Usually, two separate Boundary Surveyor Reports …
Generally, in the case of a boundary dispute between two parties which progresses to a point where it might ‘go legal’, each party appoints their own surveyor to measure and report their opinion of the situation. Professionally, each surveyor should report to their client in a wholly honest and completely unbiased manner and, in fact, they are not doing their client any favours to report in a skewed or biased way that gives their client an incorrect view of the situation and their likelihood of legal success. However, the reality is that there is always the temptation for a boundary surveyor to lean, possibly even sub-consciously, in the direction of their client’s viewpoint. This can be the case for any type of boundary report, including CPR35 Expert Witness Reports in court. From some reported comments from Judges, there seems to be an acceptance that, whilst an Expert Witness has not contravened their obligations to the Court, they may have found a conclusion which suits their client and they have stuck with that.
The consequence, probably almost inevitably in such circumstances, is some further entrenchment of the views and stance of each side to the dispute albeit that, hopefully, each party’s legal advisors and boundary surveyors are still, in the background, encouraging the potential for some discussions and possibly compromise in the hope of keeping this matter from reaching Court. However, for all of this time, as the dispute ‘rumbles on’, both sides are ‘racking-up’ their costs, which might have the effect of further entrenching positions in that a party may feel that they reach the point where they have spent too much and have ‘come too far’ to stop now.
Consider the alternative of a Single Joint Surveyor
An alternative, and a role in which we have been appointed to on many occasions, is a Single Joint Surveyor. This may be a Single Joint Expert Surveyor to provide a CPR35 Single Joint Expert Report to the Court but might otherwise be at an earlier stage in proceedings, where both parties agree to appoint a Single Joint Surveyor and usually also agree to abide by the conclusions of this surveyor.
Benefits of a Single Joint Surveyor
The potential benefits are clear in that this approach reduces the potential for further reinforcing to each party that their stance is correct, thus hopefully reducing the potential for additional entrenchment. Also, hopefully, this approach can bring a swifter conclusion to the dispute, reducing the duration of the inevitable stress for both parties and reducing costs, which, on occasions, can rapidly spiral to many tens of thousands of pounds for each side.
Requirements of the Single Joint Boundary Surveyor
The Single Joint Survey report should provide a completely and absolutely wholly unbiased report.
The fact that both parties to the dispute are relying upon the Single Joint Surveyor is such that this places a significant obligation upon the surveyor to do their very best and utmost to consider every possible factor and potential piece of evidence that they can find in their quest to conclude the most likely location of the intended legal boundary. In this situation, there is no room for the comfort of a client or their lawyer querying any aspects of the evidence considered in a draft report. The Single Joint Boundary Surveyor must, in a completely even-handed way, be able to fully appraise all of the evidence provided to them plus search for other evidence which might assist with their best opinion of the most likely location of the disputed boundary.
Both parties must appreciate that, often, it is not possible to be absolutely certain of the location of a disputed boundary and so it may well be that the Single Joint Surveyor can only do their best to reach the most appropriate conclusion but there can never be any guarantee that the opinion provided is correct.
Of course, the Single Joint Surveyor must be fair and unbiased and not swayed by whether they ‘take to’ one party or the other or whether they feel sorry for either party; that goes without saying but also we consider that it is important that not only is there this impartiality but also there must be seen to be this transparent impartiality. Unless there are specific directions and explicit instruction and acceptance from both parties, we always require that all emails are copied to both parties and that there should be no face-to-face meetings of the surveyor individually with either party. This means, for example, that, at the initial meeting for site inspections and measuring, either both parties should be present or that neither party should be present.
Maybe worth a thought ….
There will be many occasions probably when the appointment of a Single Joint Boundary Surveyor is not an option for various reasons, including probably often that at least one of the parties has no interest in this more conciliatory approach rather than the normal adversarial option of two surveyors and the possible ultimate destination of Court. However, if both parties can bring themselves to take this route and, of course, place their trust in the thoroughness, even handedness and professionalism of a single surveyor, there can be significant benefits. The normal arrangement for the appointment of a Single Joint Surveyor is that one party will suggest the names of three surveyors and then the other party will choose one.
How Smith Marston can assist
Many surveyors have reservations about the prospect of any kind of expert witness work and the possibility of appearing as an expert in court. Probably more are disinclined to take on Single Joint Surveyor appointments. Philip Smith deals with boundary dispute matters for Smith Marston. Philip has well over 20 years of experience of boundary matters and is an RICS Accredited Expert Witness with boundary matters as their area of expertise. Philip has years of experience of acting as an Expert Witness and taking on the role of a Single Joint Surveyor. This service is offered nationally from our various regional offices.
