Construction and property disputes often involve complex technical details, contractual disagreements and significant financial stakes. When these disputes escalate to formal legal proceedings, clarity and objective analysis are essential.

An expert witness is not just a regular witness. They are qualified professionals whose opinions help resolve disputes. Their duty is not to the party that hires them but to the court. This blog post explores how expert witness surveyors assist in resolving construction disputes, from offering initial insights to testifying in court. We will look at their roles, the significance of their reports and their critical obligation to remain impartial.

An expert witness surveyor is a specialist, often a chartered surveyor with extensive experience in fields like building surveying or quantity surveying. They provide expert opinions in legal cases, primarily helping courts and arbitration panels understand technical quantities and costs that the average person may not grasp.

Their role is defined within the Civil Procedure Rules (CPR), which guide how expert witnesses should operate. The primary duty of an expert witness is to offer independent and objective analysis to the court, regardless of who engages them. They are not a "hired gun" for one side; their opinions must stem from the evidence available and their specialised knowledge. This impartiality is crucial for their credibility and the weight of their evidence.

Expert witnesses in construction disputes have various responsibilities. They often become involved early in a potential claim, providing initial advice on the case's merits. Their early participation can help legal teams craft strategies and even promote settlements before issues escalate.

Key responsibilities include:

- Investigating the issue: This might include site visits, examining project documents and analysing construction practices against industry standards and building regulations.

- Providing objective analysis: The expert uses their technical knowledge to develop a professional opinion on issues like the cause of a defect, the quality or the value of work.

- Preparing expert witness reports: This formal document outlines their findings, reasoning and conclusions, serving as a crucial piece of evidence.

- Attending expert meetings: They meet with opposing experts to identify points of agreement and disagreement, often clarifying the issues in dispute.

- Giving evidence in court: If the case goes to trial, the expert will be called upon to provide oral evidence and undergo cross-examination about their report.

Choosing the right expert witness can be pivotal in a construction or property dispute. The ideal expert brings more than technical skills; they must also communicate complex issues straightforwardly and endure the pressures of legal proceedings.

A strong expert witness typically has:

- Deep technical expertise: They should have a proven track record and extensive experience in the specific area of the dispute, whether it's building surveying, structural engineering or quantity surveying.

- A clear understanding of their duty: They must recognise that their primary obligation is to the court, not the party that instructs them. This impartiality is non-negotiable.

- Excellent communication skills: The ability to explain technical points clearly is vital for their evidence to be compelling.

- Experience in legal proceedings: An expert who has served as a witness will be familiar with the process, from writing reports to facing cross-examination.

- Professional credibility: Membership in a recognised organisation, like the Royal Institution of Chartered Surveyors (RICS), adds authority and shows adherence to professional standards.

The expert witness report is one of the most critical documents in resolving construction disputes. It is a detailed formal paper that presents the expert’s opinion, the facts supporting it and the reasoning behind their conclusions. This report must be thorough, organised and comply with the Civil Procedure Rules.

A typical expert report will include:

- The expert’s qualifications and experience.

- A summary of the instructions they received.

- A list of all evidence and documentation they considered.

- A clear statement of all facts and assumptions on which their opinion relies.

- Their professional opinion on key quantum/technical issues.

- A summary of their conclusions.

- A declaration confirming they understand and have fulfilled their duty to the court, tribunal etc.

This document enables all parties, including legal teams and the judge/tribunal, to understand the quantum/technical matters at the heart of the dispute. A well-prepared report can provide clarity, bolster a client's case and sometimes even lead to an early settlement.

Expert witnesses are called to assist in various construction and engineering disputes. Their specialised knowledge is essential for clarifying technical issues and determining responsibility.

Common areas of dispute include:

- Poor craftsmanship: Assessing if work quality meets contractual requirements and accepted industry standards.

- Professional negligence: Investigating claims against professionals like architects, engineers or project managers for not exercising reasonable skill and care.

- Building regulations compliance: Determining if construction complies with statutory requirements, a common source of conflict.

- Valuation disputes: Quantity surveyors often act as expert witnesses in disputes over costs, changes or loss and expense claims.

- Boundary and property disputes: Building surveyors can provide expert analysis in neighbourly disagreements over property lines, rights of light or party wall issues.

In each case, the expert witness provides the objective analysis necessary to dispel subjective arguments and focus on the facts.

An expert witness's journey in a legal case follows a systematic path. Once engaged by one party, their first step is to review all available evidence. This helps them form an independent view of the technical issues.

After submitting their expert witness reports, the court or tribunal usually directs experts to meet. During these meetings, they discuss their opinions with opposing experts to find areas of agreement and disagreement. The result of this meeting is a joint statement presented to the court, which helps refine the issues to be decided at trial.

If the case does not settle, the expert witness must be ready to attend court or arbitration hearings. There, they will provide expert testimony and may face cross-examination from the opposing party's lawyer. This rigorous test of their report and opinion examines their credibility, impartiality and technical expertise.

The importance of the expert witness’s overriding duty to the court cannot be overstated. This principle ensures expert evidence serves justice, not litigation. An expert perceived as biased or acting as a "hired gun" will quickly lose credibility, and the court may disregard their evidence.

This duty requires the expert to consider all evidence, not just the information that supports their client's case. If their analysis leads to an outcome unfavourable to the instructing party, they must report it. This commitment to impartiality is fundamental to the expert witness system and makes their contributions to resolving construction disputes invaluable.

Construction disputes are inherently complex, blending technical, contractual and legal challenges. Expert witness surveyors bring clarity to this complexity. By providing independent, objective and well-reasoned analysis, they help courts and tribunals make informed decisions based on a solid understanding of the technical issues at hand.

From offering an initial professional opinion to preparing solid expert reports and facing cross-examination in court, their role is crucial for fairly and effectively resolving construction disputes. For any party involved in a construction or property dispute, engaging a credible and experienced expert witness is more than just a strategic move; it is a vital step toward achieving a just outcome.