SURVEYORS: THE EXPERT WITNESSES

NEW RULES NOW APPLY!

The Royal Institute of Chartered Surveyors is our governing body, whose rules we are obliged to follow and about which we need to tell our clients. The 4th Edition of the RICS Practice Statement was released on 2 July 2014 and there are a few issues that need addressing and points to note that apply with immediate effect. It does, of course, apply across the surveying spectrum but our initial thoughts are primarily concerned with the business rates work we do.

As chartered surveyors actively involved in disputes that often come before Tribunal (and other courts), we find ourselves carrying the roles of an expert witness and advocate. There are two stages - preparation and expert report - that lead up to our attending Valuation Tribunal. We do not need court work to achieve results but we are unable to get the best result without having to go through the court hearing stage - which is where we have to be your advocate as well as the Tribunal's expert.

Our primary duty as an expert witness is not to our Client but to the Tribunal. Our Expert Witness report and evidence must be given accordingly. However, our advocacy and negotiation work are tied-in to your results and this requires very careful handling.

Valuation Tribunal is a ‘lower tribunal’ and acting in a dual expert/advocate role is permitted, as we do in each case. The Practice Statement imposes some requirements on our  taking client instructions, particularly about making our clients aware that we do take on the dual role and how costs should apply. The preparation and hearing costs usually – but not always – result in a financially better outcome. The VO cannot win by default or luck and we therefore 'throw everything at it' in preparation and presentation.

The Conditional Fees section at 10.3 (of the Guidance Note issued by the RICS) states*"It is inappropriate to be remunerated by way of a conditional fee arrangement when acting as an expert witness but it may be an appropriate fee basis when acting as an advocate. When acting in a dual role as expert witness and advocate, where permitted in lower tribunals, a conditional fee basis may be acceptable because it will be seen as attached to the role of advocate. Such a dual role improves access to justice by reducing costs and therefore a conditional fee payment can be supported in these limited and strict conditions".*

What this means in practice is that each case must be assessed carefully on its merits and can’t just go ahead on a results fee-only basis. This is how we at ask-re have always operated and without any problem but the whole issue of costs of representation has just become that little bit more difficult for no-win, no-fee operators.

How this will work out in practice is hard to say but our way of doing things has worked well to date. All we ask is for more settlements by negotiation and fewer cases having to be dragged through court to get the result. We know what we want to achieve for clients and we just need to show that the guidance is being followed, a little more obviously than before.