Homebuyers win right to use experts in property defects case

Douglas and Karen Spence allege that the house they bought in 2020 contained numerous defects, despite being signed off by professional certificates provided by David Graham. The developer, Garry Walker, was later found liable for £500,000 in damages but had since become insolvent, leaving the couple unable to recover the money.

In their current action against Graham, the Spences asked the Court of Session to approve seven expert witnesses who had reported on problems ranging from the septic tank to insulation and damp-proofing. Graham’s legal team argued that most of these experts had been used in the earlier case against the developer and that the couple should not be allowed to pass on those costs.

Lord Braid disagreed, ruling that it would be uneconomical to force the Spences to hire new experts simply because they had been involved in the previous case. He certified six of the seven witnesses, noting that expert reports were essential to prove the alleged defects and that the court system should aim for “economy in litigation”.

The judge stressed that certification does not guarantee the Spences will recover all costs, which will be decided later by the court auditor. One expert was refused approval for now, though the couple may reapply if they can show his relevance.

The decision clears the way for the Spences to press ahead with their claim, which centres on whether Graham’s certificates wrongly assured lenders and buyers that the property met building standards.

A full case report has been published by SCN’s sister publication, Scottish Legal News.