Evaluating Evidence Peter McCrea BSc DipArb FRICS FCIArb Member Upper Tribunal (Lands Chamber)
National Justice Compania Naviera SA v Prudential Assurance Company Limited [1993] 2 Lloyds Rep 68 (“The Ikarian Reefer”) • Independent • Objective, unbiased opinion • State facts and assumptions • Consider facts against • Be clear when question outside expertise • State if insufficient data available • Change view after exchange of reports? • Include documents if referring to them
Who is giving evidence?
“17.1 When appearing at a VT without legal representation (as is usually the case), the surveyor Draft RICS Guidance Note: and the VO is each combining the “Rating Appeals” 4 th edition roles of three individuals who would usually be present at a Consultation Document hearing in the High Court or Upper Tribunal: counsel (advocate) the instructing solicitor and the valuer as an expert witness…”
“The roles of advocate and expert witness are very different, requiring distinct skills, and cannot normally be carried out by the same person. However, in certain circumstances some tribunals, usually lower order tribunals, do allow surveyors to act in the same case both as surveyor- advocate and as expert witness where it is in the public interest, and where not allowing such a dual role would limit access to justice by certain parties.…”
“14.9 Surveyors and VO’s intending to appear Draft RICS Guidance Note: before a VT are advised to “Rating Appeals” 4 th edition be aware that their Consultation Document primary duty in giving evidence is to the VT and that will override any duty to their employer…”
“14.10 Surveyors and VOs may also appear at the VT in the “dual role” of both advocate and expert witness where they are satisfied that it is Draft RICS Guidance Note: appropriate to do so. The VT is normally happy for surveyors and VOs “Rating Appeals” 4 th edition to adopt the dual role, as it would in Consultation Document most cases be disproportionate to retain two people in separate roles. But the parties are advised to consider whether there are any features of the particular case (eg the need for extensive or detailed legal representations) that might make it appropriate to separate the roles …”
“14.11 Where surveyors and Draft RICS Guidance Note: VOs are appearing in the dual “Rating Appeals” 4 th edition role it is essential that they Consultation Document distinguish at all times between the two roles, whether in oral hearings or in written representations.…”
“17.2 At the hearing it is essential that, when each party is acting (a) as an advocate, and (b) as an expert witness, the two roles are kept Draft RICS Guidance Note: entirely separate. As VT hearings are “Rating Appeals” 4 th edition normally less formal, the separation of the roles need only be made clear Consultation Document at the change from advocate to witness by the statement ‘I will now give my evidence’. The surveyor or VO may also wish to consider moving position (perhaps from standing to sitting) to emphasise the change of role.…”
“17.3 When acting as advocates, the surveyor and the VO deal with matters of law and present their respective Draft RICS Guidance Note: cases: they address the tribunal and “Rating Appeals” 4 th edition make submissions, but must never seek Consultation Document to give evidence in this role. They should be familiar with and comply with the RICS PSGN Surveyors acting as advocates and in particular PS 5 and 6 which cover conduct as an advocate as to statements of case, submissions and evidence.”
“17.4 When acting as expert witnesses, they must restrict themselves to evidence and Draft RICS Guidance Note: not make legal submissions. “Rating Appeals” 4 th edition They are concerned with Consultation Document matters of fact and opinion (i.e. their expert evidence), rents, assessments, valuations and similar matters.”
“17.5 In either capacity it is their duty to assist the tribunal. As an expert witness or a witness of Draft RICS Guidance Note: fact, they must provide their “Rating Appeals” 4 th edition evidence openly and honestly and Consultation Document must not seek to conceal any relevant matters. As an advocate they may emphasise a point in a particular way, but not to the extent that they mislead the tribunal.”
How are they being paid?
“ You should not undertake expert witness appointment on any form of conditional or other success-based arrangement including where those instructing you are engaged on such a basis…”
“15.7 Surveyors are advised to be clear that any such fee arrangement may be incompatible with the duty of impartiality and independence required of an expert and that, Draft RICS Guidance Note: accordingly, conditional fees may not “Rating Appeals” 4 th edition be appropriate to expert witness Consultation Document work. Surveyors acting in the dual role of advocate and expert witness who intend to undertake this work on a conditional fee basis must advise their clients of the risk that the tribunal may view evidence given under such an arrangement as being tainted and may attach less weight to it or even refuse to admit it. …”
“…For cases where the amounts at stake are small and a ratepayer may be unable to meet the costs Draft RICS Guidance Note: of a VT hearing in any other way, a “Rating Appeals” 4 th edition surveyor may consider that access Consultation Document to justice for that ratepayer justifies such a fee basis. If he or she adopts such a fee basis, the existence of such a conditional fee arrangement must be declared to the tribunal …”
Examples of Judicial Displeasure…..
“…In the course of his cross examination Mr …. said that he was aware of other assessments ….. he had not included these in his expert evidence, despite the fact that they might be relevant to my decision, because he feared that revealing these details would cause the VO to increase the assessments …. which he said would put him in a very difficult position. [Counsel for the VO] submitted that this admission should cast doubt on the reliability of his evidence. I am not persuaded that it should … however, Mr ….accepted in answer to a question from me that effectively withholding relevant evidence was incompatible with his duty to the Tribunal as an expert witness.” Hobbs v Gidman (VO) [2017] UKUT 0063 (LC)
“…I was troubled by several aspects of Mr …..’s evidence. He said in oral evidence that he was aware of several comparables which might have been of assistance in reinforcing his opinion, but had not amended his expert report to include them, as he had been directed by his instructing solicitors not to alter his report. That is a fundamental misunderstanding of the role of the expert witness, and is in spite of his confirmation at the end of his report that he had expressed his true and complete professional opinion. A chartered surveyor is obliged to ensure that expert evidence is complete and up to date. Of less concern, there was no reference to the RICS Practice Statement for Expert Witnesses, nor a declaration on the required basis. But my criticism …..does not extend…. to considering his opinion to be biased. .” Brown v The Natural Resources Body for Wales [2016] UKUT 0514 (LC)
“…This claim has taken up a disproportionate amount of the Tribunal’s resources. It should have been obvious that many of the claimants’ heads of claim were grossly exaggerated and were simply unsupported by the evidence. Nobody on the claimants’ team seems to have stood back and asked themselves whether what was being claimed was remotely realistic. The claimants’ experts accepted much of what they were told by the claimants far too readily and at times failed to exercise the type of meaningful critical and objective judgment that the Tribunal reasonably expects of an independent expert witness. Messrs Mohammed v Newcastle City Council[2016] UKUT 0415 (LC) (“The Happy Chip”)
“…It is not sufficient simply to rely on what the claimants told them; an expert should not be the puppet of their client but should act in a way commensurate with the duties ….to help the Tribunal on matters within the expert’s expertise and this duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid. I have highlighted the most egregious examples of the experts’ failure to meet this duty throughout this decision. . .” Messrs Mohammed v Newcastle City Council[2016] UKUT 0415 (LC) (“The Happy Chip”)
“…the willingness of the experts to debate the law and to reach trenchant conclusions on the meaning and effect of the statutory language (invariably supportive of the case of the party instructing them) was surprising. It had the effect of increasing costs and lengthening the hearing (the expert evidence took four days of hearing time); more importantly, it cast doubt on their objectivity and independence and diminished the weight which I felt I could confidently give to the opinions they expressed on matters within their expertise.….” Johnston & Otrs v TAG Farnborough Airport Ltd [2015] UKUT 0534 (LC)
Agreeing evidence and the expert report
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