In this article Andrew Merrilees – Expert Witness, Chartered Quantity Surveyor and Director at Capital Consulting International (CCi) examines the evolution of the QS profession and the duties of an Expert Witness.
Genesis of the Quantity Surveyor
An early reference to the origins of estimating is found in a quote from the NIV bible: –
“Suppose one of you wants to build a tower. Won’t you first sit down and estimate the cost to see if you have enough money to complete it?” (Luke, 14:28)
The gestation of the quantity surveying profession occurred during the 19th century from what was regarded at that time as a measurer of works; a skilled tradesman who produced schedules for building projects and wherein all labour, materials and work activities were quantified to allow a level playing field for the tendering of buildings.
The earliest cited quantity surveyor was the eminent Sir Henry Arthur Hunt who engaged in the restoration of the Houses of Parliament following a fire to the building in 1834.
Established quantity surveying authors such as Ashworth, Hogg, Higgs, and Willis make limited reference to the origins of the quantity surveyor. According to Seeley (1988), the earliest reference of a quantity surveying firm was Messrs. Henry Cooper and Sons who resided in Reading Berkshire in 1785. It is also recorded in 1802, several Scottish quantity surveying firms produced the first method of measurement of building works.
An interesting history lesson on the origins of the surveying profession are found in F.M.L Thompson’s book, “Chartered Surveyors, the growth of a profession” published in 1968. Thompson considered the roots of quantity surveying went back as far as the 17th century and to the Great Fire of London in 1666.
The profession of quantity surveying has grown over the last several hundred years and is practised throughout the United Kingdom and the Commonwealth countries.
Quantity Surveyor [ii]
The modern-day quantity surveyor has gestated from measurer of buildings and entered the realm of expert witness work and expert testimony and plays a significant role in the resolution of disputes.
Generally, it is not the technical skills of a quantity surveyor-cum-expert that are often cited as the cause of expert witness horror stories but the failings of an expert to act in accordance with the profession’s codes of conduct and the failure to fulfil the role of an impartial witness as laid down in the relevant court rules (e.g., Part 35 of the English Civil Procedure Rules (CPR 35)) and associated practice direction and the guidance for instruction of experts.
In the event an expert does not abide with the aforesaid duties, less weight may be attached to their evidence, and conversely the evidence proffered by the other expert may be more persuasive.
Expert Witness [iii]
The decision by the English law court in 1782 [iv] concerning the silting-up of Wells harbour in Norfolk England is the first known case where expert evidence was accepted by the courts, given by one of the distinguished civil engineers at that time, Mr John Smeaton, and is widely cited as the source of contemporary rules on expert testimony.
An expert witness is a person whose opinion by virtue of education, training, certification, skills, or experience, is accepted by the judge as evidence. In Galvin v Murray  IESC 78, the following was observed in terms of qualifications of an expert witness: –
“In general terms an expert may be defined as a person whose qualifications or expertise give an added authority to opinions or statements given or made by him within the area of his expertise.” [v]
In the Supreme Court of Canada, the case of R. v. Mohan  2 SCR 9, it was held that a qualified expert is one who has acquired special knowledge by study, knowledge, or experience pertaining to the issues on which the expert testifies.
In Whitehouse v Jordan  1 WLR 246 at 256–257, Lord Wilberforce stated the following: –
“Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”
A test of independence may be that the expert would express the same opinion if they were provided the same set of instructions by the opposite party. The expert should not espouse the viewpoint of the party instructing them or participate in the role of advocate.
The duties of an expert were developed by Mr Justice Cresswell in the seminal case of “The Ikarian Reefer” [vi] which expound the obligations of an expert to be impartial, unbiased, and importantly independent.
The Ikarian Reefer
Prior to appointment as an expert, the expert would be advised to recall the principles set out in the case. The expert witness must maintain an unbiased conduct and not be influenced by any party.
The principal duties of expert witnesses in civil cases as given by Mr Justice Creswell in “The Ikarian Reefer” comprise the following tenets verbatim: –
- Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
- An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.
- An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
- An expert witness should make it clear when a particular question or issue falls outside his expertise.
- If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
- If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
- Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
The expert’s written report should be unbiased and based on all evidence available. For example, a quantity surveyor in the role of quantum expert must support the views in their opinion and by quoting and affixing the source to the report. Enquiries and references to market rates to support a claimed amount with comparisons to industry costing data for the type of work trade or activity may afford support to the evaluation.
The same principles indoctrinated in “The Ikarian Reefer” remain valid today, as confirmed by Mr Justice Fraser in Imperial Chemical Industries Limited v Merit Merrell Technology Limited (No. 2 Quantum)  EWHC 1577 (TCC) in the following terms: –
“No expert should allow the necessary adherence to the principles in The Ikarian Reefer to be loosened.”
Van Oord UK Ltd
In the case of Van Oord UK Ltd and SICIM Roadbridge Ltd v Allseas UK Ltd  EWHC 3074 (TCC) the judgment of Coulson J was a damning one of a quantum expert.
In summary, Van Oord and SICIM’s quantum expert’s testimony made “a mockery of the oath which Mr Lester had taken at the outset of his evidence”. By contrast Allsea’s expert was found to be “an independent and clear expert witness”. Consequently, the Court could only rely on Allsea’s expert who had valued various line items at zero.
Apposite examples given by Coulson J among others include the following: –
- Taking claims at face value without reviewing the underlying documents to support the claim or otherwise.
- The valuation of claims made on the full basis of Van Oord’s claim with no apprehension of other factors.
- No consideration of the claims based on actual costs incurred.
- Making assertions in written reports which appeared to come from the expert, but in cross-examination such assertions were from discussions with his clients’ witnesses.
- Not assessing the value of certain items on a fair and reasonable basis properly supported by rates.
Robin Ellis Ltd
In the case of Robin Ellis Ltd -v- Malwright Ltd  B.L.R. 81, it was held that the duty of the expert quantity surveyor’s duty to the court was breached as the expert had been instructed not to sign any agreed statement with his opposite expert save for the approval of his instructing solicitor.
Role of an Expert Witness
Experts are relied upon for opinions on a variety of matters that are technical in nature.
In English court proceedings the role of the expert is governed by CPR 35, which deals with the situations when expert evidence may be permitted in court, the duties of an expert and their conduct.
The Practice Direction [vii] to CPR 35 outlines the experts overriding duty to the court, the general requirements for expert evidence to be given, the contents of the expert report, instructions to single joint experts and directions on the discussions between experts.
A recent update (typed in bold below) on the Statement of Truth came into effect which means that any CPR Part 35 compliant report in England and Wales must contain such statement at the expert’s declaration of the report as follows [viii]: –
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
The amendment to the Statement of Truth follows the Court of Appeal judgment in Liverpool Victoria Insurance Co. Ltd v Dr Asef Zafar  EWCA 392 Civ. concerning the sentencing of an expert who had signed a false Statement of Truth, and who had amended his opinion on the prediction of a claimant and based upon the request of his instructing party.
Accordingly, paragraph 3.3 of the Practice Direction to CPR 35 was updated to reflect the judgment in the Liverpool Victoria case. [ix]
Duties of Experts
Practice Direction to CPR Part 35: Expert Evidence – General Requirements: –
- Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
- Experts should assist the court by providing objective, unbiased opinions on matters within their expertise. Experts should not assume the role of an advocate.
- Experts should consider all material facts, including those which may diminish from their opinions.
- Experts should elaborate: –
- when a question or issue falls outside their expertise; and
- when they are not able to reach a definite opinion.
- If, after producing a report, an expert’s view changes on any material matter, the change of view should be communicated to all the parties without delay and to the court.
The Singapore Rules of Court provide at Order 40A (Experts Duty to the Court) rule 2(1) and 2(2), an expert’s duty is to assist the court on matters within their expertise. This duty overrides any obligation to the person from whom they have received instructions or by whom they are paid. [x]
The expert’s duty to the courts under Order 40A is the same as that given under CPR 35.3(1) and (2). [xi]
In Vita Health Laboratories Pte Ltd and Others v Pang Seng Meng  SGHC 158, V K Rajah JC said of Order 40A rule 2(2) the following: –
“The expert should neither attempt nor be seen to be an advocate of or for a party’s cause. If he appears to do this, he will inexorably lose his credibility. That said, it is entirely permissible for him to propound and press home the opinion he seeks to persuade the court to accept. In essence, his advocacy is limited to supporting his independent views and not his client’s cause. This is an important distinction that some experts fail to grasp.”
The Order 40A rule 3(2)(g) provides for the expert to state in the report the belief of correctness of their expert opinion, whilst Order 40A rule 3(2)(h) provides for a statement that the expert understands that in giving their report, the duty is to the court and that the expert complies with that duty. [xii]
The Academy of Experts (TAE)
The Academy of Experts established in 1987 in the United Kingdom is the professional society and accrediting body for expert witnesses of all disciplines. The TAE holds regular training courses that cover such topics as the expert’s role and responsibilities, the expert’s report and the expert going into court, and which are a fount of knowledge for members who are either accredited by the Academy or are aspiring accreditation. [xiii]
Codes of Practice
TAE Code of Practice for Experts [xiv]: –
The TAE code of practice for experts should be followed by all Academy of Experts members. A brief overview of the expert’s duties contained in the code of practice is given below.
The Preamble to the TAE Code of Practice provides the minimum standards of practice that are to be maintained by all experts.
These include the expert: –
- Being a fit and proper person.
- Maintaining a high standard of technical knowledge and practical experience in their profession.
- Knowledge up to date both in their expertise and as experts and engaging in relevant continuing professional developments and training.
Experts shall abide by the following TAE Code for experts: –
- Expert’s independence, impartiality, objectivity, and integrity.
- Expert’s duty to the court of tribunal.
- The good repute of the expert or of experts generally.
- Expert’s proper standard of work.
- Expert’s duty to maintain confidentiality.
RICS Practice Statement and Guidance Note [xv]: –
The “RICS Surveyors Acting as Expert Witnesses” 4th edition, amended August 2020 provides a practice statement and guidance note for surveyors engaged in the capacity of expert witnesses. An outline of the RICS practice statement and guidance note are provided as follows.
RICS Practice Statement
It is the duty of every member to comply with relevant practice statements and take cognisance of other guidance produced by the RICS in their area of expertise and maintain a high professional standard.
In the event members deviate from the practices set out in the practice statement, they should do so only for good reason and the respective client must be informed in writing of the fact and the reasons for such deviation.
Practice Statement 3.2 states members must only function as an expert witness and give expert evidence where they have [xvi]: –
- The ability to act impartially in the assignment.
- The experience, knowledge, and expertise appropriate for the assignment.
- The resources to complete the assignment within the required timescales and to the required standard.
RICS Guidance Note
The RICS guidance note is recommended as best practice to attain the high standard of professional competence.
Guidance Note 1.9 reminds members of the principles enunciated in “The Ikarian Reefer” that is followed by other UK and common law jurisdictions and perceived as a useful benchmark in disputes. [xvii]
Guidance Note 1.10 states surveyors are expected to take account of other practice statements, guidance notes and codes produced by the RICS when giving expert evidence in relation to any matter. [xviii]
The RICS guidance reminds the surveyor acting in the role of expert that the primary and overriding duty of an expert witness and the expert report and evidence is not to the client but to the court or tribunal. The duty is to assist the court or tribunal to understand the technicalities of the case, for example on matters of quantum or delay.
It is paramount the quantity surveyor acting as expert be knowledgeable, experienced, and robust in their analysis and abide by the duties of an independent expert witness.
Surveyors who receive appointments as expert witnesses are recommended to follow the material rules, codes, directions, guidance notes and practice notes. Lawyers engaging experts should instruct an expert that is suitably qualified for the case and who understands their duties and responsibilities. The independence of the expert is necessary to preserving reliability of the evidence.
[i] On the Origin of Species by Means of Natural Selection by Charles Darwin., M.A., England 1859
[iv] Folkes v Chadd (1782) 3 Doug KB 157
[v] Galvin v Murray  IESC 78
[vi] National Justice Compania Naviera SA v Prudential Assurance Compant Limited  2 Llyods Rep 68
[vii] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35/pd_part35 at paragraphs 2.1 to 2.5
[ix] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35/pd_part35 at paragraph 3.3
[x] https://sso.agc.gov.sg/SL/SCJA1969-R5?ProvIds=PO40A-#PO40A-pr2- at rule 2(1) and 2(2)
[xi] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35 at rule 35.3
[xii] https://sso.agc.gov.sg/SL/SCJA1969-R5?ProvIds=PO40A-#PO40A-pr2- at rule 3(2) (g) and (h)
[xv] Surveyors Acting as Expert Witnesses, 4th Edition RICS, amended August 2020.
[xvi] Surveyors Acting as Expert Witnesses, 4th Edition RICS, amended August 2020, PS 3.2.
[xvii] Surveyors Acting as Expert Witnesses, 4th Edition RICS, amended August 2020, GN 1.9.
[xviii] Surveyors Acting as Expert Witnesses, 4th Edition RICS, amended August 2020, GN 1.10.