The
philosophy behind the way that I work, and what it means
to the outcome of your boundary problem.
I believe that there are two stages to
solving a boundary dispute:
>
analysing and
determining where the boundary is or should be
> negotiating a
settlement based on that analysis.
ANALYSING BOUNDARIES
When analysing a boundary problem I will come to an
impartial opinion on where the boundary should be. This
means that my opinion does not always place the boundary
where my client would like it to be.
The reason for my impartiality is simple. If I give you
advice that is not supported by statute or by case law,
then I am doing you a disservice. If you should take the
matter to court on the basis of such advice then you are
very likely to lose your case. On top of this, the Civil
Procedure Rules require an expert witness to be
impartial: I could not give you one answer and give the
court another.
Impartiality comes naturally to chartered land surveyors.
We are accustomed to our work being published, usually in
map form, for anyone to see any errors that we make. For
this reason, we adopt self-checking measuring procedures
to ensure that we make no errors, which gives us an
advantage over other professionals in investigative
boundary work.
Working
for both parties in a dispute
Because my opinion is impartial, I am well placed to act
on the joint instructions of both parties to a dispute,
saving you both money. This will also remove the
possiblity of a disagreement between two experts that can
arise when one side engages a chartered land surveyor and
the other side engages a less appropriate expert. Such a
disagreement between experts usually leads to a prolonged
dispute with increased costs.
Analysing boundaries that are party walls
If the boundary problem exists within a party wall then I
would rather that you engaged a chartered building
surveyor, whose training and experience are far better
suited to your problem than are my own.
NEGOTIATING
A SETTLEMENT
There are a number of possible scenarios:
Agreement
If both sides accept the surveyor's report there will be
no need to engage further professional help, except perhaps the
assistance of the surveyor in lodging a boundary
declaration with HM Land Registry.
Mediation
If, in spite of the surveyor's report, there remains some
difference between the parties, you will be well advised
to seek to resolve these through Alternative Disputes
Resolution (ADR) (mediation or arbitration). In fact
the courts are likely to refuse to hear your case if you
have not first tried to reach a settlement through ADR.
Court
Only if there are very serious differences between you
should you consider taking the matter to court. You will
certainly need to engage a solicitor, who may advise you
to also instruct a barrister.
Whilst I am prepared to appear in court as an expert
witness, I will not act as my client's advocate. To do so
would put me in the difficult position of having to act
both for the court and for my client at the same time.
The court will demand my impartiality whilst my client
will demand my loyalty to his own cause, which may not be
best served by an impartial opinion.
NO WIN - NO FEE ..... NO! NO!
Some professionals offer to work on a no win - no fee
basis. No win - no fee is in effect the ultimate
performance pay scheme. As such, it is an inappropriate
scheme on which to base an expert witness' fees. If your
case should go to court, then it is the expert's duty to
report the facts so that the court can determine the
case: the expert's performance in reporting the facts
will not affect the court's decision. I do not accept no
win - no fee commissions. This applies both in a court
case and in the simple reporting to a client of an
unwelcome opinion.
This page was updated on 01 May 2001
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