How to Instruct an Expert Witness Surveyor (Solicitor's Checklist)

To instruct an expert witness surveyor properly, you need to do four things before any inspection takes place: check the court's permission and the directions timetable, confirm the surveyor's discipline and independence match the dispute, agree the fee basis in writing, and send a letter of instruction that sets out the issues the expert must address. Get those right and the report that follows will be admissible, proportionate and on time. Get them wrong and the evidence can be excluded, cut back on costs, or undermined in cross-examination. This guide sets out a practical checklist for solicitors, litigants in person and property professionals who need to instruct an expert witness surveyor under CPR Part 35 in England and Wales.

Step 1: Check permission and the directions before you instruct

Under CPR 35.4, no party may call an expert or put in evidence an expert's report without the court's permission. In practice this means the instruction should be shaped by the directions order, not the other way round. Before contacting a surveyor, confirm:

• Which field of expertise the court has allowed (for example building surveying, valuation, structural engineering or party wall practice). A report from the wrong discipline will not be given weight.
• Whether the expert is party-appointed or a single joint expert. On the fast track and in lower-value multi-track claims the court frequently orders a single joint expert, which changes who instructs, who pays and how questions are put.
• The deadline for exchange of reports, and any dates for questions to experts (CPR 35.6) and a joint statement (CPR 35.12).
• Any cost cap or budget attached to expert evidence. Fees above the approved budget may not be recoverable even if you win.

If proceedings have not yet started, the relevant Pre-Action Protocol still expects the parties to consider joint or agreed expert evidence. Instructing on a scope the court is likely to permit avoids paying for a report that has to be re-written.

Step 2: Choose a surveyor whose expertise matches the issues

The single most common reason expert evidence fails to persuade is a mismatch between the expert's day-to-day practice and the questions in dispute. A residential valuer is not the right expert for a construction defects claim; a building surveyor is not the right expert on a leasehold premium. Before you instruct an expert witness surveyor, check that they:

• are a member or fellow of RICS (MRICS or FRICS), with current professional indemnity insurance;
• practise in the relevant discipline now, not only historically, and can show recent comparable instructions;
• are familiar with the RICS practice statement for surveyors acting as expert witnesses and with Part 35 and Practice Direction 35;
• have no conflict of interest with either party, the property, or any professional whose work is criticised;
• can meet the timetable, including availability for a joint meeting and, if needed, a hearing.

Ask for a short CV and a statement on conflicts and availability before formal instruction. Survey Merchant matches the discipline to the dispute across its panel of 2,400+ RICS surveyors, whether the matter concerns construction defects, valuation, boundaries, surveyor negligence or dilapidations.

Step 3: Agree the fee basis in writing

Expert fees are recoverable in principle, but only if they are reasonable and proportionate. Agree the basis before any work starts and record it in the letter of instruction or a separate terms letter. Typical UK figures for surveyor expert witnesses are:

• Full CPR Part 35 report: £5,000–£15,000 for a straightforward matter; £20,000–£50,000 or more where there are multiple properties, extensive defects or complex quantum.
• Hourly rate: £150–£300 per hour for reviewing documents, answering Part 35 questions and preparing the joint statement.
• Court attendance: £1,000–£2,000 per day, usually with a cancellation scale if the hearing is vacated at short notice.

Contingency or success-based fees are not acceptable for an expert witness because they compromise independence. Where a single joint expert is appointed, the parties are normally jointly liable for the fee unless the court orders otherwise, so the split should be agreed in the joint instruction. For a fuller breakdown, see the guide to expert witness costs in the UK.

What should a letter of instruction to an expert witness surveyor contain?

The letter of instruction is disclosable in substance: CPR 35.10(3) requires the report to state the substance of all material instructions, and the court can order disclosure of the instructions themselves if it considers the summary inaccurate or incomplete. Write it on the assumption that the other side and the judge may read it. A good letter of instruction includes:

• The parties, the property and the nature of the dispute, with the claim number if proceedings have been issued.
• The questions the expert is asked to answer, framed neutrally. "What is the cause of the cracking to the rear elevation and what remedial work is reasonably required?" is a proper question; "Please confirm the builder's work was defective" is not.
• The expert's duty: a reminder that their overriding duty is to the court under CPR 35.3, that the report must comply with PD35 and the RICS practice statement, and that it must contain the required statement of truth.
• The documents supplied, listed in a schedule (pleadings, previous reports, photographs, specifications, correspondence, title documents), and a note of what the expert has not been given.
• Access and inspection arrangements, including whether the other side must be invited to attend and whether opening-up or testing is authorised.
• Timetable: date for a draft (if the court permits one), date for the final signed report, dates for questions and the joint statement.
• Fees, invoicing and who is responsible for payment.

Keep advocacy out of the letter, and supply unhelpful documents as well as helpful ones. An instruction that tells the expert what conclusion to reach invites the court to discount the report, and an expert who was not shown a document will be undermined at trial.

Managing the instruction after the report is delivered

Instructing does not end when the report arrives. Three stages follow that should be built into the original instruction and fee agreement:

• Written questions (CPR 35.6). Each party may put written questions to the other side's expert, or to a single joint expert, within 28 days of service of the report. Questions must be for clarification only unless the court or the other party agrees.
• Experts' discussion and joint statement (CPR 35.12). The court will usually direct the experts to meet, without lawyers, and produce a statement of the issues agreed and not agreed, with reasons. Instructing solicitors should not draft or edit that statement.
• Trial or hearing. The expert may be required to attend, sometimes to give evidence concurrently with the opposing expert. Confirm dates early and agree the attendance fee at the outset.

All communication with a single joint expert must be copied to the other side. The earlier post on when you need an expert witness surveyor covers the decision to instruct at all; the guide to the contents of a CPR Part 35 report explains what the finished document must include.

Instruct an expert witness surveyor through Survey Merchant

Survey Merchant provides RICS-qualified surveyors as expert witnesses for property and construction disputes across the UK and Ireland. The panel's experts prepare CPR Part 35-compliant reports, act as single joint experts or party-appointed experts, answer Part 35 questions, take part in joint discussions and give evidence at hearings in the county court, High Court and Technology and Construction Court. Coverage includes London, Leeds, Surrey and every major city in between. Send the claim details or draft directions through the expert witness service page, use the contact form, or call 0204 579 8270 for a fixed-fee quote and a conflict check.