The Royal Institution of Chartered Surveyors (RICS) publishes separate practice statements and guidance for surveyors acting as expert witnesses and surveyors acting as advocates. The roles are very different and the expert witness publication includes a section that clarifies the differences between them. In particular, an expert witness must be clear where the line between the two roles sits and be very careful not to cross it. If a salutary example is required, a February 2025 High Court decision provided it in no uncertain terms.
The case involved a relatively simple and low value dispute. An estate (acting by trustees, one of whom was a partner in a local chartered surveying firm) had sold some land with planning permission for 20 houses to a developer and there was an argument about whether the developer had complied with its contractual obligations to “procure” that the access roads were adopted by the highways authority. There was a practical problem in that the planning permission included roads that could not be built to adoptable standard and the planning consultants acting for the estate – which happened to be the same firm of which one of the trustees was a partner – had confirmed to the local planning authority that the roads would remain private and would not be adopted.
The developer had asked the highways authority to adopt the roads but, because they had not been constructed to an adoptable standard (and because the planning consultants had previously confirmed they would not be adopted) the highways authority refused to adopt them. There was no dispute that the developer had not therefore “procured” the adoption of the roads and, in that respect, was in breach of contract. However, the developer argued that its obligation to build out the roads in accordance with the planning consent (which was for private roads that were not to an adoptable standard) was incompatible with its obligation to procure that they were adopted and asked the court to relieve it of that obligation.
The estate argued that, as a result of the developer’s failure to get the roads adopted, the development value of its retained land had been reduced. It relied on expert witness evidence provided by an expert valuer who had prepared a report that quantified the estate’s loss of value at £24,000. The estate had obtained outline planning consent for a 3 dwelling scheme on its retained land with shared access from the roads serving the development that it had already sold. However, the expert’s figures were based on a scheme for 20 dwellings for which planning consultants in his firm had drawn up plans at his request. The expert had also made some assumptions based on another unrelated development scheme about the extent to which the lack of adopted roads in that scheme had reduced its value.
The expert was another partner in the same chartered surveying firm as one of the estate’s trustees, and had been involved in the planning work that obtained the planning consent for the land that had been sold. He declared that in his report and the judge agreed with him that that did not mean that he was not able to be an impartial expert witness. However, the judge was highly critical of the fact that the expert had, in effect, created the factual evidence on which his valuation was based by instructing his own firm to prepare plans for a 20 dwelling scheme on the estate’s retained land instead of preparing his valuations on the basis of the consented 3 dwelling scheme. It was also established as a result of factual evidence that the assumptions the expert had made about the reduction in value of the unrelated development scheme were not correct. Further, the judge was highly critical of the way in which the expert conducting himself in giving oral evidence and, after giving 10 examples of his poor behaviour, concluded that he was acting as an advocate and not an expert witness and withdrew the court’s permission for the estate to rely on any of his evidence. As a consequence, she awarded a token £1 to the estate as damages for the developer’s breach of contract.
