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News & opinion

30 MAY 2022

Surveyors as expert witnesses

Martin Burns

Head of ADR Research and Development

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.

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

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.

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

Additionally, they must be very 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.

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 has brought into sharp focus the requirements for surveyors to be both highly professional and objective when discharging the role of expert witness.

In the current climate, 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. In fact, some courts in the UK go so far as to insist that professionals who give expert testimony will have previously undertaken expert witness training.

In my experience, more and more surveyors are actively undertaking training and assessment in the role and duties of expert witness. Formal qualifications provide assurance that those who hold themselves out as expert witnesses are able to demonstrate real understanding of their primary roles and duties. Those who instruct experts also need to be reassured that their experts are 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.

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.

There is greater realisation amongst surveyors today, that when acting as expert witnesses they must possess essential legal knowledge and practical skills and be confident in writing reports and giving oral evidence in the witness box. All of this, in addition to maintaining their core skills and experience in surveying matters.