A Day in the Life of a Japanese Knotweed Expert
Dr Paul Beckett is the co-owner and director of environmental consultancy, Phlorum.
One of the UK’s leading experts in Japanese knotweed, Paul has been providing Expert Witness services since the early 2000s. He shares his insights into being part of a relatively new area of litigation; what makes a good Expert Witness; and why he approaches court like revising for an exam. Paul can be contacted through his EWI profile.
Initially, my Expert Witness work focussed on public inquiries to do with air pollution and planning.
I got into Expert Witness work after doing a DPhil in Biology and Environmental Sciences, focussing on plant eco-physiology and air pollution. It’s not an intuitive pairing of subjects, but plants are good environmental indicators because they are sensitive to pollutants and they stay where they grow.
Straight out of university, I worked for the engineering and environmental consulting company, WSP. They put me on an Expert Witness training course, but it’s experience that has taught me the most about being an Expert Witness.
I co-founded Phlorum in 2003, a consulting firm that offers a wide range of environmental services. Our original USP was that we are experts in dealing with Japanese knotweed where it affects property.
Japanese knotweed is a relatively new area of litigation.
In 2017, I was the Expert Witness in what has become the landmark ruling on Japanese knotweed and property risk, Williams and Waistell v Network Rail. The claimants’ properties were next to a railway line that contained a huge amount of decades-old knotweed. As a result, neither claimant could remortgage or sell their property.
Although Network Rail had previously settled numerous similar claims, they decided they had good prospects for defending this one. Subsequently, the case went to trial. However, the judgement, and a later appeal, went against them. The court found that the knotweed originated on Network Rail’s land and spread onto the claimants’ properties, meaning that Network Rail was liable for the diminution in property value caused to the claimants.
These rulings have opened the floodgates for new claims, making knotweed a prominent area of litigation. Most of my chargeable hours are now spent on knotweed cases.
At first, I was mostly instructed by claimants.
It was fuelled by an abundance of knotweed claims firms jumping on the bandwagon. Many of these claims were driven by financial gain rather than achieving any sort of justice for homeowners who couldn’t sell their property. The claims were often supported by very poor-quality Expert Witness evidence.
At first, this didn’t matter, as many defendants elected to settle rather than challenge claims. Then, as the market matured and lawyers got to grips with the issues, they realised that poor claims could be defended. Subsequently, I’m now doing much more defence work.
This is not to say that legitimate claims no longer exist. Although knotweed rarely causes significant structural damage, the impact on property value can be huge. Knotweed is still a big deal. For a claim to be successful, it needs to be based on solid, good-quality expert evidence.
As the Japanese knotweed industry developed, it was a bit like the Wild West.
The knotweed bandwagon attracted a diverse range of professionals with backgrounds in ground works, construction and horticulture, but there was no consolidated guidance. This led to the establishment of the Property Care Association’s Invasive Weed Control Group, in which I played a role. I also helped develop guidance for the Royal Institution of Chartered Surveyors (RICS).
I still come across many knotweed Expert Witnesses who’ve come from hands-on contractor work. They might have good experience, but I’ve found they are often lacking in report writing skills and they have no real understanding of what it means to be an Expert Witness. It’s often evident that they are saying what their instructing solicitors want to hear, rather than telling them what they need to know.
The reason I sought out the EWI is because I found very little guidance out there for experts.
It’s been invaluable for me, giving me access to training and guidance. I’ve found the governors’ helpline particularly useful. I can ask for help with very specific issues and be assured that the responses I get are from seasoned experts, judges and legal professionals of the highest order.
Public inquiry work is very different to litigation.
With public inquiries as part of planning appeals, the cases are usually big and expensive, with the cross-examination coming from King’s Counsel. However, in my court work, I’ve found that juniors are often sharper on some of the basic legal tests and principles than Silks.
In court, the judges have normally been (or still are) barristers, which means they have an intrinsic understanding of the adversarial process. At public inquiries, I’ve found there can be less connection between the lawyers and the inspectors (the latter usually coming from a town planning background).
I find court less stressful than public inquiries.
My first ever experience as an Expert Witness was at a public inquiry. Being aggressively cross-examined in front of a large audience was a baptism of fire! My first experience of being cross-examined in court was much less challenging. I think a reason for this could be that the courts are used to dealing with people who’ve never been there before, whereas at public inquiries it’s usually professionals under scrutiny.
I see more gamesmanship between the sides in a court case, and I try hard to stay out of this. My focus is on my job, which is to assess and opine on the evidence, to tell the truth, and to be as reasonable and helpful as possible.
I approach being in court like revising for an exam.
I sit down and revise, focusing on my written evidence, looking for any small areas of weakness or contention. This often leads me to bolster my knowledge by swotting up on issues or guidance that I’d not necessarily focused on when preparing my written evidence.
I’ve often found that my cross-examination does not go the way I’d anticipated, so this wider preparation has proved very useful on numerous occasions. It helps me stay on top of my subject and improves my confidence and authority in the courtroom.
Be reasonable and tell the truth.
That’s the advice I have for anyone new to Expert Witness work. I often see experts getting into trouble because they’re swayed by what their instructing solicitors would like them to say. Remember, your duty is to the court, and if you’re unreasonable in the face of reasonable cross-examination, the court will likely lose confidence in your opinions.
I’ve seen experts argue with the judge and it never ends well. It’s easy to forget that judges are simply human beings — albeit very smart human beings — attuned to calling out the flakiness of weak experts.
There’s nothing wrong with changing your mind.
Most of the problems I see from experts in court are because they’ve doubled-down and won’t budge from their initial stance. If you manage expectations and you’re honest and truthful from the start, you’ve got no worries.
You can’t fight a corner if you don’t really believe in it. Challenge yourself and caveat your opinions. If there are alternatives, explain why you prefer one opinion over the others. In this way, you can show that you are open to being convinced of alternative views if new evidence emerges. This will also help the lawyers decide as early as possible if their strategy might need to change. No one is going to thank you if you cause costs to mount because you wouldn’t alter your opinion in the face of new information.