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Surveyors Acting as Advocates – the Challenges and Potential Pitfalls

Building & Construction

Chartered surveyors spend a lot of their professional time helping clients who are involved in disputes. When problems escalate to formal tribunals, surveyors bring a range of expertise to bear. They act as advisers, expert witnesses, arbitrators, mediators and also as advocates.

Chartered surveyors are not, normally, legally qualified, and their rights to act as advocates in formal judicial proceedings are limited. Surveyors do not have a right of audience in the courts, in the same way as barristers and solicitor-advocates, though many surveyors do appear by prior leave in the Lands Chamber.

Surveyor-advocates often appear before non-court tribunals such as Arbitrators and Construction Adjudicators. They also advocate on behalf of clients before Rent Assessment Committees, Leasehold Valuation Tribunals, Valuation Tribunals and Planning Inspectors.

When acting as advocates, surveyors frequently appear in front of, or alongside solicitors and barristers, whose professions are subject to mandatory rules of conduct governing advocacy. It is natural, therefore, to expect surveyor-advocates to be obedient to similar rules and fundamental principles which govern the conduct of advocates as legal professionals.

The two most important messages RICS repeatedly conveys to chartered surveyors who act as advocates is that:

a) All surveyor-advocates owe a duty of care to their clients, and

b) All surveyor-advocates owe a duty to the tribunal to act fairly and to assist in maintaining the integrity of the tribunal process.

Most surveyors who act as advocates do not have a problem understanding and adhering to their duties to their clients. These are duties that are conveyed
throughout their training and qualification to be chartered. The responsibilities attached to a professional/ client relationship are thus easy for surveyors to appreciate. And, after all, the fact that it is the clients who pay their fees, often helps to concentrate attention.

A surveyor owes his client a duty to exercise reasonable skill and care in relation to the matters on which he is instructed. This duty includes exercising reasonable care and skill to ensure his statements on professional matters, which are to be submitted in evidence to a tribunal, are competent, and he has not
made any dishonest misrepresentation.

A genuine problem for some surveyors is reconciling their client duties to the requirement as an advocate to be objective in their approach to tribunals, and being unconditionally truthful, all of the time.

It is not necessarily the case that advocates routinely and intentionally set out to mislead tribunals, or deliberately lie, though perhaps a few do. The central problem arises where advocates fail to grasp the subtle distinction between forcefully promoting a client’s case, and acting in a way that is insincere or, in some cases, even deceitful.

The RICS Practice Statement for Surveyors Acting as Advocates sets out mandatory requirements for surveyor-advocates, which includes a duty not deceive or mislead a tribunal, or any opposing party. Whilst this is a very important duty, it is one that can be misinterpreted.

It does not, for example, preclude surveyoradvocates from advancing interpretations of the evidence submitted to the tribunal in a way that is advantageous to their clients. What they should not do, and this is the crucial point, is distort the evidence, or conceal salient facts, to offset against weaknesses in their case. Part of this would appear to be answering questions put by the opposing advocate, or tribunal, candidly and unambiguously.

A surveyor-advocate also has a responsibility to draw a tribunal’s attention to all relevant facts, case law or legislation, whether it supports their client’s case or not. This is a burden that may in fact come as a revelation to some surveyor-advocates.

There is anecdotal evidence that the duty to disclose unfavourable evidence to a tribunal is actually overlooked by some surveyors, and indeed lawyer advocates too. It is, without doubt, a duty that can put an advocate in an uncomfortable position with his client, but that is no excuse for failing to comply with it.

From an objective perspective it is better for surveyoradvocates to confront any possible Achilles' heel in their case at an early stage, so that they can explain to
the tribunal how it will be dealt with, rather than to wait for the other side to raise it and then appear unprepared as they attempt to grapple with it.

A surveyor advocate, when preparing a case for submission to a tribunal, could sensibly take the earliest opportunity to meet with the client, and discuss the evidence needed to support the issues or facts which are required to persuade the tribunal. This meeting could also be used to explain the advocate’s duties and explore areas where those duties might possibly involve providing the tribunal with information, which would not necessarily serve to promote the client’s case.

A chartered surveyor, who takes on the role of advocate, takes on numerous and substantial burdens of responsibility. It is nevertheless a stimulating and
rewarding role, which attracts many surveyors from a wide set of processional disciplines. The three principal challenges, which all surveyor-advocates face, are perhaps:

1. Marrying the duties they owe to clients and tribunals,

2. Understanding when those duties conflict, and

3. What to do when that happens.

Martin Burns - 15 June 2016