This commentary represents the views of the EWI alone and does not constitute an interpretation of, amendment to, or substitute for the RICS professional standard and practice guidance.
Surveyors acting as Expert Witnesses Professional Standard, Global
The RICS has recently published the 5th edition of its Surveyors acting as expert witnesses professional standard (‘standard’). The purpose of this mandatory standard is to support best practice, global consistency and the public interest in expert witness services. The standard is supported by a practice guidance document, Additional guidance for surveyors acting as expert witnesses, which sets out supporting information and expected practice for RICS members. The standard will be effective from 30 November 2026. Further details on the standard and the practice guidance are available at: Surveyors acting as Expert Witnesses
We participated in the RICS consultation on the draft standard, and we are pleased to note that most of the issues we raised have been addressed in the final published standard and practice guidance. However, we continue to have concerns that the standard and the practice guidance may have the potential to mislead experts into not fully complying with the applicable rules and regulations, which in all circumstances will take precedence over the standard and the practice guidance. Members should always refer to, and fully comply with, the applicable rules and regulations when applying the standard and practice guidance.
Note, in the following discussion we distinguish between “RICS members” and “Members”, the latter being experts who are both EWI and RICS members.
Professional standard
We have set out the provisions and paragraphs of the standard and the practice guidance that Members should apply with particular care, being especially mindful of the applicable rules and regulations.
A global standard
The standard applies to RICS members globally. The RICS notes that the standard has been principally informed by UK jurisdictions, but that its principles will support RICS members outside these jurisdictions (paragraph 1.3.1).
The standard clearly states that the local laws or rules take precedence where there is a conflict with the provisions of the standard (paragraph 1.3.3). However, we are concerned by the approach taken by the RICS of applying the standard globally, as acting in jurisdictions outside the UK may require Members to determine and make significant departures from the standard. Members should, therefore, take particular care in applying the standard when they act in jurisdictions outside the UK, keeping uppermost in their mind that the laws and regulations of the jurisdiction in which they are acting always take precedence over the provisions of the standard. It is worth noting, in this regard, that the requirement to outline instances of departure from the standard to the tribunal and instructing party, does not apply when the departure is required by local laws or procedural rules (paragraph 1.2.7).
The RICS seems to appreciate the potential challenges created by this approach, noting that:
“During the course of the development of this standard, our governance processes raised important points relating to the local application of the standard, which have been considered by the Standards Committee. It is recognised by the RICS that a significant number of members practice as expert witnesses in jurisdictions with very different requirements from each other. Although the standard provides a carve-out for local rules and laws that conflict with the requirements of the standard, RICS is actively considering how to improve the interaction between local rules and the mandatory requirements imposed on members.”
Conditional and deferred fees
Paragraphs 3.3.2.1 and 2 of the standard state that RICS members must not, except in exceptional circumstances, undertake expert witness work where they are appointed on any form of conditional, deferred fee, etc. This is reinforced by paragraphs 3.3.2.1-3 of the practice guidance. We support these statements. However, we are concerned that the description of the exceptional circumstances set out at paragraph 3.3.2.3 of the standard may not in fact describe as ‘exceptional’ the circumstances in which RICS Members are permitted by the standard to accept such fee arrangements.
We recommend that Members avoid all instructions given on the basis of the fee arrangements described in paragraphs 3.3.2.1 and 2 and do not seek to apply the ‘exceptional circumstances’ test set out in paragraph 3.3.2.3.
Expert discussions and Joint Statements
Highlighting advantages, disadvantages and appropriateness
Paragraph 4.4.1 of the standard states that RICS Members:
“must raise with those instructing the possible advantages, disadvantages and appropriateness of:
a communicating with the other parties in an attempt to agree facts and to clarify and narrow the differences between parties at as early a stage as possible
b identifying, with counterpart expert witness(es), the issues in dispute, the reasons for any differences of opinion and the actions that might be taken to resolve outstanding issues between parties, and
c preparing a statement for the tribunal showing:
i those facts and issues that are agreed, and
ii those facts and issues that have not been agreed, along with reasons.”
Members should apply this provision carefully in the light of the applicable rules and regulations which generally provide for instructing parties to agree the advantages, disadvantages and appropriateness of expert discussions. For example, CPR 35 Practice Direction 9.1 requires that:
“Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so when.”
Paragraph 70 of the Guidance for the Instruction of Experts in Civil Claims
“The court has the power to direct discussions between experts for the purposes set out in the Rules (CPR 35.12). Parties may also agree that discussions take place between their experts at any stage. Discussions are not mandatory unless ordered by the court.”
Without prejudice
Paragraph 4.4.2 of the standard states that RICS Members:
“taking part in expert witness discussions must agree, before each discussion commences, whether the discussion is to be held on a ‘without prejudice’ basis.”
Paragraph 4.4.13(b)(i) of the practice guidance states:
“reaffirm at the outset that the meeting is being convened on the basis of ‘without prejudice’ discussion”
Members should apply these paragraphs carefully in the light of the applicable rules and regulations which will generally provide for the parties to determine whether the expert discussion will be held on a without prejudice basis. For example, CPR Part 32.12(4) and (5) states that:
“(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
“(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.”
Paragraph 78 of the Guidance of the Instruction of Experts in Civil Claims states that:
“The content of discussions between experts should not be referred to at trial unless the parties agree (CPR 35.12(4)). It is good practice for any such agreement to be in writing.”
Purpose
The practice guidance sets out the purposes for the expert discussion at paragraphs 4.4.4 and 4.4.5:
“4 The purpose of discussions between expert witnesses is to facilitate, particularly in the absence of specific instructions, a speedier resolution of the dispute.
“5 The purpose of meetings between the expert witnesses is to narrow the differences by discussion and achieve a greater understanding of the issues in dispute, so that the tribunal’s time and resources can be focused on the areas of dispute.”
Members should always refer first to the applicable rules and regulations for the purpose of the expert discussion. For example, CPR Part 35.12(1) states:
“The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –
(a) identify and discuss the expert issues in the proceedings; and
(b) where possible, reach an agreed opinion on those issues.”
CPR 35 Practice Direction 9.2 states:
“The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.”
Agenda
Paragraph 4.4.13(a)(iii) of the practice guidance states that prior to the expert discussion RICS members should:
“establish with the opposing expert witness whether an agenda or skeletal expert witness reports are necessary and, if so, their contents. It is good practice for you to create at least a template to focus on the issues that need to be discussed and to identify any relevant material you intend to introduce or rely upon in the discussions. Any agenda should be neither hostile nor partisan.”
Members should apply this paragraph carefully in the light of the applicable rules and regulations which generally provide for the parties to agree the agenda of the expert discussion. For example, CPR Part 35 9.3 states that:
“Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.”
Settlement
Paragraph 4.4.4 of the standard states that:
“If a settlement can be seen to emerge from a meeting of expert witnesses, the member must report this to those instructing, in order to assist the parties themselves to develop such opportunities and to take instructions if appropriate.”
Although, paragraph 3.1.4 of the practice guidance states that “[y]ou should not seek to resolve the parties’ dispute in your capacity as an expert witness.”
Members should apply paragraph 4.4.4 carefully in the light of the applicable rules and regulations which generally state that experts should not seek to settle the proceedings. There may be a fine line between watching for and reporting emerging grounds for a settlement and seeking to settle the proceedings. For example, CPR 35 Practice Direction 9.2 states:
“The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.”
Paragraph 71 of the Guidance of the Instruction of Experts in Civil Claims states that “[experts] are not to seek to settle the proceedings.”
Range of opinion
Paragraph 4.6.1.4(h) of the standard states that:
“if factual assumptions within the report are reasonably capable of giving rise to a range of informed opinion on the matters dealt with in that report:
i summarise the range of opinion and its sources
ii explain where the member’s opinion sits within that range, and
iii give reasons for the member’s own opinion.”
Members should apply this provision carefully as it has the potential to lead experts not to provide a range of opinion where one is required by the applicable rules and regulations.
For example, under CPR an expert must CPR Practice Direction 35 3.2(2) states that an expert report must:
“where there is a range of opinion on the matters dealt with in the report –
(a) summarise the range of opinions; and
(b) give reasons for the expert’s own opinion”
Paragraph 59 of the Guidance for the Instruction of Experts in Civil Claims refers to:
“the mandatory summary of range of opinion”
Declarations
Members should take particular care in applying the declaration set out at paragraph 4.6.1.4(o) of the standard. This is could be incomplete based on the requirements of the various jurisdictions and may, because it is written into the standard rather than referencing the original, be become out-of-date. Therefore, Members should always refer to the applicable rules and regulations for the required declarations.
For example, the declarations set out in the standard do not include the requirement under CPR that the expert must state that they are aware of the requirements of Part 35, the practice direction and the Guidance for the instruction of experts in civil Claims 2014. Although, these are referenced in the practice guidance at paragraph 4.6.7.
Statements of Truth
Paragraph 4.6.4 of the practice guidance states that:
“The requirements for statements of truth may differ between jurisdictions and tribunals. A tried and tested example is that set out in the Civil Procedure Rules in Practice Direction 35. This is the required form of the statement of truth when working under these rules; it is also likely to be accepted as a form for the statement of truth in other jurisdictions”
We recommend that Members always ensure that they are using the correct statement of truth for the jurisdiction in which they are acting. In our view, it would be both unwise and unnecessary for any expert to assume that the statement of truth for civil proceedings in England and Wales will be accepted in other jurisdictions. If you do so, make sure you remove references to the Civil Procedure Rules, Part 35, The Practice Directions and the Guidance for the Instruction of Experts in Civil Claims.
Attachment of CV
Paragraph 4.6.1.7 states that “A fuller description/CV can be attached as an appendix”.
We recommend that Members should (rather than can) attach a fuller CV as an appendix.
Immunity of experts
Paragraph 3.2.1.7, which deals with the immunity of the expert witness, does not discuss professional indemnity insurance. Although paragraph 3.2.1.3g states that RICS members should check whether their work as an expert witness will be covered by adequate and appropriate professional indemnity insurance. We believe it is essential that Members obtain appropriate professional indemnity insurance for their expert witness work.