Scott and Others v E.A.R. Shepherd Consulting Civil and Structural Engineers

[2016] EWCA Civ 553

In this case, the Claimants sought damages from a firm of structural engineers who had prepared a report upon which the Claimants said they relied prior to purchase of a property.  It transpired that the lean on the property was so bad it had to be demolished. Unsurprisingly, this was a case where the expert structural engineering evidence was key.  However, Mr Justice Fraser noted that that evidence was “notable” for a number of reasons. For example, the Joint Experts’ Statement contained, in the words of the Judge, “precious little, if any, agreement”. The Judge was also clear that he preferred the evidence of one expert over the other, even though they were both “adequately qualified” to give evidence. He said this for the following reasons:

• Only one of the experts personally inspected the property. This was even though the defendant had ample notice of the “claim, the situation, the intended demolition, and the express invitation if not encouragement to inspect”.  The expert was only instructed after the demolition had taken place.
• The expert was “remarkably quick to dismiss evidence that did not fit his overall thesis, from which he appeared reluctant to move”. Mr Justice Fraser gave an example relating to photos, noting that “it is rare for an expert to comment upon what appears to be a perfectly straightforward photograph and comment that ‘it might be distorted’”. There was no such reason to suggest this.
• The second expert also made an allegation of serious unprofessional conduct on the part of two professional engineers, suggesting that their views may have been influenced by the prospect of further fee income involved in being instructed for the demolition works. The Judge said that this allegation was unfounded for two reasons. It would be an obvious breach of professional conduct on the part of the engineers in question and there would be higher fees available in any event for an unscrupulous engineer if alternative remedial schemes (short of demolition) were to be pursued. The Judge went as far as to suggest that the approach was nothing more than “mud-slinging”.
• Then the Judge found the second expert’s approach to the relevant BRE Guidance on tilting walls in buildings to be “verging on the cavalier at times”.
• The second expert also “constantly confused or failed to differentiate between the advice that should have been given at the time, with what could have been done to remedy the problems with the building”.  The Judge noted that the feasibility of wildly different remedial schemes, and their cost, is a different issue to breach of duty. The issue here was: what should Sheppard Ltd have advised at the time?
• The second expert applied the wrong standard of proof. Beyond reasonable doubt is not the standard of proof in civil litigation.
• Finally, the second expert’s attitude to answering questions was rather evasive; even the most simplistic questions were simply avoided and opposing counsel often had to put the same question two or even three times.

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