Rating – Expert witness – Procedure – Expert witness appearing for appellant in relation to rating valuation dispute – Whether obligation of expert witness to declare success-related fee arrangement applying to remuneration for all services provided by expert – Whether success-related fees compatible with obligation of expert witness to act independently – Ruling accordingly
In 2009, the appellant instructed Colliers International Rating UK LLP (Colliers) “to provide a comprehensive rating service” in respect of a portfolio of properties, including an office at 227-233 Tottenham Court Road, London W1. That property was entered in the 2010 local non-domestic rating list at a rateable value of £2,300,000. Colliers, acting through C, its Head of London Rating, made a proposal on behalf of the appellant against that assessment. The respondent valuation officer did not consider the proposal to be well founded. The Valuation Tribunal for England (VTE) dismissed the appellant’s appeal.
The appellant appealed to the Upper Tribunal. During the appeal process, documents produced by C appeared to provide that Colliers’ “entitlement to a significant success fee for all work done before the appeal to the Tribunal(with the exception of work done in connection with the VTE proceedings) was made conditional on the outcome of the appeal itself”. The Upper Tribunal held a hearing to deal with any incompatibility between such an arrangement and the duties of an expert witness giving evidence to the tribunal in a published decision.
The issues raised were: (i) whether the obligation of experts, including surveyors, who undertook the role of providing expert reports and evidence in appeals or references before the Upper Tribunal, to declare a success-related fee arrangement, applied to remuneration not only for services as an expert witness, but also for services provided by that expert (or the practice for which he or she worked) other than as an expert witness, whether before or during the currency of those proceedings; and (ii) to what extent might success-related fees be compatible with an expert’s obligation to the tribunal to act independently.
Held: The tribunal ruled accordingly.
(1) In the present case, no conditional fee arrangement applied to the services provided by Colliers for the appellant through C acting as an expert witness in the VTE and in the Upper Tribunal. Those services were the subject of arrangements for the payment of fixed fees. However, for the services covered by the letter of instruction in 2009, Colliers were entitled to a success-related fee in the event of (amongst other things) them agreeing with the respondent an alteration of the rateable value in the 2010 list which reduced the appellant’s liability for rates during the currency of that list, even if such an agreement were made at a time when C was acting as an expert witness for the appellant in its appeals to the VTE or the Upper Tribunal. It was plain that C was well aware that he should not act as an expert in tribunal or court proceedings under an instruction providing for any conditional or success-based fee. The tribunal was not making adverse findings against Colliers or C. However, there was a clear risk that an expert might fail to comply with his obligations to the tribunal because to do so would adversely affect the prospect of successfully negotiating and agreeing with the respondent a reduced rateable value and receiving the conditional fee. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise.
(2) In most cases before the tribunal, both the data assembled by an expert and the opinion he gave would be crucial to the outcome of the dispute, even if there were also factual disputes to be resolved. An expert was obliged to provide information or knowledge (and not simply documents) which might go substantially beyond the scope of the disclosure obligations owed by his client and any solicitor involved. It was unacceptable for an expert witness, or the practice for which he or she worked, to enter into a conditional fee arrangement, without that fact being declared in sufficient detail to the tribunal and any other party to the proceedings from the outset of their involvement in the case. If an expert’s report contained declarations relating to the expert or to the report or its preparation which were materially incorrect, or appeared to be in breach of any rule or code of conduct, the tribunal was likely to refer the matter to that expert’s professional body and take it into account when making decisions on orders for costs.
(3) Where there was a conditional fee agreement, the expert witness, or the practice for which he worked, had a direct financial interest in the assessment of the rateable value, whether determined by agreement with the valuation officer or by a tribunal decision, which impaired or undermined the independence and impartiality required of that expert in the tribunal’s proceedings. The public interest in promoting the amicable resolution of disputes did not override the public interest in the proper discharge of an expert’s obligations to the tribunal. In the context of disputes about rateable value there was a particular public interest in the Upper Tribunal being able to arrive at decisions based on expert evidence which was entirely independent, because many of those decisions were likely to influence assessments for other properties and the liabilities of other ratepayers.
(4) The extent to which conditional fee arrangements were compatible with the proper discharge of an expert witness’s obligation to the tribunal to act independently and impartially had to be considered in the context of access to justice and the “overriding objective” in rule 2(1) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010. The duty of an expert under rule 17(1) to help the tribunal dovetailed with that overriding objective. The finite resources of courts and tribunals were under great pressure and had to be used carefully. If an expert failed to declare a conditional fee arrangement from the outset of his involvement in proceedings before the tribunal, there was a clear risk of the resources of other parties and of the tribunal being wasted.
(5) The Upper Tribunal relied heavily on the independence, diligence, expertise and skill of the wide range of experts who appeared before it. The tribunal wished to dispel any notion that the inclusion and signing of an expert’s declarations in his or her report was a mere formality, or might be dealt with perfunctorily. Experts generally included in their reports a declaration that they had complied with the relevant provisions of their own professional code of conduct. That was essential and the declaration had to be correct.
Per curiam: Many surveyors and other experts, particularly those in larger practices, operated on an assumption that standard form conditions would have been drafted by the practice so as to comply with the requirements of the tribunals before whom they appeared and of the professional bodies to which they belonged. But that could not override or detract from the obligations which each individual expert personally owed, not only to the tribunal or court, but also under any professional code of conduct. Individual experts had to ensure that any specific terms agreed for individual cases, whether varying or supplementing the standard conditions of a practice, met the same requirements. The tribunal would send a copy of its decision to the President of the RICS so that the institution might consider whether the decision had 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. Those were matters for the RICS.
The appellant did not appear and was not represented; the respondent did not appear and was not represented; Christopher Lewsley (instructed by Colliers International Rating UK LLP) appeared for Colliers and C.
Eileen O’Grady, barrister
Click here to read transcript: Gardiner & Theobald LLP v Jackson (VO)
