You should read this if you are an expert or if you are a party to a case in which expert evidence is being given.
It is difficult enough being an expert witness. You are retained by one party but have to give an independent, honest view.
Experts – don’t make life harder for your yourselves by annoying the Tribunal.
Two recent cases about the valuation of property provide examples. The first case was a dispute as to the rateable value of an air handling system installed in a retail warehouse.
The Upper Tribunal had evidence on behalf of both the Valuation Officer and the ratepayer from experts in air handling systems and refrigeration; 4 experts in all including one professor.
The comment from the Tribunal was decidedly chilly.
“The absence of a greater level of agreement on technical issues was disappointing”
The problems were
- no joint statement produced by the experts; leading to
- lots of time being spent in cross examination on technical detail;
- inadequate assistance from the experts to the Tribunal in recording what they agreed, what they did not agree and briefly why they disagreed.
The Tribunal warned when this assistance is not forthcoming it may question whether the expert truly understands his duties to the Tribunal.
This is code for, if the expert does not assist the Tribunal, the Tribunal may choose not to believe the expert.
The second case was a lease renewal case where the issue was the amount of rent payable under the new lease of a retail unit in a shopping centre.Both sides called a private practice surveyor who also advised them in other matters.
One issue was the basis for valuing the rent for the unit.
The problems for the landlord’s valuer were
- failure to comment on an important comparable in the tenant ‘s case;
- failure to value the property on the overall basis, for which the tenant’s valuer argued;
- giving evidence which was inconsistent with evidence he had given in a previous arbitration concerning another property;
- giving the impression that he was too close to the landlord’s position and was unable “to stand back and look at the broader picture and broader arguments”. In other words, he appeared to be an advocate for his client’s case rather than using his expertise to assist the Court in reaching a correct conclusion
Lessons to be learned.
- the role of the expert is to assist the Tribunal.
- clarify what is agreed between the experts, what is not agreed and why it is not;
- tackle the issues including the other side’s best points. They won’t go away and the expert’s credibility will be damaged if he seeks to duck the issue.