Members must consider risks and duties of expert witness services

Before accepting expert witness instructions, RICS members must first understand exactly what these entail and consider any risks: the role can be incredibly challenging and complex. 

Members need to understand the risks of non-compliance with RICS standards.

Surveyors can, for instance, be ordered to attend court, where they are exposed to intense questioning and scrutiny. 

Before accepting any instruction, therefore, members need to understand the associated costs in terms of time and money as well as the scrutiny that the role brings.

RICS had received numerous concerns from various tribunals over the conduct of experts and published this alert in response.

By way of example, a landmark decision by the UK Supreme Court (responsible for cases of significant public or constitutional importance) ruled in Jones v Kaney [2011] UKSC 13, that expert witnesses can be held liable for damages for negligence, overturning 400 years of immunity.

In April 2025, RICS issued a further practice alert on the matter, dealing with particular concerns about experts working in housing disrepair.

Offerings in this service line have grown rapidly in recent years, and the standards of reports and members' conduct has been very concerning.

Particular concern is raised by RICS about surveyors using pre-formatted reports, including those prepared by others, e.g. support staff, non-trained surveyors, non-regulated surveyors or designated experts.

In addition, surveyors have been found to be accepting success-based fees for serving as expert witnesses, which is in strict breach of RICS rules.

Experts should be able to demonstrate they are competent and skilled, because without training in expert witness conduct, they will have very little defence should they be challenged. Such training is necessary to ensure they understand legal process, the applicable rules and the expectations on them.

Anyone considering expert witness work must also acknowledge their duty is to the court rather than their client, even though it may seem peculiar to be appointed and paid by a party the expert could end up disagreeing with.

Even if the parties do not anticipate a case going to court, disputes can escalate and arrive at this point.

Potential disputes should also be considered early on when deciding whether to take on instructions, because these may affect the position of an expert at a later date. Expert witnesses could, for instance, be asked by a tribunal to give evidence and face questioning.

Despite being appointed by a specific party to a claim, the expert must discard this and any potential or perceived bias. They must focus on the questions asked of them in order to provide facts and informed opinions to the court.

When doing so, it is best to advise a client at the outset that the expert's role is to determine the facts and provide an independent opinion.

If a party wishes to appoint someone to do as they say and neglect the available facts, the expert should refuse, or reaffirm their position on acting independently.

The expert should clarify to the client that their duty is to the court, and direct them towards a legal adviser where they have not appointed one, informing them that the role of an expert is not to provide legal advice.

Some expert matters are very complex and particular to the circumstances of the case. Looking at the evidence and providing an independent review may entail the surveyor instructing and managing multiple experts in different disciplines.

Limitations should be considered and disclosed, and these should be made clear to the court. Limitations may include works completed by others, where specialist skills are required to inform reliable evidence.

Where an expert is asked to rely on existing information disclosed by their client, they should state this in their report so that findings and opinions are reflective of this.

Where appropriate, an expert may indicate that their opinion could change should they be provided with additional evidence and this would be reasonable.

Solicitors will typically seek to instruct a surveyor to provide a report in this format following the CPR, which will include a declaration and a statement of truth among many other things. Facts should be clearly set apart from opinions.

It is important to be clear whether a report issued is part 35-compliant during instructions or at the point of issue. It is not a standard report and requires far more input than a generic survey or advisory report.

Members should not offer a part 35 report service if they do not understand the applicable requirements, or if they have not been trained to prepare one.

Expert witness work will often come with strict deadlines. Failure to meet these can result in a breach of court requirements, which is a very serious matter. Experts need to advise appointing parties of the realistic and reasonable time frames needed to provide informed and reliable evidence.

Where deadlines are unrealistic, experts should make parties aware of this at the earliest opportunity. Surveyors who are considering offering this service need to appreciate that it may require long hours and weekend work to meet deadlines.

A number of legal practitioners have recently asked surveyors to act on this basis, but this is wholly unacceptable. This approach is currently common within the housing disrepair sector.

It is the expert's duty to refuse an instruction if an approach is made on this basis. A success-based fee could influence an expert, or at least be seen to influence them, when their duty must remain to the court.

Alarmingly, I have observed surveyors promoting their expert witness services on the basis of success-related fees, even though this practice is non-compliant with RICS rules applicable to expert witness work.

Potential clients may enquire about expert witness services where the dispute value is small and the fee for a professional service may seem disproportionate. Ultimately, this is a commercial decision for the client. 

However, in my experience, clear, good-quality reports and advice come at a cost, and prospective clients should be advised of this.

RICS requirements and rules apply to members regardless of the amount they request; therefore it is essential that they charge appropriately for the time needed to prepare reports professionally and in sufficient detail.

There may understandably be financial pressures in a dispute, and some appointing parties may thus seek to cap the fees they pay an expert. However, such parties must appreciate that good-quality advice will come at a cost.

Fees that members charge should also reflect the fact they may be required to stand up in court and be subject to intense questioning. Where fees are capped by the appointing party, members should make this clear and state the limitations where they are unable to reach an informed opinion within this fee or time cap.

I would always advise clients against instructing the expert who offers the lowest fee, as this can considerably compromise a claim and the quality of evidence. 

Poor-quality evidence has in my experience been a common occurrence in recent years, and tribunals' concerns about poor-quality reports and advice have, as mentioned, prompted RICS to issue serious warnings to members in the practice alerts.

It is essential that questions solicitors put to experts are targeted and relevant to the dispute. Experienced experts will charge for time relating to their instructions and excessive or irrelevant questions can lead to unnecessary fee expense.

Equally, it is imperative to ensure questions are focused and clear so that an expert can direct their time appropriately to providing a detailed answer. Too many questions can often result in vague or short answers with limitations.

The fees of an expert could be similar to those the solicitor themselves may charge, and they should appreciate that the expert's advice is fundamental to the reliability and outcome of a case.

Solicitors are therefore strongly advised to appoint experts on the basis of experience and ability rather than cost.

Any RICS member considering this service line should take one of RICS' expert witness training courses to demonstrate knowledge and understanding of the rules and expert witness process. From experience, I have found this more informative than other training methods available.

This training is carried out remotely over several months, providing a comprehensive overview of expert witnesses' duties as well as the skills and competencies they require to perform the role independently. 

The course is intensive and very challenging – though this should be expected, given the complex nature of the work.

Members should seek to confirm their experience as an expert by registering with RICS, completing interviews and assessment for accreditation.

No matter what, the expert must be able to demonstrate their expertise in their field and consider instructions carefully. If they accept an instruction but have a gap in their experience, they should make this clear to their appointing party at the outset as well as in their report.

Before considering any instructions, members need to understand the requirements they must adhere to and acknowledge that their expertise will inform legal rulings with significant consequences.

This service is not one where they can hide behind an employer or their firm: it is the individual member who signs the statement of truth to the court.

This gives all the more reason to appreciate RICS' practice alerts on the matter.