The Expert Witness (Party Appointed)
In cases where at least one of the parties to a dispute has taken advice from a suitably
qualified and experienced professional prior to the commencement of court proceedings,
the County Court will normally allow each party to appoint its own expert.
The description that follows is as applicable to proceedings in the County Court as well
as in other quasi-judicial bodies.
|
The legal framework
The Civil Procedure Rules, Part 35
The expert's conduct during the litigation is governed by Part 35 of the Civil Procedure Rules,
which can be found at
www.justice.gov.uk/civil/procrules_fin/contents/parts/part35.htm .
It is the duty of an expert to help the court on the matters within his expertise. This duty
overrides any obligation to the person from whom he has received instructions or by whom he is paid.
Protocol for the Instruction of Experts to give Evidence in Civil Claims
The purpose of this Protocol is to provide guidance both to solicitors who instruct experts and
to the expert witnesses themselves. The Protocol has been drafted by the Civil Justice
Council, who perceive that expert witnesses perform a vital role in civil litigation. The Protocol is
available from www.justice.gov.uk/ web site.
RICS Practice Statement: Surveyors Acting as Expert Witnesses
A Chartered Surveyor who works as an expert witness must also meet the requirements of the RICS
as set down in "Surveyors Acting as Expert Witnesses: Practice Statement", a copy of
which can be supplied on request.
|
Whilst the description that follows is appropriate to a boundary dispute, the same professional skills
may be brought to bear on a dispute as to the location and extent of a right of way.
The expert's duty to the court is to interpret the paper title boundary, to advise on the quality of its
description in the title deed, and to offer alternative positions for the boundary should the description
be ambiguous. In case either party is claiming adverse possession, the expert will assess the age and
position of any physical bounding features on which either party may rely.
Establishing the position of the paper title boundary
The expert will need to:
- Identify the deed that carries the paper title, or
- the earliest available deed that describes the boundary.
- Comment upon the quality of the paper title boundary description.
- Relate the boundary description to a ground position (if appropriate), or
- relate the boundary position to physical features now present on the ground.
- Comment on whether or not the ground features carry the paper title boundary.
Extrinsic evidence
Where the description of the paper title boundary is deficient, the expert will consider extrinsic evidence such as:
- old aerial photographs;
- old Ordnance Survey maps;
- planning drawings;
- the client's family photo album,
- published material of evidential value (eg. old newspaper articles, picture postcards).
Service offered
The expert witness' involvement in the settlement of the boundary dispute will progress through a number of stages:
STAGE 1
- Issuing of instructions to expert (usually by client's solicitor),
- Provision of documentary evidence.
STAGE 2
- On-site consultation between expert and client,
- Detailed, measured land survey.
STAGE 3
- Comparison of documents with survey,
- Writing and serving the expert report.
STAGE 4
- Exchange of reports with other party's expert,
- Possible on-site meeting of experts,
- Joint Statement & Agreed Plan issued by the experts.
STAGE 5
- Briefing meetings with client's legal team,
- Attend Court to give evidence orally,
- Possible Court visit to site.
STAGE 6
- Possibly required by Court to peg out the boundary,
- Possibly required to prepare a suitable plan for a Determined Boundary application to Land Registry.
The Expert Report will include sections on:
- Background information and Chronology;
- The registered boundary (if applicable);
- The parties' claims;
- Observations made on site;
- Analysis of the evidence;
- Conclusions;
and will be prefixed with a Summary and supported by a pertinent set of Appendices.
Expected outcome
Occasionally, the Expert Report (Stage 3) will be sufficient to persuade the parties to
settle and will provide a position for the boundary as a basis for settlement.
More often, the Expert Report will advise the client's lawyers and provide a basis for the
giving of expert opinion evidence in Court. The outcome of the case is a matter for the Court's decision.
Other Applciations
An Expert Report is normally essential for a boundary dispute tried before the County Court or
High Court. It may also be essential in a case that is referred to the Land Registration
Division of the Property Chamber (First Tier tribunal).
Some clients will also find it desirable to instruct an expert to prepare an Expert Report to CPR Part 35
standards (at least, for Stages 1, 2 and 3) in preparation for a dispute that is to be decided by
mediation or by arbitration.
|
Jon Maynard FRICS holds strongly to the view that a good expert report on either a
disputed boundary or a disputed right of way should be based on a proper
understanding of its history, should subject all of the evidence to a thorough
spatial analysis, and should draw conclusions that are properly supported by the
findings of that analysis. "Excellent", "impressive",
"thorough and comprehensive", "near-forensic",
"most diligent", "scholarly" and "erudite"
are adjectives that have been used to describe his Expert Reports.
|
Some past cases
2008-2013, Disputed private right of way over the land of a major hotel benefitting the neighbouring major hotel, Kensington, London
2008-2009, Boundary Dispute, including giving evidence at a hearing before the Deputy Adjudicator to HM Land Registry, High Wycombe, Bucks
2008-2009, Boundary Dispute, Harrow, London
2008 - 2009, Boundary Dispute, Strathblane, Scotland, Expert Report.
2007 - 2011, Boundary dispute, Shirrell Heath, Hampshire, Expert Report and Meeting with other party's Expert,Settled at mediation.
2007 - 2008, Boundary Dispute, Maidstone, Kent, Expert Advice, confidential, to a client relying on a single joint expert other than myself.
2007, Boundary Dispute, Kidderminster, Worcerstershire, Expert Report.
2007, Boundary Dispute, Wallington, Surrey, Expert Report,Meeting with other party's Expert.
2007 - 2008, Boundary Dispute, Calbourne, Isle of Wight, Expert Report.
2007 - 2008, Boundary dispute, Bognor Regis, West Sussex, Expert Report.
2006 - 2009, Boundary Dispute, Slough, Berkshire, Expert Report.
2006 - 2008, Boundary Dispute, Perth & Kinross, Scotalnd, Expert Report.
2006 - 2007, Boundary Dispute, Dibden Purlieu, Hampshire, Expert Witness in County Court.
2006, Boundary Dispute, Littleport, Cambridgeshire, Expert Report.
2006, Boundary Dispute, Redditch, Professional Opinion.
2006, Ownership of tree in insurance claim for subsidence, Southwater, West Sussex, Expert Witness in County Court.
2006, Boundary Dispute, Ventnor, Isle of Wight, Expert Report.
2005, Boundary and private right of way Hayward's Heath, West Sussex, Expert Report.
2005 - 2007, Boundary dispute, Sutton, Surrey, Expert Witness in County Court.
2005, Boundary dispute, Eastleigh, Hampshire, Expert Report.
2005 - 2007, Boundary dispute, Probus, Cornwall, Expert Report.
2005, Boundary dispute, Shrivenham, Oxfordshire, Expert Report.
2005 - 2008, Private right of way, Chippenham, Wiltshire, Expert Report. Width of driveway access.
2005 - 2006, Boundary dispute, Coventry, Warwickshire, Expert Report.
2005, Boundary dispute, Littlehampton, West Sussex, Expert Report, Evidence of ownership of tree that fell in road causing motor accident.
2004-2007, Boundary dispute, Builth Wells, Powys, Wales, Expert Report, Expert not required to attend County Court.
2004-2005, Boundary and private right of way, Kingsbridge, Devon, Expert Report, Expert not required to attend
County Court.
2004-2005, Boundary dispute, Bognor Regis, West Sussex, Expert Witness, County Court.
2004-2005, Boundary dispute, Fareham, Hampshire, Expert Report.
2004-2007, Boundary dispute, Horndean, Hampshire, Expert Report.
2004, Public right of way, Chichester, West Sussex, Expert Report, Used as written evidence to Planning Inspectorate re. a proposed upgrade from footpath to Bridleway.
2004-2007, Boundary dispute, Holywell, North Wales, Expert Report, As far as is known, the case went to mediation.
2004, Boundary dispute, Southampton, Hampshire, Expert Report, Comparison of neighbour's title deeds to test whether differing descriptions defined the same line of the boundary.
2004-2009, Boundary dispute, Cambridge, Expert Witness, County Court, settlement after part-run trial.
2004, Boundary dispute, Chichester, West Sussex, Expert Report. Expert not required to attend County Court.
2003-2004, Boundary dispute, Gravesend, Kent, Expert Report.
2003-2004, Boundary dispute, Reading, Berkshire, Expert Report.
2003-2007, Private right of way, Chichester, West Sussex, Expert Report.
2003-2004, Boundary dispute, Devizes, Wiltshire, Expert Witness, Evidence at County Court as to whether new fencing accorded with previous Court Judgment as to position of boundary.
2003, Boundary dispute, Newport, South Wales, Expert Witness, County Court.
2003-2004, Boundary dispute, Woking, Surrey, Expert Report, Settled out of court.
2003-2005, Boundary dispute, Benfleet, Essex, Expert Report, Encroachment revealed by air photographs.
2003-2004, Boundary dispute, Dartington, Devon, Expert Report, Boundary related to a Devon bank.
2003, Boundary dispute, Cambridge, Expert Report, Client had previosuly lost in County Court and took case to Court of Appeal.
2002-2003, Boundary dispute, Bridgwater, Somerset, Expert Report. Attended Coutny Court, did not give oral evidence.
2002-2009, Boundary dispute, Arundel, West Sussex, Expert Report. Expert not required to attend County Court.
2002-2007, Boundary dispute, Southampton, Hampshire, Expert Report. Expert not required to attend County Court. Ownership of retaining wall along boundary.
2002-2003, Boundary dispute, New Milton, Hampshire, Expert Report. Settled by Consent Order at County Court.
2002, Boundary dispute, London, Expert Report. Expert not required to attend County Court.
2002-2006, Boundary dispute, Dorchester, Dorset, Expert Report. Expert not required to attend County Court.
2002-2003, Boundary dispute, Tunbridge Wells, Kent, Expert Witness, County Court.
2002-2003, Boundary Dispute, Petersfield, Hampshire, Expert Report.
2002-2005, Boundary and private right of way Petersfield, Hampshire, Expert Report, Settled out of court, with Determined Boundary recording the agreed boundary and the extent of the right of way.
2002-2008, Boundary Dispute, Newbury, Berkshire, Expert Witness, County Court, Judgment recorded as a Determined Boundary.
2002-2005, Boundary dispute, Havant, Hampshire, Expert Report. Settled out of court by Boundary agreement.
2001-2005, Boundary dispute, Aldershot, Hampshire, Expert Witness, County Court.
2001-2003, Boundary dispute, Southampton, Hampshire, Expert Report.
2001-2002, Private Right of Way, Liss, Hampshire, Expert Report, Neighbour's planning objection based on claim that the extension would encroach onto right of way.
2001-2002, Boundary dispute, Isle of Wight, Expert Report.
2001-2003, Boundary dispute, Fleet, Hampshire, Expert Report. Court did not call expert.
2001-2003, Boundary dispute, Fleet, Hampshire, Expert Report. Court did not call expert.
2001-2004, Boundary dispute, Romsey, Hampshire, Expert Report, Settled out of court.
2001-2003, Boundary dispute, London, Expert Witness, County Court.
2001-2004, Boundary dispute, Winchester, Hampshire, Expert Witness, County Court.
2001-2003, Boundary dispute, Frodsham, Cheshire, Expert Report, Settled amicably.
REGULATED BY RICS