Quantity surveyors acting as expert witnesses

As we outlined in the last article, expert evidence is used to help the court when the dispute before the court involves technical or specialist matters that are outside of the court's expertise. Quantity surveyors have specialist expertise to assist the court with the valuation of construction work.

The RICS has a practice statement and guidance note (Surveyors acting as expert witnesses, fourth edition) written for surveyors who provide expert evidence to be relied upon in civil proceedings before a wide range of tribunals. This is used as the basis for this article, and we acknowledge that the practice statement and guidance note are RICS copyright ownership.

The basics

The practice statement and guidance note is an extensive document at 69 pages and covers a wide range of matters, including an expert’s duties, single joint expert appointments, exceptional circumstances where a surveyor-advocate might also act as an expert witness, expert witnesses not accepting instructions that are conditional on the outcome of a case (‘success-based’), and departures from the practice statement.

The guide is divided into two principle sections: there is a principal message section containing practice statements (denoted with a “PS” reference), which is mandatory compliance; and there is a section containing guidance notes (denoted with a “GN” reference), which is recommended good practice.

Why is it important?

It is the duty of every member of the RICS to comply with relevant practice statements, take account of other guidance produced by the RICS in a particular area of expertise, and maintain high professional standards. It is imperative that, as with any expert, surveyors do not stray from the duties of an expert witness by acting in a partial, misleading, or untruthful manner.

When an allegation of professional negligence is made against a surveyor, then any relevant practice statement published by RICS will be considered when determining whether or not a surveyor acted competently. If a surveyor fails to comply with practice statements, then this may lead to a finding of negligence.

It should be noted that ‘Surveyors acting as expert witnesses’ only applies to the provision of expert evidence when appointed as an expert witness, so it would not be relevant if, for example, you give advice on a valuation issue in an advisory/advocate capacity.

Principal Messages

The guide builds on an expert's duties to the court as set out in Part 35 and its accompanying practice direction in that the surveyor’s primary duty as an expert witness is stated as being to the tribunal rather than to your paying client. Any evidence given:

• must be, and must be seen to be, your independent and unbiased product, and fall within your expertise, experience and knowledge
• must state the main facts and assumptions it is based upon and not omit material facts that might be relevant to your conclusions; and
• must be impartial and uninfluenced by those instructing or paying you to give evidence.

There are rules which a surveyor must follow when writing reports and giving oral evidence, amending the content of written reports, or agreeing facts and resolving differences with another expert.

Guidance Notes

There is guidance about how a surveyor acting as an expert witness should communicate with the various parties involved in a matter and, in particular, narrow issues between experts. This is in the interests of both the parties and the court because it allows professionals to cut through the issues, distil the differences, and get down to the reasons why to seek to close these issues where possible.

The guide recognises that surveyors might act as both advocates and experts in their day-to-day roles. This is different from, for example, medical professionals acting as experts who would not act as an advocate. The guide recognises that there may be situations where a surveyor might act in a dual role. This is generally prohibited, but there might be reasons, e.g., cost efficiency, where it is appropriate for a surveyor to act in a dual role.

As well as covering the duties, the guide provides some practical guidance for surveyors and recommends the form and content of a written report, the basis for charging your fees, who has responsibility for paying your fees, and even provides sample terms of engagement.

RICS Practice Alert

In February 2024, the @RICS issued a Practice Alert to all members and candidates globally to remind them of their legal, professional, and regulatory obligations when providing expert witness services. It was considered necessary to address the ‘evident failure’ of some members to comply and to ensure unequivocal adherence to Surveyors acting as expert witnesses. The alert says that once a surveyor’s reputation is tarnished, where their expert evidence is criticised or dismissed, it is difficult, if not impossible, to restore, which consequently impacts the entire profession.

Final reflections

As a quantity surveyor acting as an expert witness, you have duties to the court, your client, and your profession. These are serious, and you need to be aware of and comply with the rules when preparing and giving your evidence. These duties should not be taken lightly because the consequences of not complying can be severe.

In next week’s article, we will look at some key cases relevant to quantum experts.

Keep an eye out for that, and, in the meantime, enjoy the rest of your week!

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