Disputes can often arise in the property world. It might be over the quality of construction works, payments due under building contracts, conflicts about dilapidations or claims of professional negligence.
When someone involved in a dispute decides to go down the legal route to resolve it, the court or the tribunal may decide to include the submission of expert evidence to assist them in reaching a judgement. This is particularly common when the claim includes complex specialist issues or technical matters.
Our team of highly qualified and experienced chartered building surveyors at Harrison Clarke is often called upon to provide evidence as an Expert Witness. In this article, we walk through what is involved, so you know what to expect if you ever need to go down this route or if, indeed, you are drawn into the process by another party.
What is an Expert Witness?
An expert is defined as anyone with knowledge or experience in a particular field or discipline that goes beyond what a layperson would generally know. When chartered building surveyors act as experts, they are an essential part of the legal process in disputes relating to construction and properties.
The role of an Expert Witness is to assist the court or tribunal in areas that they cannot reasonably be expected to form a view on without assistance from someone qualified to advise on that particular area. The Expert Witness provides objective and unbiased opinions on matters within their expertise.
Their evidence is normally given in the form of a written report and, in some circumstances, they may be required to give evidence in court under cross examination.
Evidence given by the expert may include the presentation or interpretation of the factual evidence, explanation of technical matters or opinion evidence. Their conclusions must be impartial, and uninfluenced by the instructing parties. The expert is not permitted to act as an advocate, or only report facts which favour the appointing party. As well as falling within their area of expertise, the evidence they give must consider all material facts and be a true reflection of their knowledge and experience.
When do you need an expert?
The instructing parties and their advisers should carefully consider whether an expert is necessary to resolve their dispute, as any legal process is costly.
If the parties cannot reach an agreement on technical and specialist issues, the answer to whether you need to instruct an Expert Witness may ultimately be yes.
You do not need a court’s permission to instruct an expert. However, the court’s permission is required before an expert’s report can be relied upon, or before an expert can be called to give evidence.
The court may instruct the parties to, or give them permission to, each obtain expert evidence in relation to establishing specific issues. Alternatively, the parties may choose to agree to the appointment of a single joint expert. The advantages of this can be to both reduce the overall costs and also, hopefully, the time it takes to resolve the dispute. Both parties to the dispute should be on an equal footing.
An expert can accept instructions directly from the parties. However, we would always recommend that you obtain qualified legal advice before commencing litigation or any action in contemplation of litigation.
What is the process for engaging an Expert Witness?
Before accepting instructions to be your Expert Witness, we will need to carefully consider a number of points:
- a) Whether we have the ability to act impartially; for example, if we have previously worked for, or have an ongoing relationship with, one of the parties in the dispute, we must advise you of any potential conflict. There may be a potential conflict of interest and a careful assessment would need to be carried out to ensure it would not affect our impartiality, or the court’s perception of our impartiality.
- b) We must consider whether we have the necessary experience, knowledge and expertise appropriate for the assignment. An expert must be very careful not to stray outside the area of their expertise or technical knowledge. If additional expertise will be required to form a conclusion, this may require additional expert appointments to provide an opinion on those matters. It is likely that the court would give less weight to a report where we provided an opinion beyond our expertise. If they believe this to be the case, they may even deem our evidence inadmissible.
- c) We must also consider whether we have the resources to complete the assignment within the required timescales and to the required standard. Often, in disputes, there is a substantial amount of documentation which must be read, considered and commented on. If we cannot meet the required timescales, we will not be able to accept the appointment.
If you decide to commission us to be your Expert Witness, we will send you our terms of engagement. It is important that you fully understand these terms before you agree to them in writing.
The most important requirement is that the parties provide clear instructions to the expert. If an order or court directions have been issued, these should be provided to the expert, along with the relevant matters of the case, the parties to the dispute and any key timescales.
What will be in your report?
The report will set out the facts of the case, along with all relevant documentation and the evidence we have used to form our conclusions. It will also clearly define which of these conclusions are fact and which are our opinions, along with a summary of our findings.
The report will normally be in a standard format, which will include the qualifications of the expert alongside a statement of truth and declaration.
The evidence we provide must set out fully the facts on which our opinion is given. It must be truthful, impartial and provide our independent decision. The report must cover all of the relevant matters, regardless of whether or not those facts favour the client.
An expert report must include a declaration and a statement of truth as set out in the RICS guidance and the Ministry of Justice Civil Procedure Rules & Practice Directions, in particular Part 35 Experts and Assessors, and its supplementary Practice Direction. This includes a statement that we are likely to be the subject of public, adverse criticism by the judge if the court concludes that we have not taken reasonable care in trying to meet the standards set out in that statement.
Can you amend your report or leave bits out?
We can amend the report, however this is only in a limited set of circumstances. We cannot amend the report for suggestions or alterations that do not match our own opinion or that distort our opinions.
What rules or guidance do experts have to follow?
When acting as an Expert Witness, there are very strict rules and protocols that we must follow.
Firstly, there are the rules of the court or tribunal itself.
Secondly, there is the Ministry of Justice Civil Procedure Rules & Practice Directions, in particular Part 35 Experts and Assessors, and its supplementary Practice Direction. These are a strict set of rules which govern the appointment and the procedures of experts throughout the legal process.
Thirdly, there is the guidance for instruction of experts in civil claims, published by the Civil Justice Council, which gives guidance to assist litigants, experts and those instructing them, to understand best practice for complying with Part 35 of the Civil Procedure Rules and court orders.
When we accept your instructions, we will advise you that the RICS (The Royal Institution of Chartered Surveyors) practice statement and guidance notes, for surveyors acting as Expert Witnesses, and the rules of the relevant tribunal, will apply. This sets out standards and best practice that all RICS members are expected to meet when acting in the capacity of an Expert Witness. We will also draw your attention to the client guide published by the RICS regarding the appointment of Expert Witnesses. A copy of this client guide can be found on the RICS website.
At this point of the process, we will also advise you that our complaints handling procedure does not apply. This is not because we are anticipating you not being happy with our service, or are trying to avoid you making a complaint, it is simply a legal stipulation; even though you may be responsible for paying the fees of the expert, the expert’s duty is to the tribunal. We do, however, still have a duty to exercise reasonable skill and care and comply with the RICS professional standards.
How much does it cost to have an Expert Witness?
Each case will be different depending on the time and the complexity involved in reviewing documentation, undertaking any necessary inspections or investigations, reviewing the findings, having discussions between any experts and also preparing reports. In complex cases, the time spent can be considerable. The payment of fees will be clearly set out in our terms of engagement and we will normally provide an estimate on the potential time we believe will be spent on the case.
Who pays the Expert Witness’s fees?
The appointing party will usually be responsible for the payment of all experts’ fees, although the court may assess and award costs between the parties as part of any judgments. The small claims process, however, sometimes limits the extent of the recoverable fees in relation to experts’ reports.
Do you offer a no-win no-fee option?
No. The RICS practice statement prohibits any appointment on a conditional or success-based fee arrangement. This is because it could affect the Expert Witness’s impartiality. The overriding duty of an Expert Witness is to the court or tribunal to which the expert evidence is given. This is a clear requirement of the Civil Procedure Rules & Practice Directions.
So, you can see that just having the relevant skills and experience is not enough. An expert must be familiar with all the associated rules and processes involved in being an Expert Witness.
At Harrison Clarke, we have a wealth of experience of preparing expert evidence and reports compliant with the guidance and protocols involved in being an Expert Witness. You can be sure that we have thorough technical knowledge and the experience to deal with any issues across all our service areas. These have included party walls matters, dilapidations, construction disputes, contract administration and professional negligence.
Paul Badham, one of Harrison Clarke’s most experienced chartered surveyors, has recently further bolstered their skill base by undertaking a valuable specialist training programme to be accepted as one of a limited number of RICS registered Expert Witnesses who are recognised as specialists in building surveying.
How you can contact Harrison Clarke
Call our friendly, expert and highly qualified surveyors on 023 8155 0051, or email us at firstname.lastname@example.org. We would be delighted to help with any queries or needs you may have in this area.
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