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Experts in rating cases under the spotlight

The recent case of Gardiner & Theobald v Jackson (VO) [2018] UKUT 253 (LC) has substantial implications for many involved in rating. The case casts a spotlight on the role and duties of the expert in the tribunals with particular focus on success-related fees.

The president of the Upper Tribunal (Lands Chamber) has warned expert witnesses that they could be referred to their professional bodies if they do not adhere to what are clear civil procedure rules.

Sir David Holgate said experts owed the same “duty of candour” to the court as solicitors, and, following the example set by the High Court, the Upper Tribunal would, if necessary, require them to provide written explanations for their behaviour.

He said if an expert fails to declare a conditional fee arrangement from the outset of his involvement in tribunal proceedings, there is “a clear risk” of the resources of other parties and the tribunal being wasted. Additionally he expressed concerns about independence, in that it gave the expert a “direct financial interest” in the outcome of the case, which could undermine their “independence and impartiality” which is required by the tribunal.

Sir David announced that the tribunal had decided to send a copy of its decision to the President of the Royal Institution of Chartered Surveyors, so we can expect the RICS to restate to their members the “Rating Consultancy Code of Practice” along with the practice statement titled “Surveyors Acting as Expert Witnesses”. The President of the Rating Surveyors Association has already taken action in this regard.

Sir David warned that the tribunal could “consider what further action should be taken” where an expert may have abused the tribunal’s procedures through a serious failure to comply with the rules or related breach of a professional code of conduct. He emphasised that “This tribunal relies heavily on the independence, diligence, expertise and skill of the wide range of experts who appear before it” recognising that “The great majority of these experts discharge their obligations to the tribunal impeccably”. He concluded by saying that any notion that the inclusion of a signed declaration by the expert in his report is a mere formality needs to be “completely dispelled.”

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I agree. It looks as though surveyors will be placed in the same position as solicitors who, in rating cases, were allowed a success-related fee before a VT; but the moment a notice of appeal was served, the whole fee basis changed, retrospectively so that the excess of the VT fee over the fee-earner’s hourly rate had either to be returned to the client, or transferred by the solicitor to his client account, and the client told that the money was being held on general account of, and would be applied to, the costs of that appeal

By Peter Scrafton

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