In this article Julian Record explores what makes a good RICS expert witness in relation to property and construction related disputes. RICS refers to the Royal Institution of Chartered Surveyors.
When a dispute arises between two parties it is rather unsurprising that good advice should be obtained. There are a number of reasons why this is crucial.
Firstly, the expert needs to determine that there are reasonable grounds for the dispute to have arisen in the first place and for legal action to be pursued whatever form that takes. One must be aware that the overriding duty of any RICS expert witness is to the court or tribunal so an impartial assessment needs to be made before events progress too far, not least to protect the party they are representing against being liable for the costs associated with an unsuccessful action. This can be tricky for a professional who is not familiar with their duties in line with Practice Direction 35 of the Civil Procedure Rules (CPR), as their natural inclination might be to produce an opinion resembling their clients position and not considering alternative viewpoints. One way to keep legal costs to a minimum is to appoint a single joint expert to assess the dispute on behalf of both parties and report accordingly. Often this is mandated by the court if no experts have been engaged as is often the case with small claims. This is much less common on larger disputes.
Secondly, the RICS expert witness then needs to determine the most reasonable course of action to rectify the alleged issue. There is a famous case which neatly illustrates this point, Ruxley Electronics & Constructions Ltd v Forsyth [1996] AC 344, where a swimming pool was constructed which was shallower than that detailed within the contract. Forsyth, claimed the full cost of rebuilding the pool, but it was found that Forsyth could not recover the cost of re-building because this would be totally out of proportion to the loss he had suffered. This principal remains an important consideration.
Thirdly and finally, the RICS expert witness may need to help quantify the loss which has been suffered. This is very much linked with the principal established by Ruxley and will often draw on expert valuation advice on the diminution in value, which has been suffered as a result of the ‘defect’. Put simply this is the difference between the value of the property in good repair with no ‘defect’ or ‘damage’ suffered and the value of the property with the ‘defect’ or ‘damage’. The loss which has been suffered is therefore the difference between the two values. There remains hot debate around this whole subject area and crucially how the diminution in value is calculated, which will be the subject of another article.
The problems
This all seems reasonably straight forward enough, but the problem with disputes is that once they arise then there is often a drive to build the Claimant’s case beyond what the dispute may have originally been about and this can lead to over exaggerated claims and by extension extreme measures being required to then rectify the issue(s).
This is then compounded by the appointment of a professional possible on a low cost basis and without the necessary skills and experience to present the case in line with their duties in accordance with the CPR rules. This can lead to a very polarised opinion which does not really serve the Claimant. Yes, a Claimant will like the fact that the RICS expert witness agrees with their position, but they will not like it when that position is later undermined by another RICS expert witness. It is therefore incumbent upon the expert to get the heart of the matter, undertake a thorough analysis of the issues, provide a range of opinion on the issues at large and culminating in their opinion.
I routinely prepare expert reports on behalf of defendants and all too often the expert reports produced for the Claimant have not thoroughly assessed all the issues in a balanced manner and make recommendations accordingly. I recently encountered an ‘expert report’ which was produced by a surveyor who had still not qualified to become a member of the Royal institute of Chartered Surveyors (RICS), had relied heavily on presentations made by the Claimant and had clearly not fully evaluated all the issues. The expert might well find themselves the subject of judicial criticism – not a position anyone would enjoy! – and in extreme circumstances a cost order against the expert or claim for professional negligence.
In another case, I represented a defendant builder who was being sued for £110,000. The case was settled at £31,000 (excluding legal costs), which was much closer to my assessment of the damages than the Claimant’s expert witness. In this instance no judicial criticism was made but, is is clear from the judgement that the judge largely agreed with my assessments and I don’t think the Claimant would have been pleased with such a savage reduction in the claim having assessed the figure at a far higher amount.
So in summary, you should only engage a suitably experienced professional to act as a RICS expert witness. You should obtain a copy of their CV and a summary of the cases in which they have been involved. Ideally a reference also. They may also be able to provide you with a redacted copy of a previous report they prepared to illustrate how clearly the report would be presented and its overall quality. Organisations such as The Academy of Experts vet their RICS expert Witnesses so this can be a good place to find an Expert witness also.
Julian Record is a Chartered Building Surveyor, Chartered Project Manager and Registered Value with the Royal Institute of Chartered Surveyors. Julian is also a Member of the Academy of Experts and UK Register of Expert Witnesses and has 25 years experience in practice. Julian regularly acts as a RICS expert witness preparing CPR compliant reports either as a single joint expert or a party appointed (sole) expert in relation to professional negligence, building and construction disputes, neighbourly matters and housing disrepair. Instructing solicitors include Weightmans, Clyde and Co, Trowers & Hamlins, Irwin Mitchell, CMS Cameron McKenna, DAS, DLG, DWF, Clarkes, Terry Jones, Lanyon Bowdler and Graham Withers.
Some of the cases in which Julian has acted include the mis-identification of non-traditional housing, mis-identification of asbestos, mis-identification of structural damage, failure of the project manager to identify the sub-standard construction of some playground equipment leading to a life changing accident, failure of the project manager to identify the boundary position on a greenfield commercial development as well as several building disputes, housing disrepair and neighbourly matters.
If you would like to discuss a case then please contact Julian via the link and he would be delighted to help.