rics manchester jan 2020 presentation - slides (002 ......2020/01/30 · microsoft powerpoint -...
TRANSCRIPT
29/01/2020
1
James Hazlett30 JANUARY 2020
SURVEYORS ACTING ASEXPERT WITNESSES
RICS SEMINARS - MANCHESTER
DAC BEACHCROFT
CONTENTS
2
What is an Expert? 3Establishing the Expertise of the Expert Witness 5Terms of Engagement 9The Seven Principles of Expert Evidence 12Avoiding Conflicts of Interest 17Role of an Expert v Advocate 22Immunity from Suit and ‘Hot-Tubbing’ 23Summary 24Questions 25
1
2
29/01/2020
2
DAC BEACHCROFT
WHAT IS AN EXPERT?
3
DAC BEACHCROFT
WHAT IS AN EXPERT?
4
Folkes v Chadd (1782)
3
4
29/01/2020
3
DAC BEACHCROFT
ESTABLISHING THE EXPERTISE OF THE EXPERT
5
DAC BEACHCROFT 6
“…A person whose level of specialised knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.”
Oxford English Dictionary
5
6
29/01/2020
4
DAC BEACHCROFT
ESTABLISHING THE EXPERTISE OF THE EXPERT
oSpecialist knowledge
oParticular field
oExperience
oResources
7
DAC BEACHCROFT
ESTABLISHING THE EXPERTISE OF THE EXPERT
o Independent
o Measured
o Objective
o Fair & honest
o Impartial
o Still practicing
. . . Credibility
8
7
8
29/01/2020
5
DAC BEACHCROFT
TERMS OF ENGAGEMENT
o RICS – sample set
o Recital of appointment
o Who is your client? Who can rely on your advice?
o Obligations on the appointer
o Obligations on the expert
o Timeframe for producing report
9
DAC BEACHCROFT
TERMS OF ENGAGEMENT
o Limitation of Liability
o Fee structure – hourly rate / fixed fee
o Pay within X days of receipt of invoice or pay when paid
o No conditional fees
o Disputes over fees and disbursements
o Complaints handling
o CPR compliant or in ‘draft’
10
9
10
29/01/2020
6
DAC BEACHCROFT
TERMS OF ENGAGEMENT
oConflict check
oOverriding duty to the Tribunal / Court, not to your client
oSingle Joint Expert – duty owed to the Tribunal / Court
oStatement of Truth
11
DAC BEACHCROFT
THE SEVEN PRINCIPLES OF EXPERT EVIDENCE
12
National Justice Compania Naviera SA v Prudential Assurance Co Ltd(The Ikarian Reefer) [1993]
11
12
29/01/2020
7
DAC BEACHCROFT
THE SEVEN PRINCIPLES OF EXPERT EVIDENCE
1. 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.
2. An expert witness should provide objective unbiased opinion in relation to matters within his expertise and should never assume the role of an advocate.
13
DAC BEACHCROFT
THE SEVEN PRINCIPLES OF EXPERT EVIDENCE
3. The expert should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which detract from his concluded opinion.
4. The expert should make it clear when a question falls outside his own expertise.
14
13
14
29/01/2020
8
DAC BEACHCROFT
THE SEVEN PRINCIPLES OF EXPERT EVIDENCE
5. The opinion should state if it is provisional only, or subject to any qualification.
6. If, after exchange of reports, the expert changes his view, this should be communicated to the other side and the Court without delay.
15
DAC BEACHCROFT
THE SEVEN PRINCIPLES OF EXPERT EVIDENCE
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or similar documents these must be provided to the other party at the same time as the exchange of reports.
16
15
16
29/01/2020
9
DAC BEACHCROFT
AVOIDING CONFLICTS OF INTEREST
17
DAC BEACHCROFT
AVOIDING CONFLICTS OF INTEREST
o RICS Rules of Conduct set an overarching obligation on both members and RICS regulated firms at all times to:
“…..act with integrity and avoid conflicts of interest and avoid any action or situations that are inconsistent with its professional obligations.”
o Acting for an employer BUT overriding duty to the Tribunal / Court
o Record keeping
18
17
18
29/01/2020
10
DAC BEACHCROFT
AVOIDING CONFLICTS OF INTEREST
1. Conflicts of Interest
1.1 An RICS member or regulated firm must not advise or represent a client where doing so would involve a Conflict of Interest or a significant risk of a Conflict of Interest; other than where all those who are or may be affected have provided their Informed Consent.
19
DAC BEACHCROFT
AVOIDING CONFLICTS OF INTEREST
4.2 Conflict of Interest means:
(a) A situation in which the duty of an RICS member…..to act in the interests of a client or other party in a professional assignment conflicts with a duty owed to another client or party in relation to the same or a related professional assignment (a ‘Party conflict’)
20
19
20
29/01/2020
11
DAC BEACHCROFT
AVOIDING CONFLICTS OF INTEREST
4.2 Conflict of Interest means:
(b) A situation in which the duty of an RICS member…..to act in the interests of a client in a professional assignment conflicts with the interests of that same RICS member / firm (an ‘Own Interest Conflict’)
21
DAC BEACHCROFT
ROLE OF AN EXPERT v ADVOCATE
o Expert witnesses cannot usually act as advocates.
o However, some lower tribunals allow surveyors to act as expert and advocate where it is in the public interest and not allowing this would limit access to justice i.e. public interest and disproportionality.
o You must consider whether you can act as both and communicate the reasons why to your client promptly.
22
21
22
29/01/2020
12
DAC BEACHCROFT
IMMUNITY FROM SUIT AND HOT-TUBBING
23
DAC BEACHCROFT
SUMMARY
24
What is an Expert? 3Establishing the Expertise of the Expert Witness 5Terms of Engagement 9The Seven Principles of Expert Evidence 12Avoiding Conflicts of Interest 17Role of an Expert v Advocate 22Immunity from Suit and ‘Hot-Tubbing’ 23Summary 24Questions 25
23
24
29/01/2020
13
DAC BEACHCROFT 25
DAC BEACHCROFT 26
For more information, contact:
James Hazlett
Senior Associate
T: +44 (0) 113 251 4733
25
26
29/01/2020
14
dacbeachcroft.com
Follow us: @dacbeachcroft
Connect with us: DAC Beachcroft LLP
DAC Beachcroft publications are created on a general basis for information only and do not constitute legal or other professional advice. No liability is accepted to users or third parties for the use of the contents or any errors or inaccuracies therein. Professional advice should always be obtained before applying the information to particular circumstances. For further details please go to www.dacbeachcroft.com/en/gb/about/legal-notice. Please also read our DAC Beachcroft Group privacy policy at www.dacbeachcroft.com/en/gb/about/privacy-policy. By reading this publication you accept that you have read, understood and agree to the terms of this disclaimer. The copyright in this communication is retained by DAC Beachcroft. © DAC Beachcroft.
27
28