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The Revised Practice Statements and Guidance
Notes for Chartered Surveyors Acting as Expert Witnesses and
Advocates. The Branch had the benefit of a presentation by Nicholas Cheffings in respect of the Revised Practice Statements and Guidance Notes for Chartered Surveyors Acting as Expert Witnesses and Advocates on the aforementioned date. The evening was quite well attended and to my mind very well presented. Nicholas commenced with the submission 'that this may not be the most riveting 45 minutes or so' and the anticipation might have been such that this would be a little dry. However, this presentation proved to be a useful analysis and I don't doubt served to focus the mind of those amongst us that act as expert witnesses, particularly those that might do so on an occasional, rather than dedicated basis. It could be suggested that I found this particularly interesting as currently a large percentage of my work is concerned with acting as an expert witness. This said I think it was fair to say that there was a generally high level of interest that developed as the presentation progressed and I suggest that this was demonstrated by the quite high level of varied questions arising at the end. Nicholas identified that two Practice Statements were about to be published by the Royal Institute of Chartered Surveyors (RICS), they are due to be published by the end of September and will be effective from 1st November, 2008. One will be in relation to Chartered Surveyors acting as expert witnesses and the other to Chartered Surveyors acting as advocates. Starting with the Expert Witness Practice Statement I think it is true to say that whilst much of what is set out in the proposed Practice Statement is something that expert witnesses are aware of as a matter of good practice and comply with in any event. There were some useful reminders and perhaps enlightenment for some of our members that do not practice as expert witnesses. For example, Nicholas reminded us that the expert's primary duty is to the Tribunal and that overrides any duty to the client. In my experience this is something that our lay clients still struggle to understand. It was highlighted that as a general principle an expert witness cannot be held negligent for work preliminary to, or the giving of evidence to the tribunal. However, Nicholas went on to highlight the case of Phillips v. Symes (2004) EWHC 2330 and the potential for the utilisation of a wasted costs order. The possibility of an expert witness being held to be in contempt of court and the potential for disciplinary proceedings from professional institutions such as the RICS for breach of the Practice Statement. An interesting suggestion was made and that is that the immunity of the expert witness may erode such that it will be non existent in the next five or so years. This is a suggestion which could potentially have many consequences and one to which I would invite reader's comments if they are so minded. Would this essentially be a good or a bad thing? It was made clear that an expert witness should not exaggerate, obscure or fail to address an alternative opinion. Not least as he/she could be reported, assuming they are a member, to the RICS for failure to comply with the Practice Statement. I have seen a number of reports that largely ignore an alternative opinion in the past and to the extent that it continues to exist, hope that it is improved upon. Nicholas highlighted the fact that it was permissible for an employee to be an expert witness on behalf of his/her employer in a disputed matter, but it was considered that an independent, rather an individual with no connection to the employer should be preferred. The subject of conditional fee arrangements was discussed and the need for disclosure of any such agreement to be stated. From a personal perspective I have a great deal of difficulty with the suggestion that these should be permissible for experts or surveyor advocates in any event. The second part of the presentation considered surveyors acting as advocates and it was stated that this could principally be of beneficial when the value of the dispute was low and it would be disproportionate to deploy two people i.e an expert and an advocate. It was highlighted that a benefit existed to clients' insomuch that a surveyor advocate would clearly understand the matter and deploy his/her expertise in the advocacy. Nicholas made is clear that an expert witness forms an independent view and an advocate tells the story to suit his/her client's position. Further clarified Nicholas pointed out that an advocate cannot lie and has a duty to be honest. However, he/she, unlike the expert witness, does not have an overriding duty to the Tribunal and can therefore be selective in that which is revealed to the Tribunal. By contrast the expert witness should reveal all. I found this an interesting presentation, I think that the RICS have done well in being proactive and whilst I accept that some of this is already well known and rehearsed anything that serves to maintain or indeed improve the quality of expert witnesses and/or advocate surveyors should be applauded. The presentation ended with some interesting questions and the recounting of the experiences. On behalf of the Branch I would like to thank Nicholas for his presentation which was well prepared and indeed received. Mr Kevin M Trash Report by kevin M Trash |
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