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Surveyors Acting as Expert Witnesses

Special Reports

by Martin Burns



Chartered surveyors are the ultimate experts in matters relating to land, property and construction. RICS qualifications signal the fact that someone is highly competent, routinely keeps up to date on his/her specialist subject, and is robustly regulated to make sure s/he maintains high levels of professional competence.

Many surveyors spend a lot of their professional time helping clients who are involved in disputes, and many of these end up getting appointed to act as expert witnesses. The appointments may see surveyors giving written and/or oral evidence to courts of law, and other tribunals, such as: arbitrators, construction adjudicators, rent assessment committees, leasehold valuation tribunals and planning inspectors.

Surveyors, who take on instructions to act as expert witnesses, must be genuine subject matter experts. That is, they must have considerable knowledge and experience in the precise issue(s) on which expert evidence is required by the relevant tribunal.

Whilst chartered surveyors will have exceptional and varied skills in built environment matters, those who act as expert witnesses will often need to complement their knowledge by adding another “string to their bow”.

Most will already understand requirements around professional integrity and impartiality. These matters are at the heart of RICS ethics and will be reinforced throughout every surveyors’ professional lifetime through ongoing training and development, and also through published statements on professional practice, which are mandatory for all chartered surveyors.

Surveyor experts know and accept they must be, and be seen to be, independent and unbiased. They understand they must only deal with matters that fall within their personal expertise, experience and knowledge, and that they must be truthful at all times.

But acting as an expert witness requires surveyors to obtain additional knowledge about law and practice, and a real understanding of what is expected of them. Experts must be exceptionally good at communicating what they know about their specialist subject in a way that ensures the tribunal understands it. Surveyor experts must bear in mind, at all times, that the job is to help the tribunal understand a particular issue enough so that it can make an informed decision on the substantive dispute before it.

Surveyor experts must remember that, regardless of who is paying them to prepare their written reports and present oral evidence, their overriding duty is always to the tribunal. They are not to perform as advocates for their clients when they are acting as expert witnesses.

In recent years, instructing lawyers have become increasingly careful to ensure their expert witnesses are suitably qualified and capable of providing written and oral evidence to a high standard and in accordance with established legal requirements.

When assessing the suitability of experts, instructing parties and lawyers are likely to favour surveyors who have been trained and assessed by recognised training organisations. Formal qualifications provide assurance that those who hold themselves out as an expert witnesses are able to demonstrate real understanding of their primary roles and duties as experts. Those who instruct experts also need to be reassured that the expert is able to meet deadlines, produce court compliant reports, be credible in the witness box and have a thorough understanding of the relevant court procedures and rules.

In my experience, more and more surveyors are actively undertaking training and assessment in the role and duties of expert witness. It seems to me that the beginning of a genuine trend for surveyors to obtain formal qualifications as expert witnesses can perhaps be traced to the Supreme Court’s decision in March 2011 in Jones v Kaney.

The removal by the Court of experts’ immunity from being sued in negligence has not, at least in my experience, resulted in a plethora of cases being brought against surveyor experts. Even so, it seems the decision brought into sharp focus the requirements for surveyors to be as professional and detached in discharging the role of expert witness as they are when undertaking their day-to-day professional work as surveyors.

Clients naturally expect expert witnesses to perform to best practice legal standards in their role, and it seems surveyors are responding by getting themselves equipped to discharge the role to higher standards by undertaking formal training, and submitting to assessments and interviews which test their abilities.

There is greater realisation amongst surveyors today, that when acting as expert witnesses they really must possess essential legal knowledge and practical skills, and be confident in the witness box. And all this is in addition to their skills and experience in surveying matters.
Going forward, the demands on surveyor experts may ultimately lead to formal qualifications being requisite. Whilst this is not currently the case, it is apparent that surveyor experts who are trained and accredited have an advantage over those who are not when it comes to obtaining instructions.
Martin Burns

by Martin Burns

by Martin Burns

Page 2


Chartered surveyors are the ultimate experts in matters relating to land, property and construction. RICS qualifications signal the fact that someone is highly competent, routinely keeps up to date on his/her specialist subject, and is robustly regulated to make sure s/he maintains high levels of professional competence.

Many surveyors spend a lot of their professional time helping clients who are involved in disputes, and many of these end up getting appointed to act as expert witnesses. The appointments may see surveyors giving written and/or oral evidence to courts of law, and other tribunals, such as: arbitrators, construction adjudicators, rent assessment committees, leasehold valuation tribunals and planning inspectors.

Surveyors, who take on instructions to act as expert witnesses, must be genuine subject matter experts. That is, they must have considerable knowledge and experience in the precise issue(s) on which expert evidence is required by the relevant tribunal.

Whilst chartered surveyors will have exceptional and varied skills in built environment matters, those who act as expert witnesses will often need to complement their knowledge by adding another “string to their bow”.

Most will already understand requirements around professional integrity and impartiality. These matters are at the heart of RICS ethics and will be reinforced throughout every surveyors’ professional lifetime through ongoing training and development, and also through published statements on professional practice, which are mandatory for all chartered surveyors.

Surveyor experts know and accept they must be, and be seen to be, independent and unbiased. They understand they must only deal with matters that fall within their personal expertise, experience and knowledge, and that they must be truthful at all times.

But acting as an expert witness requires surveyors to obtain additional knowledge about law and practice, and a real understanding of what is expected of them. Experts must be exceptionally good at communicating what they know about their specialist subject in a way that ensures the tribunal understands it. Surveyor experts must bear in mind, at all times, that the job is to help the tribunal understand a particular issue enough so that it can make an informed decision on the substantive dispute before it.

Surveyor experts must remember that, regardless of who is paying them to prepare their written reports and present oral evidence, their overriding duty is always to the tribunal. They are not to perform as advocates for their clients when they are acting as expert witnesses.

In recent years, instructing lawyers have become increasingly careful to ensure their expert witnesses are suitably qualified and capable of providing written and oral evidence to a high standard and in accordance with established legal requirements.

When assessing the suitability of experts, instructing parties and lawyers are likely to favour surveyors who have been trained and assessed by recognised training organisations. Formal qualifications provide assurance that those who hold themselves out as an expert witnesses are able to demonstrate real understanding of their primary roles and duties as experts. Those who instruct experts also need to be reassured that the expert is able to meet deadlines, produce court compliant reports, be credible in the witness box and have a thorough understanding of the relevant court procedures and rules.

In my experience, more and more surveyors are actively undertaking training and assessment in the role and duties of expert witness. It seems to me that the beginning of a genuine trend for surveyors to obtain formal qualifications as expert witnesses can perhaps be traced to the Supreme Court’s decision in March 2011 in Jones v Kaney.

The removal by the Court of experts’ immunity from being sued in negligence has not, at least in my experience, resulted in a plethora of cases being brought against surveyor experts. Even so, it seems the decision brought into sharp focus the requirements for surveyors to be as professional and detached in discharging the role of expert witness as they are when undertaking their day-to-day professional work as surveyors.

Clients naturally expect expert witnesses to perform to best practice legal standards in their role, and it seems surveyors are responding by getting themselves equipped to discharge the role to higher standards by undertaking formal training, and submitting to assessments and interviews which test their abilities.

There is greater realisation amongst surveyors today, that when acting as expert witnesses they really must possess essential legal knowledge and practical skills, and be confident in the witness box. And all this is in addition to their skills and experience in surveying matters.
Going forward, the demands on surveyor experts may ultimately lead to formal qualifications being requisite. Whilst this is not currently the case, it is apparent that surveyor experts who are trained and accredited have an advantage over those who are not when it comes to obtaining instructions.
Martin Burns

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