Mr Smeaton’s Holiday or In Praise of the Single Joint Expert

Wells-next-the-Sea on the North Norfolk Coast is a popular destination for those choosing a holiday or a weekend away in the UK – it has much to recommend it. Sitting in an area of outstanding natural beauty, it has a sweeping sandy beach lined with colourful beach huts, undulating sand dunes backing on to pine tree forests and a bustling harbour where fisherman bring their catches of crabs and lobsters ashore. The low-lying coastline means that the harbour is very much tidal, giving a perpetually changing but always picturesque view and causing its navigable channels to constantly shift, keeping the captains of fishing vessels and leisure craft on their toes.

This tranquil town was, in the eighteenth century, not a magnet for discerning tourists but a busy working port serving an important agricultural region. It was also a scene of a dispute that would give it a unique place in legal history.

The first recorded use of an expert witness appeared in a case which arose out of a dispute that took place in Wells-Next-The-Sea, Folkes v Chadd (1782).??Then, as now, high tides and storms could result in flooding inland.?Some Norfolk farmers, in an attempt to prevent the sea overflowing into meadow land, had constructed a sea bank.?They were being sued by the Wells Harbour Commissioners, who believed that the farmers’ action had caused Wells Harbour to silt up.?In this landmark case, Lord Mansfield, Chief Justice, overruled Mr Justice Gould's refusal to permit a jury to hear the evidence of a witness called by the defendants, one John Smeaton, on the basis that he was going to speak not on facts but on opinion.?John Smeaton, FRS, was a celebrated civil engineer, who was invited to visit Wells-next-the-Sea and consider the situation. He gave his expert opinion that the farmers’ bank was not the cause of Wells’ harbour silting up, as was being claimed, and that cutting through or demolishing the bank would not stop further harm to the harbour.

Lord Mansfield held that: “….The cause of the decay of the harbour is….a matter of science….of this, such men as Mr Smeaton alone can judge. Therefore, we are of the opinion that his judgement, formed on facts, was proper evidence.”

From that day on the courts and other tribunals have become increasingly reliant upon the evidence of experts, to assist them in clarifying technical issues which are beyond their own sphere of expertise.?

Confusion vs. Clarity

In Folkes v Chadd, once Mr Smeaton’s evidence was held as being admissible, his expert opinion was bound to hold great weight given that his opinion was the only one presented.?Today we are accustomed to both parties presenting experts, who, whilst bound by rules of impartiality, may hold opposing opinions.?Then, rather than assisting the Court to reach a decision, they can simply add a layer of confusion over the complexity of technical aspects of the case, prolonging proceedings and inevitably increasing costs.

This is clearly in no-one’s interest.?In order to save court time, and in an attempt to reduce the extent of items in dispute, the court may direct that the experts should confer.?A joint statement produced as a result of such a conference can be very useful in clarifying the issues.?Indeed, even when it is not directed by the court, an RICS Registered Expert Witness advising their client should point out the advantages of such a meeting.?A conference between both parties’ experts may be a useful way of narrowing the argument, ultimately speeding up the resolution process, saving the client both time and money

When one may be better than two?

Mr Smeaton provided the only expert opinion in Folkes v Chadd, the defendants calling him to give evidence because his opinion protected their interests -although it was an objective, unbiased view.?These days, Parties to a dispute, despite recognising that experts are required to be impartial, will generally want to select their own.?

The court may have other ideas, directing that the opinion on a case is given by a single joint expert.?Within the construction sector this is particularly true in cases of alleged defective construction works, or value of work undertaken.?Expert opinion from chartered surveyor to chartered surveyor should not vary greatly.?Appointing a single joint expert ought to reduce time and costs for all involved. In this situation, the parties would typically agree on a suitable candidate, or the expert would be selected by the court or tribunal from an agreed list prepared by both sides.?

But why wait for the Court to make such a direction??From the outset of a dispute, both parties will typically want to understand the strength of their position from a technical point of view – the Single Joint Expert is bound to give independent, unbiased opinion – of value to both camps.?There is nothing stopping the parties from taking the initiative and together appointing a single joint expert to provide expert and unbiased opinion - agreeing between themselves to share the costs and saving a lot of time in the process.

Just as in 1792 Mr Smeaton’s trip to Wells-next-the-Sea ultimately helped the court reach its decision, so the single joint expert will inform and support the court or tribunal’s decision-making process.?And here’s a thought: with the parties sharing the costs of the expert’s report, there may well be something left in the kitty to follow in Mr Smeaton’s footsteps and enjoy a jaunt to the North Norfolk Coast.