The essentials toolkit for dilapidations expert witnesses

As property litigators, we often instruct chartered building surveyors and/or section 18(1) valuation surveyors to act as expert witnesses in dilapidations disputes. The overriding objective of the expert witness is of course to assist the court by providing an independent, specialist opinion on complex building surveying, valuation and lease related issues. Many cases will pivot on the quality and credibility of the expert’s evidence whether it's written or oral.

In this article, we recap on the various parts of the Civil Procedure Rules governing expert witness evidence, highlight some examples of judicial scrutiny and set out our top tips for dilapidations professionals and expert witnesses. 

Civil Procedure Rules Part 35 – a recap

The use of expert evidence in civil proceedings is governed by Part 35 of the Civil Procedure Rules. At its core is paragraph 35.3 which states that “it is the duty of experts to help the court on matters within their expertise and this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid”. 

This is fundamental, and critical. The rest of Part 35 and the accompanying Practice Direction sets out the requirements relating to matters such as how expert evidence is presented, tested and managed. The detailed provisions are designed to ensure that all expert evidence is independent, proportionate and genuinely assists the court.

Judicial findings 

You do not need to delve too deeply into the caselaw archives to find robust judicial commentary critiquing and scrutinising the quality of expert evidence. These comments are critical to understanding the court’s expectations of experts and serve as a salient reminder as to what is required to discharge the overriding objective set out in Part 35.3 of the Civil Procedure Rules.

In the significant £1.1m dilapidations case of Coldunell Ltd v Hotel Management International Limited, evidence was given by two expert surveyors, Mr Lane and Mr Preston. The judge noted that Mr Lane:

"gave his evidence in a forthright and measured manner. 

answered the questions put to him clearly accepting the limits of his knowledge in relation to certain matters. 

was seeking to assist the Court and …well understood that he had an independent role to perform."

She concluded: “I have no difficulty in accepting his evidence as to the condition of the Property at the time the Lease expired”.

The judge’s critique of Mr Preston’s evidence, however, was notably damning:

"Unfortunately, it was plain … that he was arguing the Defendant’s case. This was illustrated… by Mr Preston not answering counsel’s questions, challenging the veracity of the underlying factual evidence presented by the Claimant, relying on argument rather than expert opinion and totally disregarding the merits of the argument being advanced by him.

… the obvious lack of credibility in relation to several of the opinions Mr Preston expressed. For instance… that the boilers were “in good and substantial repair and condition” at the date of termination of the Lease despite the substantial body of evidence to the contrary.

Further, unlike Mr Lane, Mr Preston had not carried out any inspection of the Property …Instead, his opinion was based on his view of the photographs included in the Verismart Report and to a limited extent on the AuditPro Report… The impression given to the Court was that he had taken a very slap dash approach even to the limited evidence of condition that he considered relevant.

It was also unfortunate that Mr Preston misstated to the Court the evidence provided by the Forensic Flooring expert.

… I fully accept the Claimant’s submission that the exercise Mr Preston undertook was that of advocate for “his client” and not that of an independent expert. It follows … that I have not been able to place any reliance on Mr. Preston’s evidence."

Our top tips for expert dilapidations witnesses

Reflecting on the requirements of Part 35 of the Civil Procedure Rules and the findings of the judge in the Coldunell Ltd v Hotel Management International Limited case, our top tips are as follows:

• It's crucial that experts appreciate that their role in court is that of independent expert and not advocate for their client, and at different times during the litigation to demarcate and distinguish between the two roles - e.g. as an expert when preparing a report for the court, and possibly more of an advocate at any mediation.
• No amount of training on how to be an expert makes someone an expert. Relevant experience is everything. By the same token, if a professional hasn’t had any expert witness training/court room experience then they will be vulnerable in the court room.
• Early neutral expert evaluation is, in our opinion, underused in dilapidations claims. If parties want to avoid expensive, uncertain, and time consuming litigation there is much to be gained from seeking an independent non-binding third party opinion on the fundamental issues e.g. whether a roof’s disrepair justifies wholesale replacement in order to facilitate constructive negotiations. This option is well suited to cases where expert evidence is likely to be ordered by the judge.
• If, as is frequently the case, the expert is instructed to undertake a section 18 valuation then they need to be mindful that it is an evolving and complicated area. See our key takeaways from the Peachside case.
• Experts need to be open-minded and willing to reconsider their opinion and keep it under review if/when new evidence comes to light.
• Incentivised fee scales contravene Part 35.3 of the Civil Procedure Rules and the Royal Institution of Chartered Surveyors' Professional Standard for Surveyors Acting as Expert Witnesses (5th edition) which emphasises that "members must not, except in exceptional circumstances, undertake independent expert witness work where their remuneration is based on the outcome of the case, however that might be defined or structured". 
• In the age of social media, solicitors should check that a potential expert has not published anything which could be taken as contradicting the opinion they might give. Experts need to remember that they are consummate professionals both off-line and on-line.
• Finally, experts need to be thorough in their research and carry out inspections where necessary and proportionate if they are to avoid being criticised for taking a “very slapdash approach”. It should be obvious but clearly inspecting the property, at the material times, is key.

Conclusion

An expert witness is not simply a leader in their field; they must also be acutely aware of the professional standards which govern their conduct and the strict requirements of Part 35 of the Civil Procedure Rules. Running through all of this is the golden thread of their overriding duty to assist the court. 

When an expert falls short of these obligations, their evidence risks being deemed unreliable, as starkly illustrated by the treatment of Mr Preston’s evidence in the Coldunell Ltd v Hotel Management International Limited case. The stakes could not be higher. In this context, excellence is not a desirable attribute, it's essential.

For further information, please contact our property disputes team.