The court has considered the grounds for striking out passages in an expert valuation report in the Central London County Court decision of WH Smith Retail Holdings Ltd v Fort Properties Ltd GOOBS391.
An expert’s duty is to the court and to give impartial opinion evidence to assist in the resolution of the issue on which they have been instructed. To the extent that an expert’s report provides an opinion on facts which are not within or do not require an expert’s expertise it is inadmissible. However, usually it is unnecessary and disproportionate to exclude or excise inadmissible opinions: the proper course is for the whole document to be before the trial judge who will take account only of those elements which reflect expertise and disregard those which do not.
The claim concerned determination of an interim rent application under section 24D of the Landlord and Tenant Act 1954 following termination of a tenancy. The rent payable is determined by assuming a notional tenancy from year to year on the same terms as the current tenancy. Each side had served expert valuation reports and the experts had met and produced a joint report.
The defendant applied under the court’s case management powers (CPR Rules 3 and 32) to exclude certain references in the claimant’s expert report on two principal grounds:
• Firstly, that it contained legal argument. The expert must not set out submissions of law or their opinion on legal issues but it is perfectly proper for an expert to express their opinion on the basis of stated assumptions of the law. The defendant argued that by referring in detail to court decisions, expert determinations and PACT consent orders, the conclusions to be drawn from them and their views on them the expert had crossed the line between assumption and legal argument. However, the court was satisfied that the expert was valuing in accordance with assumptions and that they were setting out those assumptions to explain why and how they had been made: they were not arguing the law.
• Secondly, that it referred either to expert determinations which are inadmissible because they are not direct evidence of what is happening in the market but an arbitrator’s opinion, or to PACT determinations which are confidential. In the court’s view, the assumptions made by the expert were either good or bad but that did not require reliance – as a valuation exercise – on the expert determinations or a collateral enquiry into their correctness. The expert was explaining their approach to valuation. Where there was an issue over a particular expert determination, it was for the trial judge to determine its admissibility and weight. As regards the PACT determinations, the court was satisfied that the expert had made legal submissions as to the loss of confidentiality or privacy in such decisions. However, the court accepted that the determinations had been widely disseminated between valuers and used in various expert reports and that any confidentiality had been lost. Consequently, it would be wrong to exclude them.
Louise Clark is a property law consultant and mediator
