Evidence is Everything

A cautionary tale on the importance of inspection records

Let’s imagine for a moment that the worst has happened. A professional negligence claim has been made against you. It relates to a valuation inspection that you carried out many years ago. You find yourself in the witness box at trial. Your credibility and competence as a surveyor are under the spotlight.  

 

This was more or less the scenario in the case of Hubbard -v- Bank of Scotland in 2014. The Court of Appeal was poring over a surveyor’s (Mr Handley’s) inspection of a four-bedroom detached house in Wolverhampton some nine years earlier, in 2005.

The Court of Appeal quickly seized on the fact that Mr Handley’s inspection notes recorded the following: 

"… NB* Rear bedroom window frame distorted, stepped crack to side wall. Category 0: no RMNFA (no recent movement, no further action) – brickwork displaced slightly and slight cracks to rear elevation category 0. Repaired on rear wall also …"

The Court of Appeal then commented that the judge in the High Court:

“… was faced with the task of establishing what was in fact the condition of the Property in 2005 at the time of Mr Handley's inspection. He had evidence from later instructed experts, such as a Dr Rutherford, but Dr Rutherford first inspected the Property in 2010 and was having to work backwards from the condition of the Property at that date. The judge concluded in the end that Mr Handley's notes provided the best evidence available of what was visible in 2005 in terms of cracking at the Property. Those notes had the benefit of being contemporaneous. In addition, there was a contemporaneous photograph showing evidence of cracking, identified as photograph B364. The cracking shown in that photograph reflected Mr Handley's notes …” 

Mr Handley was cleared of negligence and the purchaser’s appeal was dismissed. In no small measure, his inspection notes saved the day.

Fast forward to another professional negligence trial that, just last month, received a lot of coverage in the media, Paul Ryb -v- Conways Chartered Surveyors. In this case, the defendant-surveyor, Mr Conway, did not fare quite as well. It was found that his work, in failing to detect the presence of Japanese Knotweed at the property, fell “short of the standard … required of a reasonably competent surveyor ... ”  

This was a notable decision because the judge described Mr Conway as being “old school”.  It may well be thought that being “old school” is a good thing. However, the judge definitely meant this as a criticism of Mr Conway and made a point of remarking that “… in the course of [Mr Conway’s] survey, he had taken no photographs. He had drawn no plans. He had taken no measurements. This job gave rise to no special features that singled it out in his memory …”

Just as the availability of inspection records helped Mr Handley (in the Hubbard case), therefore, the absence of records was a key factor that led to the failure of Mr Conway’s defence at trial.

The RICS Regulation pamphlet entitled “Audit trail - your first line of defence” is well worth a read on this subject. It cautions that: “Too often vital information is contained only in the memory of the valuer.”

As a surveyor, the effective documenting of your work - as you carry it out - is a strong indicator of professionalism. At no stage is this more important than during the inspection of the subject property. Good and clear inspection records demonstrate that care was taken. More than that, they provide critical insight for the Judge into:

  • what could be seen - and couldn’t be seen - during the inspection. (There is no-one better placed than you to give evidence of that fact); 
  • your thought processes and reflections about the property;  
  • your methodology and the sequencing of your approach;
  • the formation of your decisions and weighing up potential issues;
  • your valuation rationale.      

Often, the more ‘raw’ your inspection records the better (provided that notes are decipherable, of course). Templates and checklists are useful for ensuring a structured and consistent approach but try not to rely too slavishly on these.  Evidence recorded in this way can sometimes present as overly formulaic or even contrived or ‘cleaned-up’.  

Your defence lawyer will love you if you are able to produce original voice or video files that were recorded ‘live’ during the course of the inspection. In the Paul Ryb case, damages of £50,000 were awarded against Conways, plus legal costs of £90,000. Against that backdrop, it is hard not to consider investing a few hundred pounds in a ‘GoPro’ solution (or similar) as a protective measure against claims.
 

A photo of Nik Carle

Nik Carle

Partner, Browne Jacobson LLP [email protected]