Who would be an expert?

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Case: Horsford v Horsford [2020] EWHC 584 (Ch) and Others

    1. The first thing about this article is that, still considering myself to be a 1970’s feminist, I took a gulp when I decided, in the interests of economy, to avoid the endless references to he or she in the article that follows. What that has brought to mind is the fact that experts in the world of rural disputes are still predominantly male. I was, therefore, delighted to see Julie Liddle joining Ellie Allwood on the panel of RICS Arbitrators, and finding out that Ruth Farrell has also passed her arbitrators exams. Congratulations to all. Hopefully we will see more female arbitrators and experts emerge.
Types of expert
    1. There are two types of expert. The first is one that has been with us for a very long time: the expert who gives evidence to a court or tribunal. Mostly, in our world, that will be expert evidence relating to valuation, but expertise in disputes comes in all shapes and sizes.
    1. The second type of expert is one that has emerged more strongly, particularly after the 2006 Regulatory Order amended the Agricultural Holdings Act 1986 so that disputes could be dealt with by a third party determination (an expert), rather than an arbitration. The second expert is the one who determines a dispute between the parties.
An articled clerk in headlights
    1. In April 1982 the senior litigation partner at Burges Salmon – indeed the only litigation partner at the time – went on holiday shortly before the biggest trial of his career and left me a note of things that he wanted me to do to help him in the preparation for the trial a few weeks later. The first item on the list was to ‘exchange’ expert reports. As there were four parties to the litigation and each party had four expert witnesses, it was a fairly daunting logistical task, which was not helped by the fact that, at the time that I received the instruction, I had no idea what ‘exchange’ involved. Did I have to walk down Kings Street and meet somebody from the other side and hand our expert report to them and take theirs in return? What did I do about the two parties that were in London?
The status
    1. Two things have changed since 1982. First, I have learned how to exchange an expert report. Secondly, the role of experts has changed radically. In 1982 expert witnesses were viewed as very much a part of the litigation team. They worked with the clients, solicitors and counsel. Often the client, solicitor and counsel would have significant input into the expert report.
    1. Now the relationship is very different. While the expert is retained by a party – unless the court or tribunal directs that there is to be a single joint expert – the expert must be independent. The obligation is to provide an objective and unbiased opinion upon which the court or tribunal can rely.
Court directions
    1. In court, the duties of an expert are governed by Part 35 of the Civil Procedure Rules 1998 (as amended) and the accompanying Practice Direction. Part 35 lays down a number of requirements which experts must comply with. They are: –
      • It is the duty of an expert to help the court on matters within his own expertise.
      • This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid.
      • Expert evidence must be the independent product of the expert, uninfluenced by the pressures of litigation.
      • An expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of advocate.
      • An expert should consider all material facts, including those which might detract from his opinion.
      • An expert should make it clear:
        • when a question or issue falls outside his expertise; and
        • when he is not able to reach a definite opinion, for example, due to insufficient information.
      • If, after producing a report, an expert changes his view on any material matter, such change of view should be communicated to all parties without delay and, when appropriate, to the court.
Professional body direction
    1. Additionally, an expert must also comply with the rules of the expert’s professional body, such as the RICS. The expert is bound by the professional body’s code of conduct. For example, the RICS Practice Statement Guide: Surveyors acting as expert witnesses.
The golden rule
    1. The golden rule is that the duty of the expert is not to the party instructing him but to the court or tribunal.
What can go wrong?
    1. So what can go wrong? The answer is that the golden rule is sometimes forgotten. The expert gets drawn into becoming an adviser for his client. This can be wholly unintentional. The gathering of information will involve discussions with the client and the client’s advisers. Knowing where to draw the line between gathering information – which may be partisan – and maintaining independence to provide expertise in relation to that information is not always easy.
    1. When it goes wrong, and the expert gets drawn into the client’s camp to the extent that he becomes a quasi-adviser, then the court or tribunal take a dim view. It happened recently in one of my cases, Carr v Evelyn, before the First-tier Tribunal (the subject of another article that I produced), not only resulting in an award of costs (itself unusual in a First-tier Tribunal) but costs payable on the indemnity basis.
    1. Sometimes this crossing of the line may happen because the expert has previously had a longstanding relationship with the client, but the provenance of the expert’s appointment is irrelevant to the requirement for the discharge of the duty to the court or tribunal.
The guidance for the expert
    1. The lesson for the expert is always to have regard to the Statement of Truth and Declaration which is contained in the RICS Practice Statement.

The Statement of Truth provides:

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which I refer.

The Declaration requires the expert to confirm that:

(a) My report has drawn attention to the material facts which are relevant and have affected my professional opinion.

(b) I understand and have complied with my duty to the [court] as an expert witness which overrides any duty to those instructing or paying me, that I have given my evidence impartially and objectively, and that I will continue to comply with that duty as required.

(c) I am not instructed under any conditional or other success-based fee arrangement.

(d) I have no conflicts of interest.

(e) I am aware of and have complied with the requirements of the rules, protocols and directions of the [court].

 There is a final part of the Declaration concerning compliance with the RICS Practice Statement.

Being sued
    1. The expert must keep the principles of independence to the forefront of his mind in providing his opinion. The expert may also have in the back of his mind that he owes a duty of care. It was established by the Supreme Court in 2011, in the case of Jones v Kaney, that an expert can be sued.
    1. That brings me to the second type of expert, the one who makes an expert determination. Whereas an arbitrator is a quasi-judicial function, and cannot be sued, the expert making a determination shares the fate of the expert witness that he owes a duty of care to the parties: see Belvedere Motors Limited v King [1981].
Payment of fees
    1. Many years ago I drafted the letter which is still in general use by Rural Arbrix in respect of arbitration appointments. One of the things that I have always advocated for arbitrators is that they should make proper provision for their remuneration in their letter of appointment. However, in the event if they do not, the arbitrators at least have the comfort of knowing that their fees and expenses fall within the definition of the costs of the arbitration in Section 59 of the Arbitration Act 1996. Further, unless otherwise agreed by the parties, the recoverable costs of the arbitration shall include the reasonable fees and expenses of the arbitrator that are appropriate to the circumstances (Section 64 of the 1996 Act).
Horsford v Horsford
    1. In contrast, the expert making a determination will only be paid what he has contractually agreed to the parties, unless the court rides to the rescue. That is what happened in Horsford v Horsford [2020]. That case was primarily about the application of estoppel (or the fact that estoppel did not apply!) in a farming partnership dispute. I have made reference to it in another article concerning estoppel.
    1. Another issue arose because the Partnership Agreement had provided that any land should be valued by agreement (or in default of agreement determined by a valuer appointed by the President of the [RICS] on the application of any party). It said nothing about the valuer’s fees. The President of the RICS duly appointed the expert valuer who proposed that his fees should be paid equally by the parties. One disagreed and one ended up paying the entirety of the fees. When this came to court, there was a claim for reimbursement.
    1. In an earlier case, not involving agricultural property, Cream Holdings Limited v Davenport [2011], the Court of Appeal decided that there a party refused to accept an experts terms of engagement, then ‘assuming… that the expert’s terms of engagement are reasonable and are consistent with the rights and obligations of the parties under the contract, the implication of a term requiring the parties to cooperate in the valuation process by accepting the appointment on those terms is an obvious and necessary means of giving effect to the contract…’.
    1. In the Horsford case, adopting that principle, the court decided that the recalcitrant party was liable to reimburse one half of the expert’s fees to the other party. However, the message from this is loud and clear. It is that where the expert is appointed and can control the contractual arrangements concerning fees, he must do so. Failure to do so is at his peril.

An edited version of this article appeared in the Estates Gazette on 12 August 2020.

© P R Williams

 June 2020

P R Williams, Ebery Williams – Author of Scammell, Densham & Williams Law of Agricultural Holdings

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