The Surveyor-Function Expert's In Litigation And The Evidence They Provide

1. The roles of expert surveyors providing valuation testimony in Court and the Upper Tribunal are impacted by the requirements imposed on expert witnesses in this article. By way of abbreviation, we'll refer to all tribunals as "the Court."

2. Surveyors are frequently called upon to provide expert appraisal testimony in court cases. The evidence is opinion evidence (though factual evidence can be provided as well), based on the expert's demonstrable competence, of what the expert actually believes will happen in regard to the subjects on which their opinion is requested. The function of an expert is crucial because the Court assumes that the expert is providing the Court with the truthful help it requires to reach a right result. Breach of expert obligations is handled so seriously because it undermines the Court's faith in the opinion evidence presented and puts the Court at danger of reaching an unjust decision.

3. What differentiates an expert from a factual witness is the expert's ability to provide opinion evidence - what something is in the expert's judgment. To decide the dispute, the Court is being asked to adopt the expert's view. That isn't to imply that the Court must accept expert testimony; it certainly doesn't have to – but it will be very helpful. What distinguishes specialists from advocates is that advocates publicly present their client's argument while doing their tasks. They are known to be political within their own standards of conduct. That is not something that an expert witness can be.

4. The Royal Institution of Chartered Surveyors (RICS) has prepared a lengthy but crucial handbook, Surveyors Acting as Expert Witnesses (effective April 2014), which may be found online. A new edition will be released soon. In the preface, Lord Neuberger of Abbotsbury, the retiring President of the Supreme Court and innumerable cross-examiners of valuers throughout his tenure at the Bar, illustrates the need of specialists. The strict criteria of the CPR, Part 35, are intended at an expert providing testimony in court. The website of the Upper Tribunal (Lands Chamber) includes the rules and practice direction for that Tribunal, which, in most but not all ways, replicates the CPR. The Practice Direction's remarks about conditional fees and other matters deserve special attention.

5. Any expert who wishes to provide opinion evidence before a Court or Tribunal must be aware of and follow all of the above rules.

6. The new expert's declaration of truth in PD35, paragraph 3.3, applicable to Court proceedings, exemplifies the greater emphasis on expert testimony. The bolded paragraph, which was apparently believed to be required, is new:

"I certify that I have clearly stated which facts and topics mentioned in this report are within my personal knowledge and which are not." Those that I am personally aware of, I affirm to be correct. On the topics to which they allude, the ideas I've expressed are my real and thorough professional opinions. I understand that anybody who creates, or causes to be made, a false statement in a document confirmed by a declaration of truth without an honest belief in its truth may face contempt of court proceedings."

Expert's Position

7. Experts are only used with the Court's consent, and then only to the extent necessary to resolve recognized difficulties requiring competence. When it comes to valuation, each party often consults its own expert.

8. The Australian case of R v Bonython (1984) 38 SASR 45 may be used to determine if the question is one of knowledge and whether the witness is an expert, as King CJ stated on pages 46–47:

"Before admitting a witness's view as expert testimony into evidence, the court must evaluate and resolve two questions. The first is whether the opinion's subject matter comes within the category of subjects that allow expert evidence. This first question can be divided into two parts: (a) whether the subject matter of the opinion is such that a person with no training or experience in the area of knowledge or human experience could form a sound judgment on the matter without the assistance of witnesses with special knowledge or experience in the area, and (b) whether the subject matter of the opinion is part of a body of knowledge or experience that is sufficiently organized. The second consideration is whether the witness has gained sufficient understanding of the subject via study or experience to render his judgment useful in addressing the difficulties before the court."