New expert witness guidance for RICS members

Background

The draft version of RICS professional standard “Surveyors acting as Expert Witnesses” was published in late August and is out for consultation until 7 October 2025. It updates the requirements placed on all RICS members who are instructed by solicitors and other parties to act as expert witnesses in a mixture of settings. Areas covered include conflicts of interest, terms of engagement, fees, written expert reports and the roles of advocate and expert.

The latest edition follows RICS’ practice alert in April 2025 warning members of the risks posed when acting in housing disrepair cases. The introduction of ‘Awaab’s Law’ placed stringent requirements on social housing providers to investigate and remedy health hazards, with the RICS highlighting the risk of the same expert being appointed multiple times which could affect the impartiality of the witness.

The 5^th edition draft presents the obligations and best practice in this context. It now has application at a global level (i.e. not just England and Wales), and is split into two sections:

• Professional Standard: this sets out mandatory requirements and recommended best practice.
• Supplementary Information: non-mandatory guidance that provides information to support RICS members and clarifies further the requirements set out in the Professional Standard.

Key changes: Fees, Declarations and Oral Evidence

The Professional Standard proposes a tightening of the requirements rather than wholesale changes. Members need to look closely at the changes which are subtle in places but could have more far-reaching consequences in other areas. Some of the proposed changes in the requirements, as set out below:

(3.3.2) Conditional fees

There is more emphasis than in previous editions on the issue of conditional fees, including setting out strict “exceptional” circumstances in which they might be considered acceptable.

(4.6.1.4p) Declarations to be stated in written reports

This sees several subtle changes to the six declarations stated in the previous edition of the Professional Standard with an additional sentence confirming that the expert recognises the “ongoing duty and will forthwith advise the party instructing me if between the date of the report and the trial there is any change in the circumstances which alters the above declarations or my affirmation of them.”

(4.6.2.2) Amending the contents of reports

There is an explicit requirement on members to require those instructing them, lawyers and any other party who alter their reports to correct the alteration if it does not accord with, or distorts, their true opinion. This is an extension of the current requirement to ignore or disregard suggestions which do not accord with the member’s opinion. If the corrections are not made, members are called on to report those concerned to their professional body, refuse any further instructions until the correction is made and notify the tribunal of any concerns (in circumstances where it has been sent the report).

(4.7) Oral evidence at a hearing

This section now comes under the requirements of the Professional Standard. It requires that:

• For evidence only given orally, a specific declaration to the tribunal around:a) limiting the scope of the evidence to the expert’s areas of expertise;b) understanding the overriding duty to the ‘tribunal’ in giving truthful/impartial/independent opinions covering all relevant matters; andc) compliance with the requirements of the tribunal and the Professional Standard.
• “Full, clear and properly contextualized” evidence is provided.
• There is no breach of the oath under which evidence is given.
• The client and the tribunal are informed of any changes in opinion following other evidence or questions asked.

 (4.5.4) Matters arising during the course of the appointment

There is a new requirement for members to agree with the client/solicitors when attendance at the hearing is required. Members should consider which parts of the hearing may be of relevance to their expert evidence.                                                                                                                                                                       

(4.4.2) Meetings

There are new stringent requirements that an expert witness “must only meet with other expert witnesses during an instruction with the prior knowledge and consent of their client.” Further to this, if a meeting results in the prospect of a settlement being reached then this must be reported by the member to the instructing party. The 5^th edition also introduces the need to report a material change in opinion where a joint statement has already been signed.

Supplementary Information: Evidence and Dual Roles

Previously referred to as a “Guidance Note”, the Professional Standard is accompanied with the Supplementary Information which expands on the requirements but is considered guidance rather than a mandatory document.

One of the newest additions is the suggestion that members (and all expert witnesses for that matter) provide full evidence to the client and the other side before experts reports are exchanged. This is punctuated by the comment that “withholding evidence as a tactical approach… is regarded as unprofessional.” The ramifications of such conduct are stated as a possible costs award against the client and–in respect of the member–a charge of misconduct.

Like the Guidance Note, there is commentary on the dual role of a surveyor in terms of being both an advocate and an expert witness (i.e. at the same time). Reference is made to the prospect of this joint role being acceptable in lower property tribunals as it can give cost/delay benefits but suggests that this can be at the expense of the weight attached to evidence. The section references the Professional Standard and, overall, the content is pared down across the two documents, possibly due to the limited instances in which a dual role is likely to be appropriate and performed.

Final thoughts

The 5^th edition is a timely reminder of the requirements placed on members, particularly when market activity is low and surveyors consider expanding into other areas of work. The key thread running through the proposed document is impartiality and disclosure of circumstances which could impair the evidence that a member gives.

There are eleven questions to answer as part of the consultation which mainly seeks feedback on the proposed changes. Newmark UK will be submitting a response to the consultation, with the final document expected by early 2026.

Please contact Andrew Sack and Adam Rhead to discuss the proposed changes in more detail.