Monday, 31 December 2018

Expert Witness Round-Up


As we reach the end of another year it is appropriate to reflect on our activities in 2018, and we note that we haven’t written any news about the Smith & Garratt expert witness service.  Senior surveyor Hugh Garratt leads on expert reports, which are produced in accordance with RICS guidance “Surveyors Acting as Expert Witnesses”, currently in its fourth edition.  Hugh is double-qualified as a surveyor and in law, so instructing solicitors and barristers have confidence in his ability to grasp the legal issues as well as to give solid advice on matters such as professional practice, planning, development and historic buildings.

Hugh has two cases going into the new year – one relating to personal injury to a road-user in Wales caused by escaped cattle; the other regarding use of the equitable remedy of proprietary estoppel by unrelated individuals against the direct descendant of a Yorkshire farmer following his death in intestacy.

Past cases include:

  • Boundary definition / personal injury / unmarked boundary / was the injury sustained on the highway or on the harbour side?

  • Surveyors negligence / newly-purchased house almost inundated prior to construction of local flood defences by Environment Agency / value and saleability affected / should the surveyor’s Home-Buyer report have noted the risk, and what is the measure of loss post construction of the defences?

  • Misrepresentation / sale of converted mill in buoyant market / property flooded / market weakened / could the buyer rely on the seller’s assessment of flood-risk, and what is the measure of loss? (Single joint expert).

  • Capital Gains Tax / Principal Private Residence a Grade-I listed mansion in poor condition, requiring enabling development to fund essential repairs / enabling development executed in the grounds / whether or not enabling development took place within the ‘permitted area’ attached to the residence as a PPR and thus relieved of CGT.  (First-Tier Tax Tribunal).

  • Ransom value / development site assembled from back gardens with access to a private street and planning consent obtained / site subject to restrictive covenants / street owner hostile to development / definition of the plot owner’s rights to develop within the scope of the covenants / definition of plot owner’s rights to obtain access and connections to water, drainage, gas, electricity and telecoms / consideration of alternative service routes / consideration of cost of cure / consideration of whether Defective Title Insurance Policy is valid or void. (High Court).

  • Personal injury / employee injured during grouse shoot / HSE improvement notice complied with / HSE subsequently brings prosecution / whether or not compliance with the notice provided prima-facie evidence of breach of employer’s duty of care.

Producing expert opinions is always interesting,” says Hugh.  “Other peoples’ problems are invariably more interesting than one’s own.  Having read the materials, I often sit back and wonder whether, had they tried really hard, the people involved could have landed themselves in as much mess as they appear to do inadvertently!