Following the publication of new RICS guidance for surveyors acting as expert witnesses, Tony Eden considers the boundaries of the role
On 4 April 2014 the RICS published the 4th edition of its practice statement and guidance note –Surveyors acting as expert witnesses – which came into effect on 2 July 2014.
Practice statements are mandatory for RICS members, whereas guidance notes are recommended good practice. Both cover issues not discussed here, such as relationships with clients, advising advocates and the basis of charging fees in litigation, which require further reading.
Scope of the role
Paragraph 1 of the guidance note helps to distinguish the various roles that a surveyor may have, and the practice statement will only apply when the witness is acting as an expert. A witness of fact can only state the facts within the knowledge of the witness: “This role does not include the expression of an opinion which is the domain of the expert witness. You should fully understand this fundamental distinction and are advised to ensure you recognise each role’s distinctiveness. In addressing questions of fact and opinion you should keep the two separate.” (Paragraph 6.1).
The role of the advisor/negotiator in giving advice to a client before a tribunal hearing is not governed by the practice statement but it is important to note that any such advice may not attract legal professional privilege and may be disclosed to a tribunal later (paragraph 1.3). The solution suggested is to give advice orally or on a “without prejudice” basis to another expert.
The biggest distinction, however, is between the roles of a surveyor advocate and expert witness. The duty of an advocate is solely to the instructing client and is dealt with more fully in the RICS publication Surveyors acting as advocates, but the practice statement expects professionals to ensure at all times that submissions are clearly distinguished from evidence as expert witness (paragraph 17.8).
The member of the Lands Tribunal made this observation in W and RR Adam Ltd v Hockin (VO) [1966] RA 339: “The position of an expert is quite different from and not always compatible with that of an advocate. It goes without saying that the duty of the advocate is to present his client’s case as best he may on the evidence available whereas the expert witness is there to give the court the benefit of his special training and/or experience”.
Paragraphs 2.1 to 2.4 of the practice statement clearly state that for an expert witness: “Your overriding duty as an expert witness is to the tribunal to which the expert evidence is given. This duty overrides any contractual duty to your client. Your duty to the tribunal is to set out the facts fully and give truthful, impartial and independent opinions covering all relevant matters, whether or not they favour your client.”
Paragraph 5.2 of the practice statement reminds valuers that they must maintain professional objectivity and impartiality at all times, and their evidence should be an independent product uninfluenced by the pressures of litigation. These themes occur time and again throughout the practice statement and guidance note.
The dual role
The problem of separation of roles becomes more acute when the surveyor appears in two roles, both as advocate and expert witness, as is often the case in rating appeals before the Valuation Tribunal.
The dual role has the advantage of minimising costs to the client or, in the case of rating, the statutory officer employed by the Valuation Office Agency. However, there is a conflict between the role of the advocate as advancing the argument that best promotes the client’s case and the primary duty of the expert witness to the tribunal, and the distinction in roles is hardest to make when rebutting evidence of the other expert when there is a danger of slipping between the roles.
Paragraph 17 of the guidance note offers suggestions for distinguishing roles, but the best approach is simply to inform the tribunal when switching from advocate to expert witness, which will also assist the other party in deciding what questions can be put in cross examination.
Duties of the expert
The duties and responsibilities of the expert witness are set out in the seminal case of National Justice Compania Naviera SA v Prudential Assurance Co Ltd (Ikerian Reefer) [1993] 2 EGLR 183, which is described in the practice statement at paragraph 1.9. The essential points are:
- evidence must be independent product of the expert uninfluenced by “the exigencies of litigation”;
- the expert should give an objective unbiased opinion relating to matters within his/her experience;
- facts and assumptions on which the opinion is founded should be stated. Facts which detract from that opinion should not be omitted;
- make it clear when a question or issue falls outside his/her expertise;
- declare an opinion is provisional if research is incomplete;
- be ready to reconsider an opinion after reading the expert report of the other side; and
- communicate this to the other side, and when appropriate, to the court.
Opinion must be justified by evidence, be soundly based and address all non-legal issues before the tribunal, including the evidence of the other expert witness. The expert must comply with the rules and procedures of the court. In the case of rating appeals, for example, this will be the practice statements issued by the President of the Valuation Tribunal for England (VTE). Duty to the court will take precedence over any contractual, professional or other duty, even if it conflicts with confidentiality agreements (paragraph 6.2).
Evidence given by the surveyor acting as expert witness must not be selective, and if the witness fails in this duty there could be repercussions both as regards the weight given to his/her evidence and costs.
In Abbey National plc v O’Hara (VO) [2005] RA 247 the expert witness for the appellant failed this test completely. The case concerned principally how to value a bank in a corner unit with return frontage by use of the zoning method, and in the opinion of the member not only was the evidence of the appellant discredited by its partiality and selectivity but unusually the respondent valuation officer was awarded his costs in a simplified procedure case when it would be the norm for each party to pay their own costs.
The role of the expert witness will also be to agree facts and narrow down the issues with the other side (paragraph 2.1), provide a range of opinions, help the client and/or advocate to assess the merits of the case and assist with its preparation, and assist the court with its inquiries.
An expert will be required to carry out such factual research as necessary, including an inspection of the premises, where appropriate (paragraph 6.3). Failure to personally inspect a property and rely on the measurements and observations of others can at best put the expert at a disadvantage compared to the expert for the other side and, at worst, can undermine the case if the facts are challenged. Incomplete knowledge of the facts should always be brought to the attention of the tribunal (paragraph 7.1).
The expert report
Whether acting for a client or an employer/statutory officer, the expert will have to prepare an expert report, and if the case proceeds to a hearing, give oral evidence before the tribunal. Paragraph 5 of the practice statement and paragraphs 12.1 to 13.5 of the guidance note refer to preparation and content of the expert report.
In general terms the report “should ideally be presented in an organised, concise and referenced way, distinguishing (where possible) between matters of fact, observations on those facts, and inferences drawn from them”. Often it will follow a standard template with clear headings, comparables should contain full analysis and be summarised, if necessary, and the valuation should be clear and contain an explanation of how the conclusions on which it is based were derived. Facts and opinions must be kept separate, and the report should deal with the evidence presented by the other expert witness.
Evidence must never be selective and a surveyor must always address the weak points in a case. If a comparable does not support the valuation, explain why: such as situated in a different locality, of different age or construction, very different in floor space size. A generous use of photos is helpful to the tribunal. The RICS declaration must also be included in a report and be signed and dated.
The expert witness surveyor may then have to perform in a presentation role before the tribunal and paragraph 10 of the guidance note gives assistance on this point. Preparation is the key. A surveyor should always prepare possible questions for cross examination of the expert witness for the other side, but be flexible to adapt to evidence as it is given. Key documents, such as a form of return for rating purposes (valuation officer), or a copy of the lease (if acting for an appellant), should also be to hand in case of a challenge.
Sound advice for the hearing
The VTE in practice statement D1 states that: “The tribunal expects professional representatives… to conduct themselves in accordance with the rules and practices of their professional body, to behave ethically and to treat members, staff and other parties with due courtesy”. Paragraph 2.7 of the RICS practice statement gives an instruction that “you must not malign the professional competence of another expert witness… comments should be focused on the facts, interpretation of data and analysis of opinion”.
This is sound advice. Professionals can draw the attention of the tribunal to the biased nature of evidence being presented, or to a lack of experience or knowledge of the opponent, but this can be a dangerous tactic and can turn the sympathy of the tribunal away from the case being presented. As a golden rule, never interrupt another expert witness unless it is to draw the attention of the court to a procedural irregularity such as new evidence not included in the other party’s statement of case.
The outcome is never certain in litigation but if the requirements of the new RICS practice statement and guidance note are followed, it is unlikely that a client will have cause to complain.
Further reading
|
Case |
Relevance |
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W and RR Adam Ltd v Hockin (VO) [1966] RA 339 |
Distinguishing the roles of advocate and expert witness |
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National Justice Compania Naviera SA v Prudential Assurance Co Ltd (Ikerian Reefer) [1993] 2 EGLR 183 |
Duties and responsibilities of the expert witness |
|
Abbey National plc v O’Hara (VO) [2005] RA 247 |
Selective and biased use of evidence by the expert witness |
Tony Eden BSc (Est Man) FRICS DipRating is a senior rating consultant at CVS
