when giving directions, and further entitles the court to order a party who has failed to comply to pay a sum into court, and to CPR r.44.3 (5) (a), which includes within the conduct relevant to the exercise of the discretion as to costs “conduct before, as well as during proceedings and in particular the extent to which the parties followed any relevant pre-action protocols.”

The Practice Direction further states the consequences which may follow if, in the court’s opinion, such non-compliance leads to the start of proceedings that otherwise might not have needed to be commenced, or has led to costs being incurred in proceedings that might otherwise not have been incurred (including penalties as to costs and interest).  In such instance, the court will seek to place the “innocent” party in no worse a position than he would have been in if the relevant protocol had been complied with.  Examples include claimants who may be found to have failed to comply by not having provided enough information or by not having followed the procedure as required by the protocol.   In the same way, a defendant may be found not to have complied if for example, he or she fails to make a preliminary response to the letter of claim within the time fixed by the relevant protocol, or by not making a full response within the time fixed or for not disclosing documents that are required to be disclosed.

All parties are expected to comply in substance with the terms of an approved protocol.   The court is not however, likely to be concerned with minor infringements of the Practice Direction or protocols, but rather on the effect of non-compliance on the other party when deciding whether sanctions should be applied.

At present, and as referred to above, no protocol for general use in dilapidation cases has been approved by the Lord Chancellor’s Department for the purposes of the CPR.  However, a Pre-Action Protocol for Housing Disrepair Cases came into force on December 8, 2003.  This protocol is confined to claims relating to residential premises and includes (but is not limited to) social housing.  Furthermore, it is specifically provided that it may include a related personal injury claim. Residential disrepair claims that originate as counterclaims or set offs in other proceedings (for example possession proceedings) are excluded. 

No other approved protocol for use in dilapidations cases exist.  However, after a process of consultation with the judiciary and the relevant affected professions, the Property Litigation Association has published a Protocol for Terminal Dilapidations Claims for Damages.

The document was the result of work by the Sub-Committee on Law Reform and members were invited to consider it, provide feedback on it and, if appropriate, use it.

On 14 November 2000 a seminar was further held in London, where a panel of surveyors as well as solicitors and judges were invited to express their views on the proposed protocol.  The Protocol has since been sent to the Lord Chancellor’s Department for adoption as an approved Protocol under the CPR although at this stage it has no official status other than it represents the Property Litigation Association’s recommended process for conducting terminal dilapidations claim.

Despite this fact RICS has annexed the Protocol to their updated Guidance Note on dilapidations claim  meaning that it is likely to be frequently used by surveyors, with the result that even if it is not approved by the Lord Chancellor’s Department, it is likely to become industry standard.

Accordingly, for the time being, the present position (except in residential cases) is governed by paragraph 4 of the Practice Direction – Protocols which provides that:

“In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a) (b) and (c) to act reasonably in exchanging documents relevant to the claim and in trying to avoid the necessity for starting proceedings.”

It is however, reasonable to expect that the court will accept the suggestion made in the introduction to the Protocol for Terminal Dilapidations Claims for Damages that it should treat the standards set out in the protocol as the normal reasonable approach to pre-action conduct when the court considers the issue of costs and other sanctions under the CPR.

Jurisdiction

The CPR abolished, for the most purposes the distinctions between claims that were within the jurisdiction of the High Court and the County Court.  This means that questions raised as to which court is most suitable to hear a particular matter continue to exist, but such questions will largely be dealt with by the process of transfer from one court to another and not by formal limits on jurisdiction.  Notably, an exception to this may be claims for leave under the Leasehold Property (Repairs) Act 1938.  Apart from this particular instance, the case management of dilapidations claims will be treated in the same way as any other civil proceedings under the CPR.  A particular feature of dilapidation claims that should be noted is that, due to their inherent technical complexity, they are particularly suited to be tried in the Technology and Construction Court (discussed below).

The Technology and Construction Court

“Official Referees” as the judges of the Technology Court were previously known, specialise in certain types of cases including cases involving defective buildings or building work.  This makes them well suited to trying many types of dilapidation cases.  Even before the CPR the Technology and Construction Court had already developed special procedures and directions that were suitable for complex cases.  When the CPR was first introduced, proceedings in the Technology and Construction Court were considered as “specialist proceedings” under r.49.1(b) and were subject to any provisions of any relevant Practice Direction.  Since 25 March 2002, the procedure in the Technology and Construction Court has been governed by Part 60 of the CPR and the Practice Direction “Technology and Construction Court Claims” supplementing Part 60.  

It is important to note that claims may only normally be brought in the Technology and Construction Court, if it involves issues or questions that are technically complex or a trial by a Technology and Construction Court judge is desirable.  Examples provided by the Practice Direction include claims between landlord and tenant for breach a repairing covenant. 

The Leasehold Property (Repairs) Act 1938

Section 6 of the 1938 Act expressly provides that the appropriate court for an application for leave to be made is the county court, unless the proceedings by action for which leave may be given has to be taken in a Court other than the County Court, in which case the application should be made to that other court. 

In light of the changes made by the CPR (as well as earlier changes made by the Courts and Legal Services Act 1990 and the High Court and County Courts Jurisdiction Order 1991), there is now no instance in which proceedings for either forfeiture or damages or both to have to be taken in the High Court and such proceedings may now be taken in either court.  I would seem to follow that an application for leave under the Act, must therefore be brought in the county court, and that the High Court no longer has jurisdiction to grant leave.  This point is less important than it used to be, since there is no longer any difference in procedure between the High Court and the County Court, although if proceedings are commenced in the incorrect court and subsequently need  to be transferred, this may result in delay and additional cost.  

An application for leave will normally be brought by means of proceedings under CPR Part 8 “Alternative Procedure for Claims.”   However, in cases where  there is likely to be a significant dispute as to fact it would be preferable for the proceedings to be commenced by issuing a claim form under Part 7, although it is doubtful whether this is permissible under the CPR.   Accordingly, it is advisable to start such proceedings under Part 8 and to seek appropriate directions under the case management powers of the court where, because disputed issues of fact arise or for other reasons, it is unsatisfactory to proceed as an ordinary Part 8 claim.

Evidence in 1938 Act Applications

Since the decision in the case of Associate British Ports v C.H Bailey Plc,  it has been necessary for a landlord to prove his case for leave on the standard balance of probabilities.  This includes the service and validity of the s.146 notice, the existence of breaches of covenant, the existence of grounds under s.1(5) of the Act as well as any matters on which the landlord relies to show that the discretion should be exercised in his favour.  Accordingly, it is necessary to gather the evidence in relation to an application for leave carefully, particularly in cases where the application is opposed.

If proceedings are commenced under Part 8, the landlord as Claimant must file any written evidence he seeks to rely on, at the same time as he files his claim form, and must serve it on the defendant when serving the claim form.  The evidence will usually be in the form of witness statements, although in addition, the claimant can rely upon any statement in the claim form as evidence, so long as this is verified by a statement of truth.  The normal rules of evidence apply, meaning any reliance on hearsay evidence will be subject to the restrictions and safeguards imposed by the Civil Evidence Act 1995 and expert evidence may only be relied upon if permitted by the court.

The defendant thereafter has to acknowledge service within 14 days after service of the claim form, and at the same time serve any written evidence upon which he intends to rely.  This may be difficult if expert evidence is to be relied upon of if there is a dispute about the detail of the schedule of dilapidations, meaning the defendant is likely to seek the court’s permission to serve evidence outside the time limit. 

The court may allow or require a party to give oral evidence at the hearing and may give directions for the attendance for cross-examination of a witness who has given evidence. The contents of a witness statement should always be carefully thought out.  Under the procedures prior to the CPR, affidavits were often relied upon which failed to adequately explain the true nature of the grounds and supporting facts upon which the application was based.  This was criticised by Megarry V.C in the case of Land Securities Plc v Receiver for the Metropolitan Police District where the landlord’s evidence was criticised as follows, “the evidence is not impressive.  Expressions of opinion by a chartered surveyor which do little more than apply to the building something of the language of paragraphs (a) (b) and (e) [of section 1 (5) of the 1938 Act] and wind up with a watered down version of (e), obviously leave a good deal to be desired.”
 
Accordingly, following the decision in Associated British Ports v B.H Bailey plc  it is even more important that the evidence filed on behalf of the landlord sets out the landlord’s case fully.

Summary Judgment

Part 24 of the CPR provides the court with powers to give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if it considers that the claimant has no real prospect of succeeding in the claim or issue or that the defendant has no real prospect of successfully defending the claim or issue, and that there is no other reason why the case or issue should be disposed of at a trial. 

Part 24 departs from the former RSC Ord. 14 in the ability with which it gives to the defendant to apply for summary judgment.  However, it is thought that summary judgment will rarely be given in favour of a defendant in a dilapidations claim (except in cases where the defendant relies upon the second limb of s.18(1) of the Landlord and Tenant Act 1927).    

An application for summary judgment is made by an application notice before the master or district judge.  Evidence in support can either be contained in the claim form or in the application supported by the appropriate statement of truth, or in a witness statement served with the application.  Paragraph 2 of the Practice Direction supplementing Part 24 requires the application notice or evidence to identify concisely any point of law or provision in a document on which the applicant relies and/or state that the application is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue, or of successfully defending the claim or issue to which the applicant relates and that the applicant knows of no other reason why the disposal of the claim or issue should await trial.

It is likely in dilapidation claims that applications for summary judgment for damages to be determined at a further hearing are likely to be made where it is obvious that there exist at least some items of disrepair for which the defendant is liable.  If so, the claimant will seek to argue that even if one breach can be shown to exist, he or she must be entitled to judgment in his favour.

Two arguments exist against this.  Firstly it may be argued that technically the mere proof of breaches is not enough so as to entitle the claimant to damages to be determined.  Arguably, the claimant will also have to prove that the existence of the proved breach or breaches has caused  a diminution in the value of his reversion, as otherwise he or she will not be entitled  to any damages, including nominal damages, by virtue of the provisions of s.18(1) of the Landlord and Tenant Act 1927.  Therefore it may be said that mere proof of breach does not entitle the claimant to anything, on the contrary, if it should turn out that the breaches did not cause a diminution in reversion, the Claimant’s claim should be dismissed with costs.  This argument may be successful in cases where only a small number of breaches can definitely be proved and it is less likely to prevail in cases where it is obvious that there are a large number of items for which the defendant is responsible.  Accordingly in that instance the court may conclude that it is sufficiently likely that some diminution has been caused for judgment for damages to be determined to be appropriate.

Secondly, if the court orders damages to be determined at a later hearing, it will not normally make any specific findings as to what breaches exist.  Accordingly it follows that whoever subsequently determines the amount of damages will in effect be trying the question of breaches for a second time.  Even if the court finds that a particular breach exists at the hearing of the application for summary judgment, the nature of that breach will have to be gone into again on the determination of damages, because it will be relevant at that stage to consider what is the appropriate remedial work.  This is illustrated in instances where the court may find on the application for summary judgment that for example the roof covering is defective.  That fact is sufficient to establish a breach, but so as to determine damages, it will be necessary to enquire whether the covenant requires the roof covering to be replaced in its entirety, or whether localised patch repairs will do.  It is thought that for these two reasons, summary judgment will normally be an unnecessary extra step that does not really achieve anything in dilapidation cases, and will tend to delay the final judgment as well as increase costs.

A further complication arises where the claimant’s claim is not for damages at the expiry of the term but for forfeiture of the lease and damages.  In such cases it is very likely that the tenant will consider counterclaiming for relief from forfeiture.  Accordingly, provided that the tenant’s claim is bona fide and has at least some prospect of success, the court cannot make an order for possession under Part 24 pending the trial of the counterclaim.   The court that hears the application will have to decide  what the items of disrepair for which the defendant is liable actually are, how serious those breaches are, the circumstances under which the breaches arose and whether the defendant ought to be granted relief upon terms that he carry out a specific schedule of works.  This type of investigation is of essentially the same matters that would have to be investigated on the determination of damages.  Accordingly it would be necessary to ensure that the application for relief and the determination were heard by the same court as part of the same hearing.

It is accordingly thought that in many instances where the claimant seeks summary judgment for damages to be determined, the court ought properly to conclude that there is another reason why the case or issue should be disposed of at a trial within the meaning of Part 24.2(b).  In such cases it seems that the court should dismiss the application as the court will no longer follow its former practice of giving leave to defend.

For the reasons discussed above, in most cases there will be little to be gained by an application for summary judgment for damages to be determined, save possibly a dent in the tenant’s morale by having lost the first round.  More importantly, judgment for damages to be determined carries with it the risk that further items of disrepair, for which the tenant it liable, may be discovered after judgment.  Once judgment has been given, it will not be able to amend existing proceedings so as to provide details of new breaches.  At the worst case scenario, new proceedings may be struck out under CPR, r.3.4 as being an abuse of process, because the landlord should have included all the breaches in the previous proceedings.

Notably a tenant against whom judgement for damages to be determined is given, should ensure that the order makes clear that he is, on the determination, entitled to dispute the individual items in the schedule.  If he or she does not do this, it may be argued on the determination that the effect of the judgement was that the tenant cannot dispute anything in the schedule.

Scott Schedules

Dilapidation claims will involve not only the usual pleadings normally encountered in civil litigation, but also a pleading known as a “Scott Schedule”.   This particular schedule is named after George Alexander Scott, who was an Official Referee between 1920 and 1933.  The nature of the disputes that were referred to the Official Referees (now the Technology and Construction Court) involved them in deciding numerous facts on an item by item basis, and this meant the traditional forms of pleadings were cumbersome in dealing with such disputes.   The Scott Schedule was a type of pleading that brought both parties ‘ cases in relation to each of the disputed items together in a tabular format and more importantly, in a single document.  This could be easily referred to by council, witnesses and the judge during the trial and facilitated the understanding of evidence.  It is now settled practice for the judge of the Technology and Construction Court, in succeeding the Official Referees, to order that a Scott Schedule be prepared.   Notably, such a direction may also be made in appropriate cases, by any court. 

The initial burden of preparing the schedule lies with the claimant.  The document must set out under appropriate headings the claimants case in relation to liability and quantum on an item by item basis.  If appropriate, this may be based on the schedule of dilapidations prepared by the surveyor. 

The purpose of the schedule is to enable both sides to know what the issues are and it is important that the defendant pleads his case properly in the Scot Schedule.  A bare denial of liability for a particular item is not helpful in advancing the case.  For example, where the claimant pleads in column (x) that “the roof covering is torn or holed over approximately 60 per cent of its total area”, the defendant’s case may the that the roof is not torn or holed at all as alleged or that the roof is torn or holed, but not to the extent as alleged by the claimant.  Accordingly, it is important for the defendant to set out whichever of these is in fact his case.

It should be stressed that the Scott Schedule is designed to encapsulate the parties’ respective cases in relation to the detailed items of claim, and is taken to be without prejudice to any defence of a general nature that has been raised in relation to liability or quantum.  In admitting that items of disrepair existed and that remedial works were necessary to make things right at a certain cost, the defendant is not admitting that these repairs are in fact his liabilities under his covenants, or that the cost of remedying the defects is relevant to the quantification of the claimant’s loss if any.  These general defences should be raised in the defence in the ordinary way and need to be repeated in the Scott Schedule.  This type of schedule not only works to save time during the proceedings, but also helps to concentrate the minds of the parties at a relatively early stage upon the exact nature of their detailed cases, and the nature and importance of the issues which divide them.  Preparing the schedule at an early stage will give both parties an opportunity to narrow the differences between them and may help them to reach a realistic compromise.

Disclosure

Disclosure enables one party to litigation to obtain the right to inspect and if desired to request copies of documents in the control of the other party.  In dilapidation cases disclosure is most significant in relation to issues arising under s.18 (1) of the Landlord and Tenant Act 1927, and in particular whether the landlord intended to redevelop the premises following the termination of the lease.  In such cases disclosure enables the tenant to see not only those documents that are available to the public at the relevant time, including planning applications, but also internal memoranda and other documents evidencing the landlord’s private thinking on the matter. 

CPR Part 31 allows a party to make a reasonable search for documents that adversely affects their own case or adversely affects or supports another party’s case and to make and serve on the other parties a list of those documents.  The party must also include in the list any other documents on which he relies.  The disclosing party is then under an obligation to disclose  the documents to the other parties and allow them to inspect the documents in the list, except where there is a right to withhold inspection, or where it is considered that it would be disproportionate to the issues in the case to allow disclosure of those documents.  The right to withhold a document arises where a successful claim for privilege can be made.  Documents that contain advice from legal advisers on legal matters are absolutely privileged, but this does not apply to other advice from non-legal advisers.  Accordingly, if a landlord were to take the advice of counsel some months before the expiry of the lease as to his prospects of obtaining planning permission for a redevelopment, his instructions to his solicitor, the solicitor’s instructions to counsel and counsel’s opinion would all be privileged.  However, other advice the same landlord may have obtained in relation to the proposed development, for example from a valuation surveyor as to the viability of the scheme, would not be privileged.  Another head of privilege that may be of relevance in such instances is the head of privilege protecting from disclosure documents which came into existence with the predominant purpose of being used in the preparation of actual or contemplated litigation.  The exact boundaries of this privilege are however ill-defined.  It is thought that it would not normally apply to notes by a building surveyor in the course of his initial inspection of premises with a view to compiling a schedule of dilapidations, but that it would cover his notes made on a subsequent visit for the purposes of pricing a Scott Schedule.  It would not cover a valuation of the demised premises carried out for the purposes of a general valuation of the landlord’s portfolio, even if the valuer took into account the state of repair of the demised premises, but it would cover a report prepared by the same valuer for the purposes of countering the tenant’s contention that there had been no diminution to the landlord’s reversion. 

Interest

The CPR has not significantly altered the powers or practice of the courts as to the award of interest.  The court has power to award simple interest at such rate as the court thinks fit or as may be prescribed on all or ay part of a debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and the date of payment or judgment, whichever is the earlier.    Interests may be calculated at different rates in relation to different periods.  To award interest is not to punish the defendant but to compensate the plaintiff for being kept out of his money.  Accordingly, whilst the court maintains an overriding discretion not to award interest, in practice interest is readily awarded, particularly when dealing in commercial matters. 

In disrepair cases where damages are awarded, interest will normally be awarded from the date on which the cause of action arose until the date of judgment.  This means that interest on damages for failure to yield up in repair will run from the term date of the lease until the date of judgment.  Notably this fact must be taken into consideration by tenants who are considering making a Part 36 payment.  The rate of interest will be within the court’s discretion, but will normally be the rate payable under the Judgment Act on judgment debts, that is prescribed from time to time.  It is also important to note that the court cannot award interest on arrears of contractual interest.

In the case of Johnsey Estates (1990) Limited v Secretary of State for the Environment, Transport and the Regions  the diminution in the value of the reversion was held to be £200,000.  Interest was awarded on that sum from the term date of the lease.  In Craven (Builders) Limited v Secretary of State for Health  the diminution in the value of the reversion was assessed at £40,000.  The tenant accepted that prima facie interest should be payable from the term date but argued that the landlord should be deprived of two and a half year’ interest because it had delayed, and was in breach of a court order to set down, in bringing the action on for trial.  In this instance, Neuberger J. rejected that contention on the principal ground that he was not satisfied that the landlord was substantially to blame or that there had been any unreasonable delay.  He further referred to the fact that if the delay had been after the Civil Procedure Rules had come into force and if he had been satisfied that the delay was not merely failure to obey court orders but was due to the landlord delaying in some way of another, then he would have deprived the landlord of some interest, and he might even have done so even if it had not been established that it was the landlord’s fault.

Interest can only be awarded on money being claimed in proceedings.   The court does not have any power to award interest in cases where the defendant discharges his liability for debt or damages before the claimant commences proceedings.  This is an important fact to bear in mind by tenants who are liable to pay the cost of work carried out by the landlord under a covenant allowing him to enter and carry out remedial work at the tenant’s expense.  If the debt is paid prior to the landlord commencing proceedings, then there will be no liability or interest.  If on the other hand, the debt is paid shortly after proceedings have been issued, then the landlord will be entitled to ask for interest to be awarded in relation to the period beginning on the date when the liability to pay arose.  Where the defendant is an original tenant, the interest may be awarded from the date of the assignee’s default, even though the original tenant was not aware of the default at the time.   However, the court may be persuaded to adopt a more realistic approach and award interest only form the date on which the defendant first became aware of the assignee’s default.

Chapter 3 - The role of the Expert Witness

“The subject of expert witnesses has figured prominently throughout the consultative process. Apart from discovery it was the subject which caused most concern…The need to engage experts was a source of excessive expense, delay and, in some cases, increased complexity through excessive or inappropriate use of experts.”

Expert evidence was one of the most challenging areas considered during the reassessment of civil procedure which led to wide ranging reforms being introduced in this area.  The key, as will be discussed in more detail below, was a re-emphasis on the true duty of the expert to inform the court rather than to justify the position of the party paying his fees.  Furthermore, when the new CPR came into force, there was concern at the concept of the single joint expert, the strong desire to keep expert evidence to a minimum and the requirement to inform the court of expert availability on allocation of the case. 

The CPR have now been operating for a few years, and unsurprisingly expert evidence in general has generated a high level of case law at appellate level.  Case law tends to show that the role and duties of experts is evolving, mainly as a result of the court’s emphasis on proportionality.  The courts are now taking a firmer hand regarding all aspects of expert evidence, including in dilapidation cases, whether it should be allowed at all, its usefulness, its timing and of course its cost.  Expert evidence will only be allowed if it is really necessary and if it is, it should not be used more than is necessary.

The reduced use of expert evidence is, however, not to be perceived as diminishing the value of expert evidence.  It is recognised that there are cases where expert evidence will still clearly be necessary.  Judges cannot be experts in everything.  In those cases, the courts have been careful to warn judges to pay sufficient attention to the expert evidence before them and to give reasons for preferring one expert’s evidence to another’s.

The impact of the CPR on expert evidence can be assessed by reviewing the extent to which some individual rules have been effectively applied since the introduction of the CPR.  These will be discussed in more detail later in this chapter, although a summary of the main points include:

The expert’s duty to the Court and not it’s fee paying client. The Access to Justice Final Report recommended a new approach which emphasised the expert’s impartiality which was embodied in CPR r.35.3.  As May L.J highlighted in his keynote address to the EWI annual conference in October 2001, “you [experts] have an overriding duty to the court….a duty which overrides any obligation to the person from whom you have received instructions or by whom you are paid.  You are not there to engage in a sparring match with your opposite number.”  The courts have actively upheld this duty by criticising expert witnesses where they have shown signs of partiality.

Initially, there were concerns that this duty would entail the appointment of “shadow” experts with whom a party could discuss the full merits of his case without concern that those discussions could be stripped of privilege.  This does not seem to have materialised before the courts although anecdotal evidence suggests it is happening to a certain extent behind the scenes.

CPR r.35.7 introduced the concept of the single joint expert.  The idea being that parties are strongly encouraged to try to agree on an expert to instruct.  Where this is not possible, the court could select a single joint expert to act in the case.  This was not however, initially welcomed.  One of the strong concerns in this area was that costs would spiral as a result of the need in complex cases to appoint experts for each party as well as the single joint experts, the costs of which would be irrecoverable.

In fact, the concept of the single joint expert has been creatively adapted to suit different matters and courts.  The courts have in this context recognised that, whilst taking into account the possibility of appointing a single joint expert, there are many multi-track cases which, by virtue of their complexity and the sums at state, will still warrant each party having its own experts.

The courts have furthermore enthusiastically taken up the spirit of written questions to experts provided for by CPR r.35.6, whereby a party may put to the other side’s expert or a single joint expert, written questions about his report.  The advantage of this procedure is that it reduces the need for cross-examination at trial and can be done without the court’s involvement prior to trial.  Notably this is an area of the new procedure which is as yet still underused.

The expert witness in dilapidation cases

The opinion of a properly qualified expert on an issue within his or her field of expertise can often give a judge invaluable help in finding a sound answer to problems arising in the course of litigation.  But like all procedural tools expert opinion evidence, invaluable if properly used  can be improperly used and then it can disfigure the litigious process by causing delay, unnecessary expense and contamination of what should be independent and objective expert opinion by considerations of partisan advantage. 

An important aim of the CPR is to curb the abuses to which misuse of expert evidence has given rise in the past while ensuring that the courts continue to enjoy the help which such evidence alone can give.  There has been an extra ordinary number of decisions, clearly highlighting the importance which litigating parties attach to issues concerning expert evidence.  Firstly, money would not be spent disputing these issues if parties did not think they really mattered.  But secondly, the decisions of the courts show that the new rules are making a demonstrable impact on practices and habits of thought which were once tolerated but no longer are.  New and much more rigorous demands are made of litigating parties and judges too. 

Expert Witness are the only type of witnesses who are allowed to give opinion evidence when it comes to matters for a court to decide (all other witnesses are only entitled to give evidence of fact).  Permission from the court would be required prior to the calling of or submission of any expert evidence  and any application for permission must identify the field of the expertise of the expert to be relied upon and (if practicable) identify the expert.  Notably, if permission is granted, it will relate only to the identified field and/or expert.  It is normal procedure for the expert to provide his or her evidence by way of written report and except in a fast-track case, the expert will under normal circumstances be directed to attend the hearing.

The court will use its case management powers to provide the appropriate directions under the CPR in relation to expert witness, but may also give directions in response to an application made by either party to the proceedings.  Part 35 of the CPR provides detailed provisions in relation to experts and assessors that are expanded upon in the Practice Direction supplementing Part 35.  The purpose of Part 35 is made clear by the following note which appears at the start of the Practice Direction,

“Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required.  In addition, where possible, matters requiring expert evidence should be dealt with by a single expert.  Permission of the court is always required either to call an expert or to put an expert’s report in evidence.”

The case of Field v Leeds City Council  provides an interesting insight to the requirements the courts generally make prior to the appointment of an expert witness. In this case the county court judge refused permission to the defendant council who wished to call, as an expert witness one of its employees, who had, as a member for ten years of the claims investigation section, been involved in looking into disrepair matters for the council.  The Court of Appeal held that in principle, there was no objection to a person who is employed by one of the parties being called as an expert witness by that party, so long as he was properly qualified.  The court noted however, that it was important that such a person should have full knowledge of the requirements for an expert to give evidence in court and that he should be fully familiar with the need for objectivity. 

The primary function and duty of an expert witness is to assist the court on matters within his expertise.  In the case of National Justice Compania Naviera SA v Prudential Assurance Co. Limited  Cresswell J set out seven propositions that are relevant to the performance by expert witnesses of this duty.  These have been quoted in textbooks and reported judgements over the years and have now largely been subsumed in the relevant provisions of the CPR. The Royal Institution of Chartered Surveyors further published a Practice Statement and Guidance Notes for Surveyors Acting as Expert Witnesses .  This statement had three particularly prominent features.  Firstly members of RICS who accepted an appointment to act as expert witness were required to draw to the attention of their lay clients, at the time the instructions were accepted, that the Practice Statement applied.  Secondly, compliance with the Practice Statement was made a requirement of professional conduct for members of the RICS in performing the function of an expert witness, so that a failure to comply would amount to a disciplinary offence. Thirdly, it required a member, in the body of any expert report which he compiled in the capacity of a witness, to set out his duties under the Practice Statement and to confirm that he had complied with them.  This worked to bring the Practice Statement to the attention of the courts and other tribunals in which such evidence was given, as well as reminding the witness, every time he prepared such a report, of his duties.

Similarly, the provisions incorporated in CPR r.35.10(1) now emphasise that the primary duty of the expert witness is to the court an not to his or her client, and require an expert’s report to comply with the requirements set out in any relevant Practice Direction. 

The Practice Direction Experts and Assessors sets out detailed provisions to regulate the form and content of expert’s reports.  In particular, it requires any such report to be verified by a statement of truth confirming the expert believes the facts stated in his report to be true and that his or her opinions are correct.  Furthermore, CPR r.35.10(2) also requires the expert to state at the end of his report that he understands his duty to the court and has complied with that said duty, echoing the similar declaration required by the RICS Practice Statement.

All reports are to state the substance of all material instructions, whether written or oral, on the basis of which the report was written.   Furthermore, the instructions provided are not to be privileged against disclosure.   Notably it is also provided that the court will not order disclosure of any specific document or allow any questioning in court by the other party in relation to those instructions, unless the court has reasonable grounds to consider that the statement of the substance of the instructions is inaccurate or incomplete. 

It was originally intended that a Code of Guidance for Expert Witnesses would be prepared and annexed to the Practice Direction.  However, aster a long delay at the time when the CPR were being prepared, the Master of the Rolls authorised in 2001, the publication of the “Code of Guidance on Expert Evidence:  A Guide for experts and those instructing them for the purpose of court proceedings.”  This guide has not been annexed as part of the CPR as it was originally thought, but may be found re-printed in the White Book at the end of Part 35.

Single joint experts

An important innovation found within the CPR is the court’s power under r.35.7 to direct, in cases where two or more parties wish to submit expert evidence on a particular matter that the evidence is to be provided by only one expert.  Parties who wish to submit expert evidence are referred to as “the instructing parties”.  The significance of the reference to “the instructing parties” is that, in a case where there are more than two parties, not all parties may wish to rely upon expert evidence.  Those parties which do not wish to do so, are not required to instruct the joint expert and may challenge his evidence in the same way as they could challenge any other expert evidence put before the court, but they will not, of course, have any expert evidence f their own upon which they can rely.  The instructing parties may agree the identity of the single joint expert although in instances where they cannot agree, the court may select an expert from a pre-prepared list prepared by the instructing parties or direct that the expert be selected in some other manner.  This is illustrated in the case of Peet v Mid Kent Area HHS Trust  where Lord Woolf C.J stated, “as we will see when we come to the framework which is provided by the Civil Procedure Rules, the Rules permit the Court to require the parties to use a single expert.  This is not a matter of choice for the parties.  In the absence of special circumstances I consider that the appropriate way that the power should be exercised is to require a single expert rather than an expert for each party.  It is only by so doing that control can be exercised over the costs involved…In relation to Part 35.7  I would emphasise  that the power of the court to direct that the evidence be given by a single joint expert is unrestricted.  The court has a wide discretion and that discretion has to be used in order to further the overriding principles set out in Part 1 of CPR.”

Making reference to the framework as provided by the Rules, Lord Woolf  stressed that the said rules were designed to provide a flexible framework, and that there would always be cases wherein special treatment is required due to the particular issues that arise thereunder.  Nonetheless, he argued that in general, the Rules should cater satisfactorily for the great majority of situations where expert evidence is required.

Where a direction for a single joint expert has been made, r.35.8 allows each instructing party to give instructions to the expert, a copy of which must be sent to the other instructing parties.  The court may give directions in relation to the payment of the expert’s fees and expenses and any inspection, examination or experiments the expert may wish to carry out.  Furthermore, the court may also limit the amount that can be paid by way of fees and expenses to the expert, prior to the instruction of the latter, and order the instructing parties to pay that amount into court.  Importantly, unless the court directs otherwise, the instructing parties will be jointly and severally liable for the payment of the expert’s fees and expenses.

Paragraph 5 of Practice Statement Experts and Assessors, provides that in instances where the court has made a direction for a single joint expert but there are a number of disciplines relevant to the particular issue, a “leading expert in the dominant discipline” should be identified as the single expert and should prepare the general part of the report and be responsible for annexing or incorporating the contents of any reports from experts in other disciplines.  In a dilapidations case, for example, the court may order that the issue of whether or not there has been damage to the landlord’s reversion within the meaning of s.18 of the Landlord and Tenant Act 1927 and of the amount of any such diminution should be the subject of a report by a single expert and a valuation surveyor might be designated as the “leading expert”, who would then in turn rely upon the opinion of, for example, an expert as to market conditions prevailing at the relevant time.  Similarly, if the court had directed that a single building surveyor should present evidence as to what remedial works were required so as to comply with the repairing obligations of the lease, he might be designated as the “leading expert” who would incorporate in his report the findings of various specialists dealing with mechanical and electrical services, lifts and the electrical installations in the building.  

The CPR and Practice Directions do not provide explicit guidance as to what is to happen one the single joint expert has reported.  It has been left to a number of decided cases to clarify the procedures.  In Peet v Mid Kent Area Healthcare NHS Trust  Lord Woolf quoted a passage from the White Book which stated, “If a single joint expert is called to give oral evidence at trial it is submitted, although the rule and the Practice Direction do not make this clear, that both parties will have the opportunity to cross-examine him or her, but with a degree of restraint given that the expert has been instructed by the parties.”  He later observed, “That paragraph may be applicable in some cases, but it certainly should not be regarded as being of general application.  I summarise my reasons for so saying.  The starting point is:  unless there is reason for not having a single expert, there should only be a single expert.  If there is no reason which justifies more evidence that that from a single expert on any particular topic, then again in the normal way the report prepared by the single expert should be the evidence in the case on the issues covered by the expert’s report.  In the normal way, therefore, there should be no need for that report to be amplified or tested by cross-examination.  If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen.  The court may permit that to happen either prior to the hearing or at the hearing.  But the assumption should be that the single joint expert’s report is the evidence.  Any amplification or cross-examination should be restricted as far as possible.  Equally, where the parties agree that there should be a single joint expert, and a single joint expert produces a report, it is possible for the court to permit a party to instruct his or her own expert and for the expert to be called at the hearing.  However, there must be good reason for that course to be adopted….if there is an issue which requires cross-examination, or requires additional evidence, that is one thing.  But the court should seek to avoid that situation arising, otherwise the objectives of having a single expert will in many situations be defeated.”

The Court of Appeal in the case of Popek v National Westminster Bank Plc  applied the above decision, where the court upheld a decision by the judge to strike out a claim, where the single joint expert’s report showed that there had been no breach of duty on the part of the defendant.  It was held that the judge had not been in error in depriving the claimant of the opportunity of putting his version of facts to the expert by way of cross examination.  In that case however, it is to be noted that the claimant had not taken the opportunity at an earlier stage to put his disputed version in questions to the single joint expert.

This approach contrasts with that held in the case of Layland v Fairview New Homes Plc.   In this case, a valuer had been appointed as a single joint expert, so as to assess the amount of diminution in the value of a flat the claimants claimed had suffered as a result of the grant of planning permission to build an incinerator and power plant close by.  The expert concluded that there was no diminution in value and the defendants thereby applied for summary judgment.  Neuberger J held that in order to resist summary judgment dismissing the claim under Part 24, the claimants had to establish that they had a real prospect of successfully challenging the single joint expert’s conclusion.  Provided there was a prospect of the expert through cross-examination, or the court, through submissions, being persuaded to a different conclusion than that supported by the single joint expert’s report, the claim could not be dismissed on the basis of the expert’s view.  In light of the fact there were some points which could be put to the expert and accepted by him or by the court and since the court could not properly reject those points without hearing how the single joint expert dealt with them, it would not be right to grant summary judgment dismissing the claim.  Despite the fact the claimants’ case on diminution seemed weak and speculative and even if successful was not likely to result in a large award, it could not fairly be said to stand no realistic chance of success.

In the case of Pattison v Cosgrove  a single joint expert was appointed in a boundary dispute to report on various issues including the position of the boundary and whether some excavation works had undermined certain structures.  Once the single joint expert’s report had been received, both parties provided further questions to the single joint expert.  Subsequently one of the parties applied to the court for permission to call another expert and this was refused.  The application was however, allowed on appeal where Neuberger J stated,  “although it would be wrong to pretend that this is an exhaustive list, the factors to be taken into account when considering an application to permit a further expert to be called are these.  First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly the reason the new expert is wanted; fourthly, the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application; seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any other special features of the case; and, finally and in a sense all embracing, the overall justice to the parties in the context of the litigation.” 

Single joint experts are not appointed by the court so as to advise it or to present evidence to it.  Accordingly, the report produced by the expert witness is evidence available to each of the instructing parties, which that party may or may not decide to put in as evidence.  The party who puts in the evidence would then be bound by it and could not dispute it by, for example, cross-examining the single joint expert.  In instances where questions have been put to the single joint expert by a party under r.35.6, the expert’s answers will be treated as part of his report by virtue of r.35.6(3). 

It is therefore likely that, in a typical case, where there has been a direction for a single joint expert, the report will consist of the expert’s original report together with answers to such questions as the parties have chosen to put to him.  If one of the instructing parties is entirely content with the result of this process, he will put the report in evidence and make it part of his case.  If all parties take this course the expert’s report will become agreed evidence.   However, if one of the instructing parties in not happy with the report of the single joint expert (including relies to any questions which that party has submitted) that party may decide not to put the report in evidence.  In this case however, the instructing party may be faced with a problem in that he has no evidence of his own on this particular issue, unless he is able to persuade the court that, notwithstanding the fact that a direction for a single joint expert has been made, it would be appropriate for him to have permission to instruct his own expert dealing with that particular issue.  A party that has not put the report of the single joint expert in evidence as part of his case (irrelevant of whether it is one of the “instructing parties”) appears to be entitled to require the single joint expert to give evidence, and to cross-examine him.  Despite the fact that party may have the benefit of advice from his own expert in the relevant discipline on that particular issue, which could form the basis for cross-examination, that expert could not be called (unless the court has given permission).

It remains unclear how often the court will make a direction for a single joint expert in dilapidations cases, whether such experts will be directed on issues of what breaches exist, what remedial work is required, what the proper pricing of the work is, what damage (if any) has been caused by the landlord’s reversion, or in relation to all those issues.  It seems unlikely that joint experts will be frequently appointed in dilapidations claims, at least in major claims in the Technology and Construction Court.

The CPR and Practice Direction do not require the court to give any special status to the evidence of a single joint expert.  In practice, the opinion of a single joint expert, who has been chosen by more than one party (or by some process directed by the court), instructed by those parties and having been subjected to questioning by those parties, is likely to be considered by the court as being especially authoritative, quite apart from the fact, in most cases where a joint expert has been appointed, there will be no other expert evidence on that particular issue. 

Written questions to experts

Posing written questions to experts is regulated by CPR, r.35.6, which allows for each party to put to an expert instructed by another party or to a single joint expert written questions in relation to his report.  These questions must be made only once.  They must be made within 28 days of service of the expert’s report and must only be for the purpose of clarifying the report (unless the court grants permission or the other party agrees).

Importantly, the answers to any of the questions posed, become part of the evidence of the expert who has provided the answers, meaning they become part of the evidence that is being relied upon by the party who has instructed the expert.  Significantly, the party who has asked the question can (if the answer provided by the expert supports their case) accept that part of the evidence, but also retains the right (in instances where the answers do not support their case) to cross-examine the expert upon it and to call evidence to contradict or undermine the answer given (notably this may only be done to the extent that the directions given allow). 

It therefore seems as though the right to ask questions can usefully be used both (a) to obtain the expert’s confirmation that he accepts certain points upon which the questioning party wishes to rely but also (b) to expose for cross-examination a view of the expert which is thought to be vulnerable to attack.  The power to put such questions may also draw out useful background material, including whether there are any particular matters upon which the expert has relied in order to support particular conclusions already stated in his report. 

It is important to note, that for tactical reasons, the party who puts the questions to the expert, will have to consider to what extent the points which might be raised can be more effectively dealt with in cross-examination and to what extent they wish the other party’s expert to set out in advance of cross-examination his answer to their question.

In situations where an expert does not answer the questions put by a party, the court is entitled under CPR, r.35.6(4) to order that the party who instructed the expert may not rely upon his evidence and/or that the party may not recover the fees and expenses of that expert from any other party.

Discussions between experts

By virtue of CPR, r.35.12, the court may at any stage of the proceedings, direct the experts to enter into a discussion for the purpose of requiring them to firstly identify the issues and secondly, where possible, to reach an agreement on an issue.  This is a similar power to that previously conferred on the court by RSC O.38, r.38 and accords with the practice that has evolved in the Official Referees’ courts.  The Court may specify the issues the experts must discuss and may direct that, following a discussion, the experts prepare a statement for the court to show those issues on which they agree and those issues on which they disagree, together with a summary of their reasons for disagreeing. 

Despite the fact the previous RSC O.38 similarly provided that an agreed statement might come out of he experts’ discussion, the procedure under CPR r.35 is more prescriptive, and conforms to the principle that the experts’ overriding duty is to the court.  The case of Robin Ellis Limited v Malwright Limited  decided under the former Rules of the Supreme Court illustrates this point.  In this instance, the Official Referee, Judge Bowser Q.C highlighted the fact that it was not for the parties to tell the experts what opinions they were allowed to hold, and that the duty owed to the court by the experts was to express in their agreement the views which they themselves honestly held.

Previously, the procedures allowing experts to meet have shown themselves to be useful and the new rule should continue to do so.  Experts will sometimes be in a position where they are able to reach an agreement to such an extent that their attendance at trial can be dispensed with.  This is illustrated in instances where the respective building surveyors may be able to agree on what work should have been done and what it would have cost, leaving the question of damage to the reversion as the only live issue at trial.  Even in cases where complete agreement on a substantive issue is not possible, the experts will often be in a position to reach agreement in relation to matters which would otherwise take up time at trial.  For example, valuers should in most cases be able to agree on matters such as floor areas and the details of their respective comparables, and building surveyors who differ on what work is required should nonetheless be able to agree on the cost of the work for which each contends.

Furthermore, in echoing the previous provision to the effect that the meeting between experts should be on a “without prejudice” basis, CPR, r.35.12(4) provides that the content of the discussions between experts shall not be referred to at the trial unless the parties agree to this.

Whist discussing, experts are to make a proper attempt to identify and narrow the issues on which they differ.  Importantly, if an expert is persuaded by his opposite number that his view on a particular issue is wrong, he will not be able to write a report expressing his original view and ought to instead agree that matter in the statement for the court.  Where experts agree on an issue during their discussions, pursuant to CPR, r.35.12(5), the agreement shall not be binding on the parties unless the parties expressly agree to be bound by the agreement.  This does not however, release the expert from his duty to the court as to the truthfulness of his evidence which means that in practice, where an expert has reached agreement with his opposite number the party instructing him will normally have no option but to agree its inclusion in the statement. 

The rule clearly envisages an attempt in good faith by both experts to discuss the issues, to narrow the differences between them, and to record what common ground exists.  For example, an expert would not be complying with the rule if he or she attended discussions and informed the opposite number that he or she has no instructions to discuss anything but is prepared to listen to what is said.  In the same manner, a discussion meeting should not be utilised to discuss settlement of the action since there will then be a danger that the expert will confuse his duty to the court with his duty to his client to obtain the best possible settlement.

The court has the power to direct discussions at any stage of the proceedings, although the most advantageous time for such discussions will normally be before reports are exchanged so as to allow for the reports to be written on the basis of the areas of agreement and disagreement identified at the meeting.  Sometimes, a further meeting after exchange of reports may be useful if the result of exchange is further to clarify the nature of the matters in difference. 

Content of experts’ reports

The Practice Direction to rule 35  requires that the report should be addressed to the court and not to the party from whom the expert has received his instructions.  Furthermore, the report should give details of the expert’s qualifications, as well as details of any literature or other material the expert has relied on in making the report.  In accordance with CPR, r.35.12 and as referred to previously in this essay, there should also be the inclusion of an appropriate statement of truth in the body of the expert’s report.  Paragraph 1.2(5) provides that, where “there is a range of opinion on the matters dealt with in the report”, the report should summarise the range of opinion, and give reason for the expert’s own opinion.  This appears to be addressed to issues of practice or principle on which there is a known and acknowledged range of opinion between experts in the field.  It does not mean that on every occasion on which an expert things that another expert might disagree with him on a particular point, he is required to say so and go on to say what view that other expert might hold. 

Subject to these particular provisions, the contents of an expert’s report varies from case to case.  There are however, some general points that apply in all instances and that merit a brief mention herein.  Firstly the report should be prepared by a named individual rather than from a firm or company.  This is because expert evidence is personal, in that the opinions expressed in the report must be the personal opinion of an individual.  After all it may be that that particular individual is later called upon to give oral evidence and be cross-examined on his evidence.  Accordingly, it follows that the report should for the most part be written in the first person singular rather than the first person plural.

Secondly, the report must demonstrate the witnesses’ credentials to be considered an expert and, in order to explain the nature of his particular field of expertise, the report should contain a statement not merely of his formal qualifications but also something about his career and the nature of his practical experience.

Thirdly, in dilapidations cases, the expert’s evidence will almost always be based on what he has observed on inspecting the premises, as well as other matters.  Accordingly, the expert should give the dates of those inspections and, where appropriate, also explain the reason for his visit.

Fourthly, in some instances, the expert may wish to make particular points about the physical nature of the subject-mater of his inspection.  He will have to decide whether the best means of conveying this to the court is by a verbal description or by reference to location plans, or photographs or a combination of some or all of these.

Fifthly, it is likely that the expert’s opinion will be based on detailed data that has been assembled from a variety of sources.  So that the court may understand this, the rule upon the admissibility of some parts of the evidence if necessary, it should be made clear in the body of the report what is the source and nature of the information that is being relied upon.  Sometimes the expert will simply be setting out or referring to something of which he has first-had knowledge, such as a schedule of dilapidations referred to by the building surveyor who drew it up.  Sometimes the expert will be referring to information of a factual nature supplied by third parties.  An example of this is the fact the expert valuer may refer to details of comparable transactions supplied to him by other agents.  Sometimes the data will e of a more generalised nature, such as statistical surveys, analyses of market trends or indices of building costs.

Finally, after having demonstrated the material, factual and otherwise, upon which his evidence is based, the expert should clearly set out the conclusions that have been reached.  The expert must set out in as much detail as he considers appropriate the method and line of reasoning which has led him to his conclusions. 

Whilst writing his report, the expert must bear in mind that he is required to be objective and he must express his honest opinion.  Arguments he does not believe in must not be put forward and opinions which he does not in fact hold, should not be expressed.  In instances where there is a point that can fairly be made against him, he should acknowledge it and explain why it does not cause him to change his views.  In all, he should aim for a balanced and fair assessment of the subject matter in his report.

Human Rights and the Expert Witness

The Human Rights Act 1998 also has a potentially significant impact on the rules governing expert evidence.  Firstly, under CPR r.35.4, the court has total control over the use of expert evidence and should limit such evidence to that which is necessary to resolve the proceedings justly.  This power lends itself to allegations that Article 6 of the European Convention on Human Rights has been breached, in that evidential restrictions have denied a party a fair trial.

Secondly, it may be argued that the appointment of a single joint expert is an infringement of parties’ rights to a fair trial, although this has yet to be tested.  Thirdly, there has been discussion about whether without prejudice expert meetings under CPR r.35.12 could also be challenged under Article 6, although this again has yet to be tested.  It is perhaps surprising that more challenges have not been made to Part 35 on the basis of Article 6.  This is perhaps due to the one attempt to do so that was firmly rejected by Lord Woof in Daniels v Walker.   In this case, the issue before the Court of Appeal was of some significance as to the approach which judges should adopt when a single joint expert has been instructed and where one side is unhappy with that report.  The facts arose from an accident in which the claimant was involved as a child.  The single issue before the Court of Appeal was the nature of the care which the claimant would require in the future.  On receipt of the report from the joint expert, the defendant was concerned at the extent of the care regime recommended by the expert and sought to obtain a further care report from another expert.  The appellants advanced two separate arguments before the Court of Appeal, firstly they raised an argument based on the CPR and secondly they raised an argument based on the Human Rights Act 1998 and the European Convention on Human Rights (albeit that the 1998 Act was not in force at the relevant time).

As to the CPR argument, the court referred to the overriding objective of the CPR r.35.1 (which places a duty on the court to restrict expert evidence) and CPR r.35.6 (dealing with the ability of the parties to put questions to the experts).  The court also referred to CPR r.35.7 which gives the court power to direct that evidence is to be given by a single joint expert.  Having considered the relevant rules, the Court of Appeal said that the fact that a party has agreed to instruct a joint expert does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.  The Court of Appeal added that in substantial cases, such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue.  The court added that it is to be hoped that in the majority of cases it will not only be the first step but the last step.  However, if having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or possibly the whole) of the expert’s report which he or she should, subject to the discretion of the court, be permitted to obtain that evidence.

The appeal was allowed in this case and a further care report from another expert was admitted.  However, the Court of Appeal noted that this would not be the case where it is suggested that the claimant would be unduly distressed, or anything of that nature, by the additional examination.

As to the Human Rights arguments, the defendant argued that having regard to the provisions of Article 6 of the European Convention on Human Rights, a refusal of the defendant’s wish to instruct a second expert would conflict with Article 6 because it amounted either to baring the whole claim of the defendant or barring an essential part of that claim.

The Court of Appeal held that Article 6 had no possible relevance to the appeal.  The court said that, even if the Act had been in force, it would be highly undesirable if the consideration of case management issues was made more complex by the injection into them of Article 6 style arguments.  The Court of Appeal said that it hoped that judges would be robust in resisting any attempt to introduce such arguments.

It seems that the biggest impact the 1998 Act has had on expert witnesses is in relation to the bias issues. These occur where there is reason to believe that an expert may be biased towards one party and the result of successful allegations could be that evidence is excluded, or given less weight.  This may in some instances apply to dilapidation matters generally, and is likely to damage a party’s case.  Accordingly, steps should be taken in all cases to avoid any hint of bias.

Chapter 4 – Alternative Dispute Resolution and Dilapidation claims

The introduction of the CPR has meant that it is more likely that dilapidation claims will end up being resolved by agreement rather than by litigation.  It is therefore important at this stage, to consider the options available to those who wish to resolve dilapidation disputes without entering into litigation.

Arbitration

The first alternative to be considered is that of arbitration.  Arbitration is based on the agreement of the parties and unlike litigation, has limited intervention by the state.   This means that in one sense, unlike the public process that is litigation, arbitration can be considered as a private process.  Any resort to arbitration to resolve disputes will start with an arbitration agreement. 

In dilapidation cases, such an agreement may be found in a clause in the lease that gives either party the right to refer to arbitration if any disputes arise under the lease.  However, such clauses are, in practice rarely to be found in leases in a form wide enough to embrace the typical dilapidations dispute (as opposed to a more limited arbitration clause aimed at a particular subject-matter such as service charges, where arbitration clauses are somewhat more common, or rent review, where provision for arbitration by a surveyor is widespread).  Accordingly, in the absence of such a clause, arbitration will only be possible if the parties agree that for the purposes of their immediate dispute, it is to be referred to arbitration.  If the agreement is in writing, as required by s.5 of the 1996 Act, it will be enforceable by either party, and if the other party seeks to resort to litigation instead, a stay can be obtained from the court under s.9 of the 1996 Act.

The person chosen as the arbitrator should be qualified to understand the issues that arise in the particular disputed referred to him.  It is not normal procedure for an arbitration clause in a lease to provide for a named individual arbitrator.  Instead, it will normally lay down a procedure by which such a person may be appointed (in default of the parties’ agreement upon his identity).  In a clause in a lease that is specifically aimed at dilapidations disputes, the President of the Royal Institution of Chartered Surveyors or of the Law Society is likely to be named as the person to make appointments.  If however, there are no appointment procedures outlined within the lease, or of for some reason those that are set out fail to operate, the 1996 Act provides a “fall back” appointment procedure.  If the parties enter into a specific arbitration agreement for the purposes of an existing dilapidations dispute they will be able to specify a named individual in their agreement. Alternatively, they may invoke the appointment procedures of the RICS or the Law Society or some other appointing institution or rely upon appointment by the court. 

It is always preferable to obtain an appointment by specific agreement, as this would give the parties the maximum control over the identity of the person who is to decide their dispute.  Once an arbitrator has been appointed, he or she will give directions for a speedy and cost effective resolution of the dispute under s.34 of the 1996 Act.  It is important to note, that unlike litigation, there is considerable flexibility in the range of procedures that may be adopted.  For example the arbitration may be conducted wholly in writing or there may be an oral hearing.  Furthermore, the arbitrator may be given power to take the initiative in ascertaining the facts and the law.  The strict rules of evidence may or may not apply and under s.37, the arbitrator may appoint a legal or other assessor to assist him.

Procedural matters may be agreed between the parties.  If they are unable to do so, these may be determined by the arbitrator in accordance with hi general duty under s.33 to act fairly and impartially between the parties, allowing each party a reasonable opportunity to put forward his case and dealing with that of his opponent, and adopting procedures suitable t the circumstances of the particular case, avoiding unnecessary delay and expense, so as to provide a fair means for the resolution of the matter falling to be determined.  This may resemble a superficial resemblance to litigation procedures under the CPR, but the important difference is that the parties control most aspects of arbitration proceedings (except where there is disagreement, in which case the arbitrator decides) while under the CPR the court’s case management powers override the wishes of the parties as to how the proceedings should progress.

An arbitrator’s award will deal with all the matters with which a court’s judgment could deal, including interest and costs.  It is enforceable in the same way as a court judgment and unless the parties agree otherwise, will contain reasons for the decision.

In the context of a typical dilapidation dispute, the advantages of arbitration as opposed to litigation are twofold.  Firstly the right to choose a specific person to decide the dispute enables the parties to have the matters resolved by a person from a relevant discipline who is not necessarily a lawyer and who may be thought for some particular reason to be a more suitable tribunal than a judge.  Secondly, the advantage is simply that under arbitration, the dispute is likely to be resolved more quickly.  The reason for this is not due to the fact the arbitrator is, in general terms, at the parties’ disposal, whereas a judge has public duties towards other litigants resulting in a comparable case in court being unlikely to be tried within the timescale which could be achieved at arbitration.

Arbitration may also provide a more flexible range of procedures, especially the possibility of avoiding an oral hearing.  Having said that, the improved procedures brought in by the CPR, allied to the special techniques evolved by the Technology and Construction Court, make the difference between the relevant procedures less marked in dilapidation dispute instances, than in other litigation.

A disadvantage of arbitration is also that the parties will be put to the additional cost of paying the arbitrator’s fee, as well as any assessors whom he may appoint.  In a dilapidations case, where the complexity of the issues may sometimes require a lot of time to be devoted by the arbitrator and assessor, the additional costs may be quite considerable.  Furthermore, in cases where a lengthy hearing is involved, the costs of hiring a suitable venue must also be borne in mind.  Notably in such instances as those described, court fees payable in respect of a comparable dispute being resolved by litigation are relatively insignificant.

Expert determination

A second process by which litigation in dilapidation cases may be avoided is that of expert determination.  Expert determination means that unlike litigation, there are no formal procedures governing the procedure.  Furthermore, an expert essentially decides the matter referred to him according to his own knowledge and experience and not the evidence put before him by the parties.

Expert determination may be less suitable than arbitration in dilapidation cases where substantial issues and sums of money are involved.  This is because such a dispute will inevitably be so complex that it cannot generally be safely entrusted to the decision of a third party without the benefit of hearing and weighing and adjudicating upon the various points put by the opposing parties.  On the other hand, expert determination may be well suited to disputes where the issues are straight forward or where the sums at stake are low or of particular issues which the parties cannot agree and the resolution of which is likely to facilitate an overall settlement of the entire claim.  The Dispute Resolution Service of the Royal Institution of Chartered Surveyors is launching a scheme to facilitate determination of dilapidations disputes by a Chartered Surveyor appointed either as an arbitrator or as an expert, depending upon whichever the parties think is most appropriate in their particular instance.  In appropriate cases, this will be a speedy and cost effective alternative to litigation either for entire dilapidation disputes or for particular issues which the parties cannot agree.

Mediation

A third alternative process to be considered is that of mediation.  CPR Part 26 and the Practice Direction on Case Management make provision for a stay of proceedings to allow for settlement of the case.  Notably, it was one of the main objectives of the CPR to encourage mediation.  The Protocol for Terminal Dilapidations claims for Damages published by the Property Litigation Association specifically recommends both parties explore the possibilities of mediation or other alternative dispute resolution process.

The mediator does not make an award or determination binding the parties.  Instead his role is purely to facilitate the settlement by the parties of their dispute and if mediation is successful, it will result in a compromise between the parties that is legally binding upon them in the same was as contract.  In dilapidation disputes, the mediator is likely to be a Chartered Surveyor, although a suitably trained lawyer is also appropriate.

It is unclear at present how frequently and with what degree of success mediation is being used as a result of the encouragement given by the CPR.  Mediation seems well suited to the sorts of issues arising out of dilapidation claims as they are usually a number of interlocking issues as well as a number of disputed points which are of commercial importance to the parties but which are not necessarily susceptible to resolution through the ordinary litigation process. 

Early Neutral Evaluation

A fourth and final alternative is that of Early Neutral Evaluation.  Early Neutral Evaluation is referred to both in the Admiralty & Commercial Courts Guide, and in dilapidation matters in the Technology and Construction Court Guide.  What is envisaged in the Commercial Court, is a discussion between the advocates and a judge, from which it appears to them that and Early Neutral Evaluation is “likely to assist in the resolution of the dispute or of particular issues”, in which case it will, if both parties agree, be referred to a judge who is to provide a “without prejudice non-binding early neutral evaluation”.  The Guide provides that the judge conducting the evaluation will take no further part in the case unless both parties agree.  Similar procedures are set out in paragraph 6.5 of the Technology and Construction Court Guide.

The intention of this process is to allow both parties to learn what are the strengths and weaknesses of their respective arguments and to see the reaction of a judge of the court which will try the dispute if it does in fact go to court.  It is hoped this process will help the parties narrow the issues, or focus their arguments, or to accept that the result of a full trial is not likely to be much different from that indicated by the evaluation, and to compromise their differences accordingly.  It is not thought that this particular alternative dispute resolution procedure has to date been much used in dilapidations claims, but the procedure would seem to be one which, in principle, might be usefully applied in such cases. 

Conclusion

So have the changes brought in by the CPR been effective?  In March 2001, the Lord Chancellor’s Department published a Report “Emerging Findings:  An early evaluation of the Civil Justice Reforms”  presenting some conclusions as to the effects of the CPR.  The report evaluates whether certain goals of the new procedures have been met, for example, the goals that litigation will be avoided wherever possible, will be less adversarial and less complex and more co-operative, and that parties of limited financial means will be able to conduct litigation on a more equal footing.

The key findings were as follows:

1. Overall, there has been a drop in the number of claims issued, in particular in the types of claims where the CPR have been introduced
2. Anecdotal evidence suggests pre-action protocols are working well to promote settlement before issue and reducing the number of ill-founded claims
3. There is evidence showing that settlements at the door of the court are now fewer and that settlements before the hearing day have increased.  Part 36 has been welcomed by all interested groups as a means of resolving claims more quickly.  Despite the fact offers to settle can be made at any time during proceedings, there is a widespread belief that they are used in the early stages of a claim so that a trial may be avoided.
4. The number of cases using Alternative Dispute Resolution has increased, suggesting that since the introduction of the Civil Procedure Rules, parties are more likely to try alternative means of settling claims.
5. The use of single joint experts seems to have worked without problems.   It is likely that their use has contributed to a less adversarial culture, earlier settlement and may have cut costs.
6. Case Management Conferences are a key factor in making litigation less complex, and appear to have been a success.
7. The time between issue and hearing for those cases that go to trial has fallen.  The time between issue and hearing for small claims has risen since the introduction of the Civil Procedure Rules
8. The number of appeals in the course of proceedings appears to have fallen sharply.  A definitive view on costs is however, difficult to establish.  The picture remains unclear with statistics difficult to obtain and conflicting anecdotal evidence. 
9. The views of litigants in person are difficult to obtain in light of the fact they tend to use the system only once.  Whilst research is being undertaken to assess their views, anecdotally it appears that the courts are providing the assistance required.
10. Sources external to the Lord Chancellor’s Department show that, with one or two exceptions, the civil justice reforms have been well received overall.

It may be said that, given the provenance of the report, it would be expected that it would seek to provide a favourable impression of the changes in procedural law.  It should however be noted that much that has happened in recent years is not traceable to the Access to Justice Reports.  As a longitudinal study, the report is long on anecdote and short on robust evidence (largely because evidence of the performance of the civil justice system prior to the CPR coming into effect is slender).  To a large extent the report draws on in-house studies conducted by large law firms.

In some respects, the report understates the success of certain aspects of the new rules and, in others, overstates the success.  Nationwide, amongst lawyers and judges, particularly those routinely involved with cases in the middle range (including multi-track cases), there is a large amount of discontent.  The criticism is not directed at the objectives of the new civil justice system, but rather at a perceived lack of resources sufficient to make the system work properly.  Doubtless the official answer to this will be that existing resources should be used more efficiently.

The use of resources is at the centre of the Lord Chancellor’s Department Consultation Paper on “Modernising the Civil Courts” published in 2001.  This paper claims to indicate how the Court Service “will become a modern customer-focused organisation, providing excellent services, by the effective use of technology and through significant re-organisation.” The key components of this new vision which the Court Service has for its future fore are said to be a new way of managing the civil justice system, new ways of serving our customers, and a new way of handling cases and supporting our judges and staff.  To an extent, the Modernising the Civil Courts Programme is a response to the recommendations made by Lord Woolf in his Reports as to the crucial role of information technology in implementing the civil justice reforms he proposed.  Those concerned with the lack of resources presently available to the civil justice system will need to be persuaded that the objectives of the Programme are not to reduce further the number of High Court and County court offices throughout the jurisdiction and the number of staff serving in them.  A consequence of the sharp drop in the number of civil claims being started since the introduction of the civil justice reforms came into effect is a serious reduction in the income from court fees.  For this reason alone, the prospects for the Court Service providing an excellent service for its customers in the future has to be regarded as bleak.

In relation to dilapidation claims, it is arguable that it is not only the smooth running of the litigation process that is necessary, but also some reform in the law itself.  Dilapidation law is derived mainly from the common law and like many other areas of English law it has developed rather sporadically and on a case by case basis. Few statutes of universal application exist, and those that do have been enacted as a response to perceived unfairness of the common law in a particular area.   Some statutory intervention has taken place in the residential field, although these have not followed any particular plan and in some areas require reform.  

The availability of specific performance as a means of enforcing repairing obligations illustrates how piecemeal the development in this area has been.  Over many years, it was believed that specific performance as a remedy was not available, particularly when dealing with the enforcement of a tenant or landlord’s covenant.   It was only in 1974 that an order for specific performance of a landlord’s covenant in favour of a tenant of a dwelling was finally conferred by statute.   Despite this fact, some uncertainty remained regarding the availability of the remedy in relation to a tenant’s covenant.  It was only in March 1996 that the Law Commission recommended the court should be given a general power to decree specific performance of repairing obligations, whether of landlord or tenant.  This recommendation has not yet been implemented, although in 1998 the High Court decided at first instance that power to order specific performance of a tenant’s repairing covenant exists anyway.  

The piecemeal development of the law has been matched by a deeply conservative approach to the drafting of dilapidations obligations in leases  There are of course exceptions to the rule, but most draftsmen have tended to stick to the old tried and tested formulae including the traditional obligation to repair and keep in repair.  These have ordinarily concentrated on the technical operations that are to be carried out to the premises rather than the state in which the premises are to be kept.  This has meant that there are some cases where the relevant obligation has been held not to have been broken even though the premises are clearly unusable.  This means that in a number of areas, the law of dilapidations does not provide the comprehensive solution to modern problems which a more structured and radical approach might provide.

In March 1996 the Law Commission published its report Landlord and Tenant:  Responsibility for the State and Condition of Property.   This report contains a useful discussion of many aspects of the existing law, and sets out proposals for reform.  The introduction concludes that there are some serious short comings in the law governing the repair and maintenance of leasehold property.  The report was published prior to the decision in Southwark Borough Council v Mills  where the House of Lords reaffirmed the general rule that the landlord gives no implied covenant with regard to the condition of the property being let. The House of Lords held that two tenants of council flats had no remedy at common law for substantial interference by noise resulting from the lack of sound proofing.  This decision would no doubt have been regarded by the Commission as further support for its views on the need for reform.

In the case of Habinteg Housing Association v James  Staughton L.J said in relation to the problem in that case where the landlord was not liable to sort out an alleged infestation of cockroaches on a housing estate that, “we are told that the Law Commission has been considering such a problem.  It is to be hoped that they will recommend a solution.  What is more, it is hoped that if they do, Parliament will carry it out.  Judges and lawyers are sometimes reproached when the law does not produce the right result.  There are occasions when the reproach should be directed elsewhere.”

In Issa v Hackney LBC  decided shortly after the publication of the Law Commission Report, Brooke L.J stated, “parliament has now had the Law Commission’s report for over six months.  The resolution of this injustice lies in decisions being taken about the allocation and distribution of public sector finance to the health service and to local government which are for ministers and Parliament and not for judges to take in our constitutional scheme of things.”

In Lee v Leeds City Council  Chadwick LJ commented on the recommendation in the report that there should be an implied term as to fitness for habitation in the following terms, “Parliament has not found time to give effect to that recommendation.  At the least, it has not done so directly.  Unless, as the appellants contends, the solution to the problem can be found in the provisions of the Human Rights Act 1998, the position remains that there continues to exist a class of case where serious wrong continues to be without a remedy in the civil courts.” 

Despite the judicial encouragement, the Law Commission report has not been implemented to date, and it is not clear when, if at all, this may happen.

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