Civil Procedure Rules and the Dilapidations Protocol

As an adviser

Generally speaking the surveyor will be instructed, at least initially, as an adviser for either the landlord or the tenant. A surveyor appointed as an adviser has an obligation to act in accordance with the RICS Rules of Conduct and also has a duty to his or her client.

Invariably when a dilapidations claim is initiated, it is not expected that there will be litigation. However, that must always be considered to be a possibility and the surveyor must therefore adequately address their role with the client. Then, if a claim is not resolved, and this results in some form of formal dispute resolution process being initiated (whether by means of litigation or arbitration), the surveyor is able, if that is the intention, to continue involvement in the case but on the basis that they can adopt the formal role of an expert authorised by Part 35 CPR.

As an expert

Of particular importance to dilapidations surveyors are the regulations governing expert witnesses. The CPR have made a particular point of attempting to eradicate what was perceived to be biased experts acting as advocates for one of the parties. The penalties against experts behaving in such a way are significant. Surveyors should be aware of the requirements of the RICS practice statement and guidance note Surveyors acting as expert witnesses. In addition, sections 2.4 and 12.4 of the RICS Dilapidations guidance note (7th edition) also offers specific guidance for surveyors acting as experts.

Note that Part 35 CPR (and see also the Practice Direction to Part 35 which gives, for example, guidance on the form and content of an expert’s report including the ‘statement of truth’ that it is to include) explains that expert evidence is to be restricted to that which is reasonably required to resolve the proceedings. Part 35.4(1) CPR makes it clear that no party may call an expert or put in evidence from an expert without the court’s permission. Also, while expert evidence is to be given in a written report (which was previously generally the case), it will not always be the case that the expert will be required to give oral evidence.

Whether an expert gives evidence in solely written form or orally or both, Part 35.3 states that 'it is the duty of an expert to help the court on matters within his expertise' and that 'this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid'. This important principle is often a cause for conflict between a surveyor and his client.

With this overriding duty to the court a surveyor who is or has become an expert for the purposes of Part 35 CPR must be mindful of the consequences of his work bearing in mind, for example, the court’s wide discretion in relation to, among other things, costs. If a surveyor acting as an expert has exaggerated a claim or inappropriately raised, pursued or contested a particular allegation or issue or conducted himself in an inappropriate manner in relation to his client’s case or in relation to a particular allegation or issue, the court can make an adverse costs order against his client. As a result of principles discussed in recent cases, it is clear an expert can be required to pay compensation (in wasted costs) to an opposing side if his work amounted to a gross dereliction of his duties as an expert.

Even if there is no suggestion that a surveyor exaggerated the position in apparent support of the client, the surveyor needs to ensure that he preserves his integrity, otherwise the weight the judge attributes to his evidence may be diminished. In Carmel Southend Ltd v Strachan and Henshaw Ltd (2007) paragraphs 42-48, the judge considered an issue which he entitled ‘why did [the expert] change his position?’ It appeared that it was possible that the building surveyor giving evidence on behalf of the landlord might have changed his view about the nature of work that was required to the building concerned as a result of pressure he might have felt to align his views with the actions of his landlord client. In doing so he changed his position and that may have had an adverse impact in the judge’s thinking on the landlord’s case. This is perhaps a good example of a classic trap – where a surveyor is initially instructed as an adviser and subsequently becomes an expert, and in doing so loses sight of his role and the responsibilities arising out of that role. Therefore, having a clear understanding of the role at each stage in the process is crucial.

In addition to these fundamental issues, Part 35 CPR also deals with other more procedural matters including, for example, the possibility that someone is appointed as a single joint expert. In large claims, where there might be a wide range of opinion, that is not necessarily going to be appropriate. In practise, in smaller claims concerning, for example, the state and condition of property, single joint experts are frequently appointed in litigation.