Japanese knotweed: Instructions from solicitors increasing, but is that a good thing?
Are the enquiries generated by Japanese knotweed’s notoriety always to be welcomed? We don’t mean the day-to-day ‘phone calls and emails from property owners asking for advice regarding management of knotweed on their land…they’re fine! But the requests sometimes received from solicitors to conduct, possibly free-of-charge, a Japanese knotweed survey for their client in respect of a possible claim for damages from a neighbour – are these welcome too?!?
‘Vetting’ reports – are there potential dangers?!?
These so-called ‘vetting’ reports are a preliminary to court proceedings and may be used to negotiate out-of-court settlements. They may also lead to the surveyor/contractor being retained to carry out some remedial work at a later date. Doesn’t sound like a ‘problem’ does it? But let’s explore the potential dangers of taking instructions from solicitors. The risks need to be understood to avoid financial loss or reputational damage to your business…
The ambulance chasing culture
The PCA office is quite a good listening-station for many sectors of the property care market and our radars have been bleeping a fair bit recently regarding firms of solicitors (or, before that, lead generators/claims handlers) advertising their services to homeowners who, they say, may be due “thousands of pounds in compensation” if there is Japanese knotweed on neighbouring land.
These campaigns may include postcode-specific mailshots in areas known to be hotspots for Japanese knotweed. So at the outset, we should recognise that a fair number of such claims may be spurious. Even someone who doesn’t know what knotweed looks like will be tempted to start a claim if they think they could ‘win’ £40,000!
Compensation claims and High Court rulings
Don’t get me wrong, conversely, many of these claims can turn out to be well-founded. If Japanese knotweed is present and encroaching from adjoining land there could be a basis for some compensation. If the knotweed is further away, a solicitor can help to put pressure on neighbours to manage their knotweed so it doesn’t become a nuisance in the future.
Most reading this will be familiar with the High Court ruling in 2019 that confirmed the common-law tort of ‘nuisance’ as it relates to Japanese knotweed (Waistell/Williams vs. Network Rail). This established a legal precedence for such cases (confirming that Japanese knotweed can and does lead to a loss of amenity and, subsequently, property value/saleability). Since that time we have also seen similar cases successfully brought against neglectful landlords under the Anti-Social Behaviour, Crime and Policing Act 2014.
A cautionary message for all surveyors
The cautionary message here is for all Certificated Surveyors in Japanese knotweed (CSJK) to think carefully about their potential role as ‘experts’ in the above process. Receiving an enquiry or instruction from a firm of solicitors can be an opportunity from a business perspective, but the expectations of the client (the legal firm) should be well understood.
Initially it may simply be a site inspection (to confirm the presence or otherwise of Japanese knotweed). This is straightforward in that it is either present or not and your role is just to say ‘where’ and ‘how much’. But in most cases, there is also a need for further details regarding the evidence for encroachment. This could seem ‘obvious’ i.e. the stand of knotweed is predominantly one side of the fence so encroachment must be from ‘their side’….right? Is it that simple? No!
Be aware of the risks of making assumptions
In a legal context, you should expect your opinion to be challenged robustly! Who’s to say the original source of the knotweed wasn’t ‘side A’ (little knotweed) rather than ‘side B’ (most of the knotweed)? The knotweed might be flourishing at B because the owners are absent or have failed to recognise its significance, whilst the owners at A are regularly spraying the knotweed and have conducted some DIY crown reduction. But further ‘forensic’ investigations may reveal more mature rhizomes can still be found below the surface at A, and Google maps from 10 years earlier confirm the presence of an extensive infestation when property B had none!
For those reading this that are PCA invasive weed members, I don’t mean to come across as trying to ‘teach your grandmother to suck eggs‘, but many of you will be aware that knotweed needs to be thought of as a three dimensional problem. HOWEVER…it is actually a four dimensional one!
The passing of time and the interference that often comes with stands of knotweed can alter the evidence dramatically, so ‘be aware’ of the risk of making assumptions that you can’t support with hard evidence!
Other things that might be relevant
A quick list of the other features of a stand of knotweed that might be relevant are:
- What impact the knotweed is having/or may have in the future – Risk (or Management) category?
- How long the knotweed has been present?
- What evidence is available regarding past management measures (by either party)?
- The success or otherwise of such measures – DIY, professional?
- General site biosecurity risks – are there other vector routes that might explain how the knotweed got there?
- (possibly) The cost of remediation or property value diminution
This list is not exhaustive! You need to establish the ‘brief’ from your client (property owner or solicitor; if the latter check they’re bona fide) and what they intend to do with your report.
An Expert Witness’s duty is to the court
If they want you to represent them/their claim in court you need to know that an Expert Witness’s duty is to the court, and the court will take a very dim view indeed if you haven’t done your homework. Worst case scenario is that you could be liable for the court’s costs if your evidence is deemed to be misleading!
Expert witnesses are likely to be cross-examined on every aspect of how they conducted their survey, the evidence collected and the conclusions drawn. Are you prepared for that? We recommend reading the ‘Part 35’ Civil Procedure Rules as we all like to think we can defend our opinions, especially those based on facts on-the-ground, but acting as an ‘expert’ for the court is quite a different thing from day-to-day knotweed surveys…
The webinar presented last year by Dr Paul Beckett from Phlorum on The Risks of Being an Expert Witness was both excellent and informative and we encourage all to check it out.
Help and guidance is available
The PCA also runs specific training courses for those considering this type of work and in order to obtain appropriate Professional Indemnity (PI) insurance cover, you should probably join one of the two professional bodies representing this area of work: Society of Expert Witnesses or Expert Witness Institute.
Finally, download a copy of our latest Guidance Note – Japanese Knotweed Site Survey Reports and Management Plans: Recommendations; this explains how you are liable in common law (your ‘Duty-of-Care’) for the advice you give and how you can limit your liabilities.
Small things in one way but if overlooked, or underestimated, can lead to severe financial and reputational losses.
So are leads/enquiries from solicitors a good thing? Yes indeed; we would hope all our members are able and willing to give advice when asked. But make sure you understand your role and the special skills and qualifications required to act as an ‘expert witness’, if called upon to do so…
Remember to keep in the loop…
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