20 SEP 2019
RICS has launched its Expert Witness Certificate in Northern Ireland to ensure surveying professionals develop the core competencies needed to be effective expert witnesses and go on to achieve RICS accreditation.
It follows important changes that affect all those who perform the role of expert witness in commercial proceedings in Northern Ireland.
On 29 April 2019, the High Court of Justice for Northern Ireland issued a Practice Direction, which is now applicable to all proceedings in the Commercial List (as of 1 June 2019). The Practice Direction emphasises the extent of the duty owed by anyone who is instructed to give or prepare expert evidence for court proceedings.
"The primary message is that the duty to the court overrides any obligation the expert might owe to an instructing party or person(s) who pay the expert's fees," explained Martin Burns, Head of ADR Research and Development at RICS. "It offers a reminder to expert witnesses that they should follow best practice and be mindful of the objective of the Rules of Court, which is to enable the court to deal with cases justly.
"At the heart of the Practice Direction is a key message to expert witnesses that they will be expected to be qualified, not only in their specialist subject matter, but also as expert witnesses. In other words, they should be trained and accredited in the role and duties of the expert witness." He continued.
Experts who fail to comply with the Rules of Court or the Practice Direction or are responsible for excessive delay may cause the parties who instruct them to be penalised in costs orders. The court may even order that expert evidence provided by non-compliant experts will be disbarred.
With surveyors acting as expert witnesses in a wide range of court cases, Tim Hopkins FRICS FCIArb FAE, when speaking at a recent event to launch the RICS Expert Witness Certificate training programme in Northern Ireland, outlined a number of recent cases in Northern Ireland where the inadequacies of expert witnesses have been called out by the judge. These issues included failure to understand the duty of an expert witness to the court, and the continued submission of non-compliant expert reports.
Tim told the room of surveying professionals: "Emphasis has to be placed on knowledge of the subject matter, qualification, accreditation, experience, and the ability to provide an independent, impartial and unbiased opinion to the court."
"RICS and other organisations provide expert witness training and there's no hiding place or excuse. It is only a matter of time before the courts in Northern Ireland publicly criticise a chartered surveyor," he warned.
John Fletcher, ADR Global Director at RICS added: "The RICS Practice Statement and Guidance note - for surveyors acting as expert witnesses, which will soon become a Professional Statement - has been out there for decades. However, it has become apparent that many chartered surveyors are not as familiar with the contents of those practice statements as they ought to be".
"If a chartered surveyor has been found to have failed to abide by the provisions of the practice statement, it’s potentially professional misconduct.”
RICS ADR Global Director
"Bearing in mind that those practice statements are mandatory for RICS members, if a chartered surveyor has been found to have failed to abide by the provisions of the practice statement, it's potentially professional misconduct."
The role and duties of an expert witness should not be underestimated. "It places an enormous responsibility on you," continued John. "The court is relying on you not just to account for what you saw or heard as a witness of fact, but actually give the court the benefit of your professional opinion on a complex or technical issue - and therefore it carries with it an enormous responsibility not to mislead the court."
"In Northern Ireland, the Practice Direction, which the Commercial Court has issued, is now saying that experts should be trained and accredited. This is part of a global drive by governments and judiciary to improve the quality of evidence that's being give in court."
John Fletcher explains three areas which have been identified by courts globally, where the role of expert witness can improve:
1. Understand you are an expert to the court, not an advocate for your client
There's a failure by many experts to understand that they are not there in the first instance to represent their clients, or to promote the interests of their clients. They are there to inform and guide the court, and that requires experts to demonstrate high levels of independence and impartiality.
2. The quality of expert reports
Although undertaken by subject-matter experts, reports are sometimes incomprehensible to the courts or to the parties which are seeking to rely upon them, because they are just not drawn up in a way that makes sense to non-experts
3. Failure to withstand cross examination in the witness box
Often this failure is not a function of the integrity of the evidence the experts are giving. Expert witnesses generally know their specialist subject areas very well, but often they just don't know how to deal with the pressure of being in court. Many struggle to cope with having a barrister throw questions at them under intense cross examination, which is can often be designed to try and undermine them as experts.
“The failure to understand the primary duty to the tribunal, the failure to write a witness report that is sufficiently useful, comprehensible and beneficial to the court, and a lack of understanding about how to give evidence in chief and manage robust cross examination in court, are three areas which RICS has identified where expert witnesses need additional help and training,” explained John.