Evaluating Evidence Peter McCrea BSc DipArb FRICS FCIArb Member - - PowerPoint PPT Presentation

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?

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document “17.1 When appearing at a VT without legal representation (as is usually the case), the surveyor and the VO is each combining the roles of three individuals who would usually be present at a 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 before a VT are advised to be aware that their primary duty in giving evidence is to the VT and that will override any duty to their employer…”

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document

“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 appropriate to do so. The VT is normally happy for surveyors and VOs to adopt the dual role, as it would in 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 …”

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document

“14.11 Where surveyors and VOs are appearing in the dual role it is essential that they distinguish at all times between the two roles, whether in oral hearings or in written representations.…” Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document

“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 entirely separate. As VT hearings are normally less formal, the separation

• f the roles need only be made clear

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.…”

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document

“17.3 When acting as advocates, the surveyor and the VO deal with matters

• f law and present their respective

cases: they address the tribunal and make submissions, but must never seek 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.”

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document

“17.4 When acting as expert witnesses, they must restrict themselves to evidence and not make legal submissions. They are concerned with matters of fact and opinion (i.e. their expert evidence), rents, assessments, valuations and similar matters.”

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document “17.5 In either capacity it is their duty to assist the tribunal. As an expert witness or a witness of fact, they must provide their evidence openly and honestly and 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

• n any form of conditional or
• ther success-based

arrangement including where those instructing you are engaged on such a basis…”

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document

“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, accordingly, conditional fees may not be appropriate to expert witness

• work. Surveyors acting in the dual role
• f 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. …”

Draft RICS Guidance Note: “Rating Appeals” 4th edition Consultation Document “…For cases where the amounts at stake are small and a ratepayer may be unable to meet the costs

• f a VT hearing in any other way, a

surveyor may consider that access 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

• pinion, 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

• f 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

• bjectivity 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

“PS 7.3 Even where you have not been instructed to communicate with the other party or so ordered by the tribunal, or where the tribunal does not specify any requirements in regard to the manner or scope of such communications, you must raise with your client the possible advantages, disadvantages and appropriateness of: (a) making such communications at as early a stage as possible…

“PS 7.3…. b) identifying with counterpart expert witnesses the issues in dispute, the reasons for any differences of opinion and the actions that might be taken to resolve outstanding issues between parties (c) preparing a statement for the tribunal showing: (i) those facts and issues that are agreed; and (ii) those facts and issues that have not been agreed and the reasons for any disagreement on any issue.”

What is being valued?

“Having considered all of the evidence and submissions, I go back to first principles, and remind myself that Schedule 6 to the Act requires an assessment of: “the rent at which it is estimated the hereditament might reasonably be expected to let from year to year….” The hereditament. Not part of the hereditament. Not most of the hereditament upon which the hypothetical tenant would construct and install his own improvements. What must be assumed is that the rateable property, plant and equipment contained within the hereditament, as a whole, is present at the material day and is the subject of the negotiation between the hypothetical parties, reflecting values at the AVD”

Hobbs v Gidman (VO) [2017] UKUT 0063 (LC)

“…. I consider that Mr….’s criticisms of …. the summary valuations shown on the

VOA website have some merit …. I can also entirely understand [his] frustration at the lack of transparency on the VOA website, which appears to show assessments valued at say £330 per sqm, whereas the “real” value was at £360 per sqm less

• allowances. This opacity, which [the VO] accepted was a shortcoming, puts

ratepayers and their agents at a disadvantage in negotiations and may lead to fruitless appeals. .….”

ELS International Lawyers v Prekopp (VO) [2016] UKUT 0423 (LC)

Tone of the list….?

Tone of the list….?

“…it cannot be right that hypothetical parties up and down the country would all agree an element of the hypothetical rent that completely ignored the location of the hereditament, when other elements of it, and therefore the rent as a whole, were location sensitive. The fact that the valuation office has analysed settlements in a certain way to appear to show a uniform tone is not, in my judgment, persuasive.”

Hobbs v Gidman (VO) [2017] UKUT 0063 (LC)

Hierarchy of evidence….

Lotus and Delta is not the law! “[its] propositions provide guidance on the usefulness of different types of evidence but they should not be regarded as rules to be followed slavishly. It will be necessary to have regard to relevant evidence of all types, if available, but always with a clear focus on the statutory valuation hypothesis” Lamb (VO) v GO Outdoors Ltd [2015] UKUT 0366

Comparisons between rating lists….?

Barnard and Barnard v Walker (VO) [1975] RA 383 Lidl (UK) GmbH v Ryder (VO) [2014] RA 23

“To limit the amount by which the assessment of the appeal property should alter, by reference to the change between rating lists of other assessments which themselves are subject to appeal, and in doing so then possibly affect the ultimate result of those other appeals, would in my judgement be to let the tail wag the dog.”

Lamb (VO) v GO Outdoors Ltd [2015] UKUT 0366

Stephen Hughes (VO) v York Museums Trust RA/20/2015 Cardtronics Europe Ltd and Others v Chris Sykes (VO) RA/29/39/2016

The implications of Newbigin(VO) v SJ & J Monk [2017] UKSC 14 ..… “Check, Challenge and Appeal”……