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The chartered surveyor as an expert witness

by DEWI PRICE, Chartered Surveyor

UNTIL SOME 10 years ago it was common for Chartered Surveyors to arrive at a Court Hearing with very differing views. In matrimonial cases for example, one party would usually aim for a high valuation of the matrimonial home, and unsurprisingly the other (the buying) party would advocate a low valuation. Two valuers, with equally contrasting figures, usually put the Judge in some difficulty.

Since Lord Wolff’s report on ‘Access to Justice’ led to the Civil Procedure Rules, from 1999 the world has changed for expert witnesses who provide evidence on a wide range of matters and disciplines.

 

The skills of the legal profession ensure that cases are well advocated – the ‘hired guns’ aiming for the best deal for their clients. In land and property disputes, todays values mean substantial sums are at stake, so the role of the valuer and surveyor is crucial.

The CPR rules, and following closely to them, the Guidance Notes and Practice Statement from the RICS, mean that Chartered Surveyors must now give evidence which is impartial and unbiased, and especially uninfluenced by the party instructing or paying for that evidence. It is not uncommon for disappointed clients to query the nature of the surveyor’s advice, but ultimately a hopeless case is best well identified at the outset, rather than months (or even years) later with obvious cost implications.

The role of the Chartered Surveyor has thus evolved and many companies now have specialists with individual skills and experience. The witness box is not for the faint hearted. Disputes are varied – surveyors can forensically examine boundary problems and building disputes, valuers can assess the worth of all types of land and properties with all types of problems and issues. In times of recession, lenders invariably try to offset losses by claims of negligence against the values placed when times were good, so retrospective valuations have been very popular in the current recession, especially with the advent of ‘confetti’ letters from no win no fee lawyers.

The CPR rules see that the two experts must now meet to address the issues. It is common for valuers who reach conclusions from their own assembled comparable evidence, to narrow the gap by negotiation and the consideration of further evidence.

Memorandums of agreement (and disagreement) then follow to assist the court in narrowing the issues. The results of the experts meeting can sometimes limit the solicitor’s negotiations, but the rules forbid any undue ‘pressure’ to be put on the experts. Solicitors are allowed to attend experts meetings, but not to intervene, except to answer questions put to them by the experts, which has led to some interesting discussions!

In the old days, the flow of legal aid saw many cases drag for years and only settled on the steps of the courtroom. The costs of litigation today remain immense but it is clear that the CPR rules have now created the opportunity of early settlements, aided by unbiased reporting from experts.

The emergence of the role of the Chartered Surveyor as an Expert Witness has undoubtedly enhanced the profile of valuers and surveyors in the eyes of the public.

Last Updated on Wednesday, 17 October 2012 11:51