What’s the difference?
Expert Witness
The general rule is that a witness in court or other judicial proceedings must only give an account of facts within his/her knowledge. He or she should not express personal opinions. Rather it is for the court to form an opinion on the facts presented by the witness.
An exception to the rule is where an issue falls outside the knowledge and experience of a judge or jury. For example, a question before the court may concern whether a property is to be valued as a high street shop or a department store. In such circumstances the court is allowed hear the “opinion” of someone who is an expert on the valuation of retails premises.
The expert witness does not decide the ultimate issue i.e. that the subject matter in dispute is a shop or department store. His/her opinion is not binding on the court, and it is for judge or jury to make its own conclusion. Parties will sometimes refer to the Contact Centre for suggestions as to who they may instruct to act as their expert witness. Generally, DRS does not suggest, appoint, recommend expert witnesses.
Single Joint Expert Witness
Traditionally each party would instruct its own expert witness to give evidence. Since 1998 the courts have had power to require expert evidence to be given by a single expert. Ideally this expert would be instructed jointly by the parties. It is common for parties, seeking to instruct an expert witness or single joint expert, to seek names from the RICS Contact Centre. A single joint expert is an expert witness whose job is to give opinion evidence to the court on a matter outside the court’s knowledge and experience.
In practice, parties are sometimes unable to agree the identity of their single joint expert. The court will then order that a single joint expert will be appointed by the President of RICS. Such appointments are administered by DRS.
Independent Experts
Not to be confused with expert witness or single joint expert, an independent expert acts as a tribunal to decide a dispute. Typically, a contract or lease will say any dispute arising between the parties will be referred to an independent expert, whose decision is final and binding. A commercial lease for example, may state that disputes between the landlord and tenant concerning the level of rent to be paid will be determined by an independent expert.
Parties can agree the identity of their independent expert and may refer to RICS for some suggestions. In many cases leases will state that, if the parties cannot agree who their expert shall be, he will be appointed by the President of RICS. Such appointments are administered by the RICS Dispute Resolution Service (DRS).
Summary
Expert witness – is instructed to give evidence before a court. The expert’s testimony must be impartial and must solely be designed to inform the tribunal. Usually instructed by one party in court proceedings. Names of possible expert witnesses can be provided by RICS.
Single Joint Expert – is instructed to give evidence before a court. Usually instructed by both parties in court proceedings. Names of possible single joint experts often provided by RICS. Where parties cannot agree who the single joint expert should be, the court may order that the expert is appointed by RICS. DRS would administer the appointment.
Independent expert – is appointed to act as a tribunal/judge in a dispute. Typically, a contract/lease will provide that, instead of going to court, a dispute will be decided by someone who is independent and is expert in the subject matter. Parties may agree who the independent expert shall be. They may refer to DRS for names of possible independent experts. Contract/lease may say that, where there is no agreement as to who the independent expert will be, the expert will be appointed by RICS. Such appointments are administered by DRS.