When members of the public are in dispute, this can often lead to legal proceedings. For the courts to understand the technical aspects of the dispute, they will often instruct the disputing parties to appoint an expert. (The Expert Witness).
The expert’s primary job is to give an opinion on the contested issues. The facts of the case should have been established by the witnesses of fact provided by each party to the dispute, although of course the expert may turn up new evidence in the course of their investigations. Since it is an opinion, it is not uncommon for different experts to give different opinions. If the matter goes to court, the court will want to know the relevant qualifications and experience of each expert so that it can weigh up the authority of each.
Consequently it is a false economy to choose an expert solely on the basis of cost, since the evidence of a poorly qualified and/or experienced expert may easily be given less weight than that of his opponent. Also, writing an expert report and then justifying it under pressure in court is not easy, and experience is extremely valuable.
Under the Ministry of Justice Civil Procedure Rules (CPR), it is the duty of an expert to help the court on matters within his own expertise (rule 35.3.1). This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid (rule 35.3.2)
What the Rules say:
Rule 35.7(1) provides that “where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only …”
Rule 35.7(3) states that “where the instructing parties cannot agree who should be the expert, the court may –
(a) select the expert from a list prepared or identified by the instructing parties; or
(b) direct that the expert be selected in such other manner as the court may direct.”
Under Rule 35.8(1), each party may give instructions to the single joint expert; under Rule 35.8(4), before such an expert is instructed, the court may –
(a) limit the amount that can be paid by way of fees and expenses to the expert; and
(b) direct that the instructing parties pay that amount into court.
Therefore an expert is required to assist the court by providing objective, truthful and unbiased opinion on matters within his expertise, and should not assume the role of advocate. An expert should consider all material facts, including those which might detract from his opinion. In particular, it must not be biased towards the party who is responsible for instructing or paying the surveyor. The evidence should be the same whoever is instructing the expert or paying for the evidence” (para.2.3).
The court will only allow a specified number of experts on each side. This is to maintain the principle that the costs incurred must be proportional to the value of the case.
The court can also direct that expert evidence on a particular issue be given by one expert only (known as the “Joint Single Expert”).
This may come as a surprise to many members of the public. Surely, if someone pays an expert to make a case for them, the expert should do the best possible job for them? The answer is that, even though they pay the expert, his first priority is to assist the court. He is obliged to discuss all aspects of the case within his expertise, even when this goes against what the client wants him to say. Ultimately this is in the best interests of the client, since it is better to know the real strengths and weaknesses of a case early when something can be done about them, rather than have them exposed in court when it is too late.
Many experts will be members of professional bodies such as the Royal Institution of Chartered Surveyors (RICS), such as ourselves, and will also be subject to their rules.
In summary, the role of the Expert Witness is not easy. He must be able to explain complex technical matters so that all can understand. He must put his duty to the court above his natural desire to please his client. And finally, where boundaries are involved he must be an accomplished diplomat in order to calm the inevitable tensions which arise between feuding neighbours.
As Chartered Building Surveyors, Chartered Valuation Surveyors and Members of the Chartered Institute of Arbitrators, we have acted as Expert Witnesses in many legal disputes, contractual between client/builder, boundary disputes etc. some of which end up in court.
Alternative Dispute Resolution
Alternative Dispute Resolution is, as its name suggests, an alternative way of resolving disputes without going to court.
Some forms of contract for building works stipulate an alternative method of resolving disputes.
The main forms of ADR are mediation, adjudication, and arbitration.
We have acted for acted for clients under contract where ADR has been the method of solving disputes, and we have succeeded in obtaining substantial refunds for our clients. We are also members of the Chartered Institute of Arbitrators.