The Single Joint Expert
The Civil Procedure Rules 35.7 (1) state: "Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to given by one expert only."
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 parties from whom he has received instructions or by whom he is paid.
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 a mbiguous. 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 one party's solicitor acting on behalf of both parties),
- Provision of documentary evidence.
STAGE 2
- On-site the expert will prefer, if the parties agree, to consult with each party in turn prior to undertaking a survey, and the expert will maintain impartiality and openness,
- Detailed, measured land survey.
STAGE 3
- Comparison of documents with survey,
- Writing and serving the expert report.
STAGE 4
- Receive, at each party's discretion, questions written for the purpose of clarifying the expert report,
- Respond to both parties with written answers to such written questions as are submitted by either party.
STAGE 5
- 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.
© Jon Maynard Boundaries Ltd, 2000-2009