One area of professional practice service undertaken by Chartered Mineral Surveyors that differs quite significantly from regular client advice is acting as an Expert Witness. The legal implications of any Expert Witness appointment mean that the nature of taking instructions, responsibilities to the client, the approach taken in considering the case and final reporting is strictly controlled.
An Expert Witness can be anyone with knowledge and expertise in a particular field that is beyond that expected of a layman. Expert reports are required in advance of / support of a legal dispute such as a valuation dispute, contractual dispute, matrimonial settlement or rent dispute amongst others. Such appointments can come from one side in a dispute with other Experts providing the opinion on each side (or multiple sides). Alternatively the Expert can be appointed by both sides and acts as a Single Joint Expert. The first significant difference in the nature of the instruction is that whilst a client appoint an Expert, the Expert’s duty is SOLELY to the Court, Tribunal or Arbitrator. That duty over-rides any duty to the party instructing them or paying them. The Expert’s role is not to act as an advocate or to argue the case of the party involved in dispute, but only to give their opinion to the Court based on all the facts they have been able to determine in the case. The Expert is fully impartial and cannot ‘ignore’ evidence even if the party paying the bill does not want it to be considered! In the first stage of the process, a completed Expert report will be shared with the other party to the dispute and vice versa.
How far into the process an Expert Witness will be involved will depend on the nature of the dispute and whether settlement can be achieved through other means, mediation for example. Ultimately though, if settlement is not reached it may be that the Expert will be called upon to appear in Court or Tribunal to give evidence and to be cross examined on it. Accordingly the parties’ selection of their Expert Witness and the strength of their experience in the dispute at hand is critical in giving instructions as not only would an inexperienced Expert be unable to present robust evidence, but also some have been shown to be inexperienced in the legal process itself potentially exposing a lack of impartiality.
RICS members acting as an Expert Witness are required to follow the mandatory RICS Practice Statement “Surveyors Acting as Expert Witnesses’ and ideally follow RICS approved training in order to be included on the RICS Register. Depending on the Court or Tribunal the Surveyor must also comply with (and fully understand) their particular rules.
Before taking an Expert Witness instruction, Chartered Surveyors with a broad professional experience should seriously consider whether they have sufficient depth of knowledge in the particular subject at issue.
Matthews & Son LLP have had many years in acting as Expert Witnesses and Valuers on a range of disputes related to the minerals and waste management sector. These have included planning appeals, rent and royalty disputes, compensation and compulsory acquisition valuations, matrimonial settlements and contractual disputes in various levels of Court or Tribunal as well as through the Arbitration process. It is always hoped that Court is a matter of last resort and we have presented evidence in the mediation process as part of Alternative Dispute Resolution. However, no matter the case we do not take our responsibilities lightly either in terms of reporting, impartiality and, importantly, not taking instructions on matters we do not feel we have the necessary expertise.
If you have a need for an Expert Witness in the specialist property areas of minerals extraction and waste management, do not hesitate to contact us.
Expert Witness, Litigation and Dispute Resolution