The Use of Experts as Advocates and Expert Witnesses in Property Disputes

Property disputes often involve complex legal and factual issues requiring specialised knowledge. Experts, such as surveyors, valuers, engineers, and other professionals, play a crucial role in providing impartial analysis and evidence to assist the Court in resolving disputes.

Depending on their role, experts may act as either expert witnesses to offer independent and professional opinions to assist the Court in understanding technical issues and determining the facts of the case or as advocates to support a party’s position, typically in negotiations or alternative dispute resolution, though they must remain objective.

Expert Witnesses and Part 35 of the Civil Procedure Rules

Under Part 35 of the Civil Procedure Rules (‘CPR’), expert witnesses owe a duty to the Court that overrides any obligation to the instructing party. Their primary responsibility is to provide objective, independent opinions. In all cases, the use of expert evidence must be justified and proportionate.

It is a requirement that expert witnesses are impartial and should not be influenced by those who instruct them. Their opinions should be set out in detailed reports, which include their qualifications, the issues addressed, the methodology used and a declaration of compliance with Part 35 CPR in a compliant statement of truth.

In some cases, it may be that the Court appoints a single joint expert, as agreed upon by the parties, to ensure neutrality and cost efficiency. Alternatively, the Court can also require that, where the parties have instructed their experts, these experts meet to create a single joint report.

The importance of expert independence has been highlighted in case law. In National Justice Cia Naviera SA v. Prudential Assurance Co. Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68, the Court emphasised that expert witnesses must never act as advocates. This principle was reaffirmed in R v. Harris & Ors. [2005] EWCA Crim 1980, which stressed the need for objectivity in expert testimony.

Experts as Advocates

Experts may act as advocates in Alternative Dispute Resolution (ADR) proceedings, such as mediation and arbitration, where they assist in negotiating settlements. However, their role as advocates must at all times be distinguished from that of expert witnesses. In particular, they should be vigilant to avoid potential conflicts of interest, maintain objectivity and ensure compliance with their duties under Part 35 CPR.

An expert who has acted as an advocate in a dispute should not later serve as an independent witness in the same case to maintain impartiality. This was highlighted in Anglo Group plc v. Winther Brown & Co Ltd [2000] EWHC Technology 127, where the Court raised concerns about experts acting in dual roles. Even when advocating for a party’s position, experts must base their arguments on factual analysis and professional expertise rather than personal bias.

The courts have closely scrutinised expert involvement to prevent undue influence or perceived lack of independence. In LIC Telecommunications SARL & Anor v. VTB Capital Plc & Ors [2019] EWHC 1747 (Comm), the Court criticised an expert who openly described themselves as an advocate, warning that such an approach undermined the credibility of their evidence.

Navigating the Criticism of Dual Roles

To mitigate the risks associated with an expert acting as both advocate and witness, parties should clearly define the expert’s role from the outset and decide whether the expert will act as an independent witness or an advocate to prevent conflicts later in the proceedings. Alternatively, it may be more appropriate to engage different experts to act as either advocates or expert witnesses to preserve objectivity and credibility under scrutiny.

Where an expert has previously been involved as an advocate in the case, the instructing party should ensure full disclosure of this is made to the Court and other parties involved so that a proper assessment of the weight to be attached to their evidence can be made.

Conclusion

Experts play a vital role in property disputes by providing technical expertise and independent analysis. Whether acting as expert witnesses or advocates, their contributions help clarify complex issues and assist courts and parties in reaching fair outcomes. However, the Courts have warned against the dangers of experts assuming both roles simultaneously, as this can compromise impartiality. Compliance with Part 35 CPR and adherence to best practices will ensure that expert evidence remains credible, reliable, and appropriately regulated.

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If you have any questions regarding the use of experts as Advocates and Expert Witnesses, or you are a landlord who needs assistance with your tenants, please get in touch with our specialist Property Litigation team by using our online enquiry form or calling 0330 404 0738.