An expert witness plays a crucial role when there are disputes between building owners or occupiers and building contractors or other property services contractors.
Experienced building surveyors like the team at Harrison Clarke, a leading chartered surveyor firm in the Hampshire area, are often brought in to help to mitigate and resolve disputes.
Over many years now, Harrison Clarke has been appointed by solicitors acting both on behalf of the contractor and the party that has paid for the work, as well as acting as a single joint expert appointed between both parties.
In this article, we answer questions we are regularly asked about appointing a chartered surveyor as an expert witness.
We have been appointed as an expert witness on cases for a variety of projects, including replacement roof coverings, replacement glazing, paving and external landscaping works, extensions and internal alterations, and even smaller parts of works within those projects such as replacement floor tiles.
Often, the quality of the construction works will be the area of dispute, most likely relating to their design or how the contractor has executed the work. Sometimes, the dispute will relate to a limited part of the building work and in some cases the dispute will involve a more substantial part of the work.
The building owner may claim that, in their opinion, the contractor has failed to use reasonable care and skill. If the contractor disagrees, this can result in a dispute over the value of works undertaken, or the time it has taken for the contractor to complete the works.
Disputes also arise when damage is occurred to the property, which is claimed to be a result of defective workmanship. In some cases, the work may not have been undertaken in accordance with statutory standards such as the Building Regulations.
In the worst cases, works may have been left unfinished or even unsafe.
Remedying those works may cause direct or consequential losses which the claimant may seek to recover from the contractor.
If you are unhappy with works you have commissioned, in the first instance you should raise your concerns with your contractor.
Before you do, we suggest that you prepare a list of issues and explain how you would like them to be resolved.
If the contractor does not resolve your issues to your satisfaction, we always recommend that you seek qualified legal advice. Litigation through the courts is an expensive process and you should always aim to avoid court action wherever possible.
Your legal advisers will be able to discuss alternative dispute resolution methods with you such as mediation which may be a more cost-effective solution, particularly for lower-value claims.
If the contractor has a formal complaints process, then this should be followed or, if they are a member of a trade association, they may have a dispute resolution scheme that you can go through.
If your home insurance policy includes cover for legal expenses, you may be able to get qualified legal advice through your policy and, if necessary, pursue any action through the policy.
In many cases, it is advisable to obtain a surveyor’s advice early in the process to determine if your claims of defective workmanship, for example, are valid.
You should be aware that any reports obtained where there is a genuine contemplation of litigation may be disclosable to the other party in subsequent litigation. If the works are in progress and you are having concerns with the time taken or the quality or cost of the building works, you should raise them with a contractor as soon as possible and, if necessary, obtain advice from a qualified construction professional or legal adviser.
If you are unable to resolve the dispute and you end up proceeding with litigation, the court may permit the submission of expert evidence to assist them in making their decision.
We find that, in many situations, agreements for construction works can be made without detailed drawings, specifications or defined contract terms.
Where there is little contract information, it can be very difficult and time consuming for the experts to unravel what has been agreed between the parties.
Each might have different expectations of what was required or agreed. Parties may have appointed contractors based on an anecdotal recommendation, and often without fully agreeing terms.
Disputes often arise because the client might not appreciate the status of an estimate, which can be subject to change, compared to a fixed price quotation.
Also, it can be unclear at what stage payments are due. A well drafted contract is invaluable in determining the extent of the agreed works, when payments are due and when the work should be completed.
If there is no date for completion, the contractor should execute the works within a reasonable time.
Where higher value works are undertaken, we always recommend that a standard construction contract is used, such as the Joint Contracts Tribunal (JCT) suite of contracts and, if you are unfamiliar with managing complex construction works, it is beneficial to employ the services of a surveyor, architect or other experienced construction professional who can administrate the contract on your behalf.
Often, there is a lack of substantial evidence to support claims, which makes it practically impossible to get a successful outcome in your dispute.
It is very important to keep written and photographic evidence, particularly if changes have been made to the agreed works after they have started.
Before agreeing any changes, you need to consider what effects those changes will have on the time it will take to complete the works, the standard of the finished works and the final costs.
You should always agree any changes in writing. Information is key in resolving disputes and the quality of that information can be fundamental in assisting the expert witness to reach a conclusion and ultimately help the courts make their decision.
Where remedial works have already taken place, it can be very difficult for an appointed expert to determine whether those remedial works, or the extent of them, were necessary.
We recommend that you obtain expert legal advice before undertaking any remedial works unless, of course, there is an immediate risk to safety.
This can depend on the contract. Unless the contract is executed as a deed, the typical time limit to bring a claim for negligence or breach of contract is six years from the date of the breach.
However, in construction works, a defect may only become apparent after the expiry of the six-year limitation period.
Whilst it is possible in some circumstances to bring a claim after the six-year period has expired, this is a complex area of law and you should always obtain qualified legal advice.
At Harrison Clarke, we have a wealth of experience in preparing expert evidence and reports compliant with the guidance and protocols.
You can be assured that we have thorough technical knowledge and extensive experience to deal with any issues across all our service areas, including party wall matters, dilapidations, construction disputes, contract administration and professional negligence.
If you would like to find out more about our expert witness service, please get in touch.
We have a range of videos talking through various surveying services, including appointing a building surveyor as an expert witness. You can access them via our website or our YouTube channel. If your query is not covered in our videos and blogs, please don’t hesitate to get in touch.
We would be more than happy to help you.
Call our friendly, expert and highly qualified surveyors on 023 8155 0051, or email us at info@harrisonclarke.co. We would welcome the opportunity to help with any queries or needs you may have.
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Tim set up Harrison Clarke Chartered Surveyors in July 2017 following a series of public and private sector surveying roles, having previously worked for the University of Cambridge, Rund Partnership, Goadsby, and CBRE.
Tim has degrees in building surveying, construction project management, and business administration.
