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Building Surveying Expert Witness

Gordon Colbourne, Associate Partner-Building Surveying at Daniells Harrison Chartered Surveyors, gives us an insight into the many expert witness cases he has been involved in recently.

What is an Expert Witness?

An expert witness is anyone who has specialist knowledge of a particular subject, upon which he or she may give an opinion.

When does an expert witness get called in?

A building surveyor can be called to act as expert witness and provide an opinion on a building matter when a dispute arises between a property owner and builder/contractor, that cannot be resolved between the parties and has escalated to legal action.

Building defects might occur as a result of poorly formed new works or inappropriate alterations carried out on a property or defects may have been built into the original structure at the time of construction. For example, defective replacement window installation, undermining of structures or defective workmanship or construction. The disputed value of any work carried out can also lead to conflict between the parties.

building surveying expert witness

Exposed damp proof course to outbuilding

Appointments can be made by one or both parties. Where both parties instruct their own Expert Witness report it is usual to have both experts meet to consider agreeing common ground and for the remaining matters in dispute to be the focus of the respective reports. However, both experts must still act impartially and present an unbiased opinion for use by the Court – a CPR (Court Civil Procedure Rule) 35 compliant report.

Often, the judge will instruct both parties to agree on the appointment of a single expert witness, and may specifically require a Chartered Building Surveyor, to provide an opinion to the Court on the cause of any defect, quality of workmanship or value of work completed. Unless specifically instructed, liability is determined by the Judge.

Typically, Solicitors appointed by one party will appoint a building surveyor on a joint agreed basis; in any event, the expert remains impartial and unbiased, whatever the outcome of his or her investigation; the opinion is expressed in a report for the Court, although both parties receive the same report.

defective buildings expert witness

Alleged defective sanitary connections

Where DHCS are appointed, we may visit the affected property or inspect the contract works, consider evidence provided and relied upon by each party (their Statement of Truth), form an opinion on the matter and provide a single report to the Court outlining the facts of the case; for example, explaining what we’ve seen, and provide an independent view on why the defects have occurred.  This report is essential in helping the Judge to determine if there is any liability or wrong-doing by either party and, if so, to what extent.  Our report can take two to four weeks to compile, depending on the complexity and urgency of the case.

We also get involved in pre-court actions where mediation may have taken place between the two disputing parties but they are keen to agree a settlement out of Court.

The majority of expert witness cases we are involved in require just the written report but occasionally we do attend Court Hearings if the case is more complex.

Recent Expert Witness Case Study

Timber-framed out-building to residential property, Hampshire

The property owners commissioned one contractor to supply a timber frame for a new out-building, and another contractor (the litigating party) to construct the base for the frame, build the surrounding features and services and fit it out.

An incident occurred during the frame delivery and construction phase that caused damage to the driveway and therefore access problems, immediately causing a deterioration in the relationship between the contractor and employer (property owner). As the work progressed, the relationship worsened, to the point where the employer would not pay all or part of the invoice for alleged defective works completed and subsequently dismissed the contractor.  The contractor took action in the small claims court for recovery of his costs.  In response, the employer alleged multiple defects in the property fit out.  The Court appointed Daniells Harrison Chartered Surveyors to provide an Expert Witness report to help inform the Court and resolve the dispute.

Gordon Colbourne took on the case.  He had to meet the contractor and employers separately as they refused to speak to each other.  The meeting on site with the contractor was rather tense! Gordon’s report found in favour of both parties.  The contractor had made mistakes and owed a duty of care to the employer, however Gordon found that the employer should have paid for the work that was completed to a satisfactory standard.  The Judge reached a settlement which, whilst not entirely to each parties’ satisfaction, reflected the report findings fairly.

property expert witness

Side stair to first floor of outbuilding with alleged defective foundation pads

building surveyor expert witness

Front façade of timber framed outbuilding with alleged defects

Defective window installation

Building defects were alleged in the fabrication, supply and installation of replacement timber framed windows. The employer (homeowner) declined to pay anything toward the cost of the replacement windows, citing quality of construction of the windows and poor installation of the first phase. A Solicitor acting for the window company instructed Gordon as joint agreed Expert.

Our enquiries established that the window installation was poorly carried out, the colour applied to timber and aluminium although identical in terms of Pantone colour code appeared to have a slightly different shade according to the rough timber or smooth aluminium it was applied to.

Our report informed both parties sufficiently for them to resolve the matter in an out-of-Court settlement.

Expert Witness enquiries have been averaging one a month over the past year; one quarter have progressed to full instructions and either a Hearing or out-of-Court settlement. We have received instructions from Courts or Solicitors across the South, both near to home in Hampshire and as far north west as Swindon and north east in London.

For any building surveyor expert witness enquiries please contact Nick Eames or Gordon Colbourne
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