What a Part 35 expert witness does in a landscape cost dispute
When a disagreement over landscape or garden works reaches court, the judge needs independent evidence on what the work cost, what it should have cost, and what it will take to put right. This guide explains how an expert witness provides it, and what to expect if you need one.
Why landscape disputes need an expert
Landscape and garden contracts are often agreed on a quotation, a short specification and a handshake. When something goes wrong, the argument usually comes down to numbers. Was the price fair? Was the work finished? Was the standard acceptable? What would it reasonably cost to rectify?
A judge cannot be expected to know the going rate for a tonne of stone, how long a patio takes to lay, or whether a planting scheme was delivered to specification. Expert evidence fills that gap. The experts’ job is to give the court an independent professional opinion on matters within their expertise, so that the dispute can be decided on facts rather than assertion.
What “Part 35” means
Part 35 is the section of the Civil Procedure Rules that governs expert evidence in civil cases in England and Wales. It is supported by Practice Direction 35, which sets out what an expert report must contain. Together they shape every instruction an expert witness accepts.
Two principles run through them. First, expert evidence is restricted to what is reasonably required to resolve the proceedings, so a report should be focused and proportionate. Second, the expert’s duty is to the court.
An expert must help the court on matters within their expertise, and that duty overrides any obligation to the person who instructs or pays them. An expert is not an advocate. The opinion has to be independent, objective and unbiased, whichever side asked for it.
What a landscape cost expert can address
In practice the questions fall into a handful of familiar groups. Experts are asked to consider evidence on:
Typical issues in a landscape or garden cost dispute
- Quotations and contractual allowances: what was included in the price, and what was not.
- Variations: whether extra work was instructed and whether the charge was reasonable.
- Completed works: what was actually done, and its value.
- Alleged overcharging or under-delivery.
- Remedial works: the reasonable cost of rectifying defective or unfinished work.
- Maintenance obligations, where planting or aftercare is part of the dispute.
Cost evidence works best when it is measured and itemised. Materials, plant, subcontractors and labour are each priced separately, and labour is assessed on the hours a crew can realistically deliver, not simply the hours it is paid for. Time lost to weather, travel, set-up and breakdowns is part of what a fair price has to cover.
What a Part 35 report must contain
Practice Direction 35 is specific about the form of an expert report. It is addressed to the court, not to the party that instructed the expert, and it must include:
- Qualifications and experience. Details of the expert’s qualifications, and any literature or other material relied on.
- Facts and instructions. A statement setting out the substance of all the facts and instructions that are material to the opinions, with clarity about which facts are within the expert’s own knowledge.
- Who did what. Who carried out any examination, measurement or test, and their qualifications.
- Range of opinion. Where there is a range of reasonable opinion, a summary of it and the reasons for the expert’s own view.
- Conclusions and qualifications. A summary of conclusions, and any qualification that applies to the opinion.
- Declaration and statement of truth. A declaration that the expert understands and has complied with their duty to the court, and a statement of truth confirming the report represents their true and complete professional opinion.
Single joint expert or one for each side
The court decides who gives expert evidence, and nobody may call an expert or rely on a report without its permission. Where the parties want evidence on the same issue, the court may direct that a single joint expert is used. That expert is instructed by both sides, who must share their instructions, and the parties are normally jointly responsible for the fees. A single joint expert is often the proportionate choice in a dispute of modest value.
Where each side has its own expert, the court may direct them to discuss the issues, agree what they can, and produce a joint statement setting out what is agreed and what remains in dispute. The aim is to narrow the issues, not to settle the case. Those discussions are not binding on the parties unless they expressly agree to be bound.
Questions to the expert
Once a report has been served, the other side may put written questions to the expert to clarify it. They must be proportionate and are normally limited to a single round within 28 days. The answers form part of the report.
Before you instruct an expert
Questions worth settling at the outset
- What exactly are the issues in dispute, and which of them need expert opinion?
- Has the court given any directions about expert evidence, and what is the reporting timetable?
- What documents exist: quotations, contract papers, drawings, photographs, invoices, correspondence?
- Will one expert be instructed jointly, or will each party have its own?
- Can the scope of work be agreed so that a fixed fee can be quoted?
Agreeing the scope first keeps the evidence proportionate, focused and relevant to the matters the court has to decide, which is also what keeps the cost down.
Disclaimer. This guide is for general information only. It is not legal advice and is no substitute for taking advice from a solicitor on your own case. It reflects the Civil Procedure Rules and Practice Direction 35 as understood at the date of publication, and these are updated from time to time. LandPRO accepts no liability for any loss arising from reliance on this guide.
Discuss your case in confidence.
Tell us about the issues in dispute, the evidence available and the timetable for reporting. Once the scope is clear, we can usually offer a fixed fee.
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