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Gardiner Theobald LLP v David Jackson (Upper Tribunal (Lands Chamber))

Posted on 04/09/2018 · Posted in Expert Information, Property, Uncategorized

This particular case involved the valuation rating of a portfolio of properties, including an office block on Tottenham Court Road. In 2009 the appellant instructed Colliers International Rating “to provide a comprehensive rating service” for the portfolio. The central London property was entered in the 2010 local non-domestic rating list at a rateable value of £2,300,000. Representations were made against that assessment by Colliers on behalf of their client, but the valuation officer did not agree and the Valuation tribunal turned down the appeal. The appellant then appealed to the Upper Tribunal.

During the appeal, it emerged that Colliers were entitled to “a significant success fee for all work done before the appeal to the Tribunal” but only if the outcome of the appeal was successful. The expert did not actually have a conditional fee agreement (‘CFA‘), but Colliers would be due a “success-related fee” if proceedings were successful and the rateable value reduced.

Independence doesn’t mean you decide the way you want.”
Stephen Breyer

This case was heard before Sir David Holgate (President of the Upper Tribunal Land Chamber). Whilst he didn’t make any adverse findings about Colliers or their expert, he made clear that the case raised concerns about independence as it gave the expert a “direct financial interest” in the assessment of rateable value, which could undermine the “independence and impartiality” required for the tribunal hearing. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise. He is obliged to provide collated data, opinion, information and knowledge which might go well beyond the disclosure obligations owed by his client and any solicitor involved.

Sir David identified that one of the main issues before the tribunal was the extent to which the principles established for civil court proceedings in R ( Factortame Ltd) v Secretary of State for Transport and Local Government (2002) would similarly apply to tribunal hearings. Also whether it applied to cases, such as the present one, where there was no actual CFA but still a success related payment. Factortame established that it would generally be “highly undesirable” to instruct an expert on a contingency fee basis and, only in “a very rare case indeed” would the court consent to it.

The Civil Justice Council (‘CJC‘) Guidance for the instruction of experts in civil claims strongly discourages payment of experts’ fees contingent on the nature of the expert evidence or the outcome of the case. Sir David conceded that a slightly different approach might be more appropriate under tribunal procedures and that assessing the weight to be attached to an expert’s report, rather than the admissibility of the report, might allow a little more flexibility. He also said that where there was an undisclosed CFA some relief could be given to the other parties by a costs award, although accepted that would not “address the adverse effects of delay“. Whatever approach a tribunal decided to adopt towards Factortame, he was adamant that it was “wholly unacceptable” for an expert witness to enter a CFA without disclosing it at the outset and in sufficient detail to the tribunal and other parties.

The public interest in promoting amicable settlement of disputes does not override that same public interest in the proper discharge of an expert’s obligations to the tribunal. It was particularly important in cases concerning disputed rateable values that the Upper Tribunal could reach decisions based on entirely independent evidence, because many of those decisions will influence assessments for other properties and therefore the liabilities of other ratepayers. Sir David also made the observation that the financial resources courts and tribunals were finite and under great pressure: if an expert failed to declare a CFA from the outset, there were obvious risks that the tribunal and other parties’ resources would be wasted.

In many larger practices it had become common for surveyors and other experts to rely on standard conditions which had been drafted by the practice in order to comply with a tribunal’s requirements. Sir David made it clear though that this could not detract from an individual’s personal obligations, both to the court or tribunal but also under any professional code of conduct. Expert witnesses would be referred to their professional bodies if rules on CFA’s were broken.

A copy of this decision would be sent to the President of the Royal Institution of Chartered Surveyors so that they could consider whether it had any implications for its Practice Statement or otherwise.

Link: Upper Tribunal (Lands Chamber) Gardiner Theobald LLP v David Jackson [2018] UKUT 253 (LC)

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