The decision of the Upper Tribunal (Lands Chamber) in Gardiner & Theobald LLP v Jackson (VO) (2018) UKUT 0253 (LC) is important, because it sets out clearly the Tribunal’s expectations of those appearing before it as expert witnesses, and it is unusual, because the substantive matter of the appeal had been settled by the time of the Tribunal’s hearing.

The Appellants in the case were the occupiers of an office building in Tottenham Court Road in London. They appealed against the rating assessment of their offices, but their appeal was dismissed by the Valuation Tribunal for England (VTE). They appealed to the Upper Tribunal (Lands Chamber) (UTLC) against the VTE’s decision. The Appellant’s Statement of Case to the UTLC made clear that the appeal property was subject to a lease. The Valuation Officer (VO), who was the Respondent to the ratepayer’s appeal, sought details of the lease of the appeal property, but these were not forthcoming. When the UTLC listed the appeal for hearing it required the ratepayer to supply a copy of the lease to the VO, but this was not done. Because the lease had not been supplied to the VO, the UTLC gave notice that it would hold a case management hearing to consider whether the appeal should be struck out because of the failure to disclose the lease.

At the case management hearing the UTLC made an order that the appeal would be struck out unless the Appellant supplied the VO with a copy of the lease and a witness statement explaining the reasons for the failure to disclose this. The Appellant supplied a copy of the lease and a witness statement from its original expert witness seeking to explain the reasons for the failure to disclose. The Appellant then gave notice to the UTLC that it proposed to change its expert witness. A new expert was appointed and this resulted in a delay to the date set for hearing the substantive appeal. Before the time of the new hearing date the appeal against the Rateable Value was settled by agreement and that settlement was give effect by a Consent Order of the UTLC.

During the course of the change of expert the Appellant suggested that one of the reasons for wishing to change its expert witness was that the original expert had signed a declaration that he was not instructed under any conditional (success-related) fee arrangement, but that this was not, in fact, the case. The UTLC was concerned by the possible existence of a conditional fee arrangement and gave the expert and his firm the opportunity to make further submissions in that respect at a hearing. Following that hearing the UTLC has issued a detailed decision which sets out the duties of expert witnesses and some important and helpful guidance regarding fee arrangements for such witnesses.

The decision makes clear the fundamental duty of an expert witness to the Court or Tribunal before whom he or she appears. Whilst the decision stops short of finding that such a duty is always incompatible with any type of conditional fee agreement for the expert witness or for the firm that employs the expert, it does make absolutely clear that the existence of any conditional fee arrangement must always be disclosed: “Whatever approach this Tribunal decides to adopt on the issues raised by Factortame, it remains wholly unacceptable for an expert witness, or the practice for which he or she works, to enter into a conditional fee arrangement, without that fact being declared (and in sufficient detail) to the Tribunal and any other party to the proceedings from the very outset of their involvement in the case. The Tribunal will treat such a failure as a serious matter.”

In the case concerned, whilst the conditional fee arrangement did not apply to the provision of services as an expert witness, it did apply to other elements of work associated with the appeal and undertaken by the firm employing the expert witness. The UTLC made clear its view that concerns about conditional fee arrangements “apply to any agreement for the provision of any service by an expert or the practice for which he works, where that person is acting as an expert witness in an appeal to the Tribunal, and the entitlement to the fee for that service is related to the outcome of the appeal, whether by a decision of the Tribunal or by the parties agreeing to settle the subject-matter of the appeal.”

The decision also considers how the UTLC can regulate compliance with the obligations of an expert witness to the Tribunal. In circumstances where there may be need to enforce such compliance this will be by way of “a requirement that the person responsible for the case explains why an issue should not be referred to a professional body, initially through a witness statement accompanied by a signed statement of truth, providing a “full, candid and frank response” to the issues raised.”

This detailed decision of the Upper Tribunal will be essential reading for anybody appearing as an expert witness before a Court or Tribunal, not just in rating cases, and for the firms that employ such experts. Failure to comply with the expectations of the Tribunal in this respect carries with it risks to all concerned. The risk to the client is that the evidence of the expert that they are seeking to call may be regarded as tainted by conditional fee arrangements and, as a result, given no weight by the Tribunal. The risk for the individual expert and their employer is that their conduct may be referred to their respective professional body as a disciplinary matter. In this case the UTLC has decided to “send a copy of this decision to the President of the RICS so that the Institution may consider whether the decision has any implications for its Practice Statement, or more generally, and whether any further steps should be taken in relation to the circumstances of this case.”

All expert witnesses should review this decision very carefully.

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