I was instructed as a quantum expert by Bill Barton back in 2019, in what would become the first fully remote trial held in the TCC. I recall being told at the outset that this case was unlikely to get to trial but to everyone’s surprise there we were, almost a year later, logging on to Zoom to make history. Not many cases get to hearing stage, particularly when one party has admitted liability – that is usually the most challenging part of the whole process and the money follows thereafter. This case, however, turned out somewhat different - and not only because of that.
My involvement as a quantum expert witness began in the usual manner; I was sent lots of information and interacted regularly with the claimants and Barton Legal. I usually work for commercial entities like employers and contractors, so the first aspect of this case that I found particularly interesting was that it involved owners of a private home, up against their much better resourced local council – it was real-life David and Goliath stuff.
Though you would need a heart of stone not to feel sympathy for the claimants, my duty as an independent expert witness is always to the court (Civil Procedure Rule 35.3). For the most part, the process of putting my report together went relatively smoothly, all things considered; the case has its origins in 2010 and I was dealing with a couple not accustomed to the ups and downs of construction dispute resolution. However, what they lacked in construction legal knowledge, they more than made up for with two fundamentals, all too often missing when the gloves are off; (1) a large dose of common sense and (2) excellent records.
Dealing initially with the first point - we’ve all been there: you’re in a dispute which is personal and you’re unable to keep your cool, which often leads to clouded judgment. Well, you cannot get more personal than your dream home getting ruined, and for that, I commend the claimants for keeping it all together, during what was an incredibly stressful time for them. As a quantum expert trying to piece together the cost of events from up to 10 years ago, whilst simultaneously estimating the cost to rebuild the property - despite a still outstanding remedial solution to the leaking pipe, a cool head was essential.
Keeping cool then helped with the latter point – records, records, records. It is a mantra I will never tire of preaching to clients, as it really is fundamental to winning most cases. Luckily, the claimants had maintained excellent records of damages throughout the 10-year period, which enabled me to present them in a logical and compelling manner. By the time of trial, the Scott Schedule ordered by the court in 2019 had grown to such an extent it had to be printed on A0 paper (which is bigger than most widescreen TVs) in order to be legible! And that was largely down to the claimant’s record keeping, which allowed me to prepare a compelling expert report that helped secure a £3m+ settlement mid trial.
Despite all the positives, there were some hiccups along the way. Fortunately, prior to the COVID-19 restrictions, I was able to visit the property in person on two occasions, which gave me a real feel for the immense impact of the repeated flooding. Without that first-hand experience of the damage, I think I may have struggled to form an opinion on certain points as strongly as I did, as pictures really did not do justice to the extent of the issues. Whilst some things can be done successfully by video (such as a trial!), this was not one of them. The effectiveness of an old-fashioned site visit is something us expert witnesses can be guilty of overlooking at times. Of course, it’s not always possible, but where it is, I would strongly recommend it. Another challenge was that when the restrictions were implemented, I had been scheduled to meet with my opposite number. In the end, we had to prepare our joint statement remotely. Whilst not ideal, we managed to work through the issues and were able to provide the court with the statement.
It was exciting to be involved in the first ever remote TCC trial and to be participating via Zoom. It worked well in terms of the documents and I think the biggest hurdle would have been the ability to look at a very large and detailed spreadsheet on a computer screen, and not altogether at an enlarged hard copy. Fortunately, the case settled before we had to deal with that – a problem for another day.
All in all, whilst COVID-19 certainly provided some hiccups along the way, they were all overcome through excellent communication with all members of the claimants’ legal team, including the superb Barton Legal and Counsel Paul Darling QC and James Burton, both of 39 Essex Chambers.
David Daly, Director
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