Expert witness: risks of acting as expert advisers and witnesses in the same case

The peril of two hats

27 November 2015

Howard Jenkins explains the risks of chartered surveyors acting as expert advisers and expert witnesses in the same case


Many chartered surveyors are appointed as advisers by clients when their practices are in long-term relationships. They can also be appointed when clients simply require advice throughout projects or processes that have prolonged procurement periods. Such appointments are usually entered into without any indication of the potential for future dispute.

If it then becomes apparent that there is a dispute, with litigation as a possible outcome, it is entirely understandable that these clients will want to instruct their trusted expert advisers (the surveyors) as their expert witnesses. This is because of their particular understanding and knowledge of the matter gained while acting as expert advisers, including the parties’ strategies, plans, costs, errors made along the way, hopes and expectations.

When a dispute even seems a possibility, it is likely that these same surveyors will continue advising, well before they are appointed formally as expert witnesses, not least on the strengths and weakness of their clients' cases. Now is the time to decide whether it is possible, practical and above all, safe, for surveyors to accept new instructions to change role to expert witness; but it may already be too late.

The expert witness

Expert witnesses are usually instructed when a pre-action letter of claim or proceedings have been issued, meaning that a dispute has crystallised. They are then briefed by their appointor (instructing lawyer) and provided with any documentary information (the bundle) that they wish to put to the expert for consideration. Where this is not complete or fully helpful, more documents can be requested. Once the experts have all the documentation they need and have made the necessary inspection(s), they are usually in a position to opine to some degree. This assessment process appears, initially at least, to be very similar to that of an expert adviser's role. As an expert witness, in a dilapidations matter, for example, irrespective of which side has instructed them, the surveyor has to read the lease(and other relevant documents), inspect the property/properties and rather than prepare a schedule of dilapidations or respond to one, assess the one prepared by the landlord's surveyor and the tenant's response to it and then determine in their opinion, what is the landlord's true loss.

Inevitably, expert witnesses have less information than when acting as an expert adviser preparing or responding to a schedule. They certainly would not have been privy to all the meetings and discussions between the client and their advisers before preparation or response.

Having reached their initial conclusions, at this stage they are likely to be instructed to report provisionally. It is to be stressed that by reporting their assessment, it is their role to give their opinion on the matters in dispute rather than advise those instructing them. Expert witnesses' opinions are ultimately for the court.


Inevitably, expert witnesses have less information than when acting as an expert adviser preparing or responding to a schedule. They certainly would not have been privy to all the meetings and discussions between the client and their advisers before preparation or response

Having opined initially, an expert witness may well then be instructed to meet the expert witness for the other side to try to narrow issues that divide the parties. This is known as a joint meeting of experts. They meet without prejudice, without any external influences all other attendees to discuss whatever is considered relevant to their instructions.

The outcome of the meeting is a joint statement setting out what the experts agreed and disagreed and most importantly, why they disagreed. The content of the discussions is not part of this document, only the outcome; the joint statement is issued to the parties and the court.

Disagreement

During the joint meeting, there is no attempt by the expert witnesses to act as advocates; disagreement on a point is discussed and if it cannot be agreed, without any rancour or animosity, this is recorded and remains a disagreement. This would appear to be a very similar process to that undertaken by expert advisers when they meet to try to agree the landlords' true loss. While they do not produce a joint statement for the court, they do of course record their agreement and disagreement on the schedule and then advise their clients.

After the joint statement has been considered by the parties, although there is no obligation on them to accept the experts' opinions, it is my experience that these documents can bring about agreement and early termination of disputes. This is because the parties start to understand what their expert witnesses will be stating in their expert witness reports and therefore the opinions that they will be giving to the court.

If the parties are not persuaded to settle or at least make offers at this stage, the expert witnesses are likely to be instructed to prepare their expert witness reports. These will be the summation of their input to date and will state their opinions on the issues. They will be cross examined in court about their reports to flush out any weaknesses and biased views. In the final analysis, the judge makes a decision based on the expert evidence, assessing the witness's credibility in terms of their honesty, transparency and integrity as well as their expression of understanding of the area of expertise under examination.

Accountability

Although there seems to be little difference between the roles and functions of expert advisers and expert witnesses, their duties and responsibilities are very distinct. Expert advisers usually know more about the subject matter of the disputes than the expert witnesses who follow on behind them. Expert advisers advise their clients and although they must try to achieve the best outcome for them, they are not advocates. It is for the lawyers to argue the legal points, not least in court.

By contrast, expert witnesses give their opinions to those instructing them and ultimately, to the court. Having done so, it is the judge who decides. Expert witnesses are instructed by the parties' solicitors, mindful always of their responsibility to the court and not those who have instructed them.


Expert witnesses owe no allegiance to those on whose behalf they act, unlike expert advisers, and must give their true and full opinions

Expert witnesses do not have immunity from suit after Jones v Kaney [2011] but if they have acted impartially, independently and with integrity, uninfluenced by the exigencies of litigation, they should have no fears. Their only risk is not providing the service to the court that is required; for example, by not complying with a court order, or being partisan. An expert witness can only be liable if they have been negligent, not because the judge has preferred the opinions of the other expert.

Expert witnesses owe no allegiance to those on whose behalf they act, unlike expert advisers, and must give their true and full opinions. In so doing, they must explain both parties' strengths and weaknesses, exposing all that they have learned, good and bad, opine on these facts and frequently the human errors that may have brought about the dispute in the first place, irrespective of where that source may be; no one is spared their gaze.

Often, when the true reality of the expert witness' function is fully understood by the parties, the realisation of risk of the parties' 'secrets' and 'failings' being put into the spotlight in court, delivers considerable gravitas and brings about more rational decision making. Unfortunately, for those parties that have already instructed their expert advisers as expert witnesses, it may be too late to change the outcome.

Howard Jenkins FRICS is Principal of The Howard Jenkins Consultancy, is an Assessor for the RICS Expert Witness Accreditation Scheme and Member of the RICS Dispute Resolution World Region Professional Group Board.

Further information

This feature is taken from the RICS Property journal (November 2015)