The day after I concluded my evidence in Court, I started my maternity leave.
Returning to work a year later, I found myself reflecting not only on that experience, but also on what it taught me about the role of the expert witness.
Much has already been written about the Cooper v Ludgate House Limited and Powell v Ludgate House Limited judgement since it was handed down last summer. Rights of Light practitioners and legal professionals have explored its legal and practical implications in detail. Rather than revisiting the judgment itself, my reflections are on something different: what acting as an expert witness reinforced about the professional responsibilities of our role.
For most Rights of Light surveyors, the majority of our work involves advising clients. We assess development risk, identify potential infringements, support negotiations and help clients achieve their commercial objectives. Naturally, our focus is on providing the best professional advice to those instructing us.
However, when appointed as an expert witness, that role changes fundamentally.
Under the RICS Expert Witness Practice Statement and the Civil Procedure Rules, our overriding duty is to the Court. We are not there to advocate for the party who instructs us, but to provide independent, objective opinion based on our expertise.
It is a distinction that is easy to describe, but one that carries significant professional responsibility.
An expert witness must be prepared to reach conclusions that may not align with the expectations of those instructing them if that is where the technical evidence leads. Equally, opinions should evolve if new information becomes available. Credibility is built not by defending a client’s position, but through independence, transparency and sound professional judgement.
Having had the privilege and responsibility of acting as an expert witness in this significant Rights of Light case, one lesson has stayed with me. Technical expertise alone is not enough.
The Court is equally interested in how an opinion has been reached.
- Is the methodology appropriate?
- Are the assumptions clearly explained?
- Have alternative viewpoints been considered?
- Has the witness remained within the limits of their expertise?
Ultimately, the strength of expert evidence lies not simply in the conclusion, but in the reasoning behind it.
The experience also reinforced something that is sometimes overlooked. Although expert witnesses are most visible in the courtroom, their greatest value is often realised long before trial. Independent, well-reasoned expert evidence can narrow the issues in dispute, facilitate meaningful negotiations and help parties resolve matters without the need for a hearing.
As development across London continues to intensify, Rights of Light disputes are becoming increasingly complex. With that complexity comes an even greater need for genuinely independent expert evidence.
Since returning to practice, one practical lesson has shaped the way I think about reporting from the outset of an instruction.
Most Rights of Light instructions begin as consultancy work rather than formal expert witness appointments. Yet disputes often crystallise only after redevelopment has progressed, commercial commitments have been made and design flexibility has reduced. By that stage, the costs and consequences of Rights of Light issues can be significantly greater.
Reports prepared to inform early risk assessments or identify neighbouring interests may later be disclosed in proceedings or form part of the background to expert evidence. For that reason alone, I believe every report should be prepared with the expectation that one day it could be read by a Judge, and that is our approach here at GIA.
Clear analysis, balanced language and robust methodology not only improve the quality of advice given, but also provide a sound foundation should litigation ultimately follow.
Perhaps more importantly, these principles reinforce the qualities that define an effective expert witness: independence, transparency and professional judgement.
One year on from Cooper v Ludgate House Limited and Powell v Ludgate House Limited, that is the lesson I have taken away most strongly. The value of an expert witness is not measured by how persuasively they argue a client’s case, but by the confidence the Court can place in the independence of their opinion.
Whether acting as a consultant or as an expert witness, our role is ultimately to provide clear, objective and defensible professional advice. If you’d like to discuss Rights of Light risk, expert evidence or how early reporting can help avoid disputes later in a project’s lifecycle, please feel free to get in touch with me katie.hannon@gia.uk.com.