RICS Northern Ireland - Reports by Experts for the Lands Tribunal
Part 1: Clear understanding between Expert and Advocate

This paper (part 1 of three) highlights the need for clear understanding between the expert and the advocate.1 The second part will explain the sequence of events and the reports that the Lands Tribunal receives as expert evidence.  It also will address some general points on procedure and presentation.  The third part will recommend an approach based on initial reports from experts to advocates that are sufficiently comprehensive to allow them to be adapted as Reports for the Tribunal. 

The papers are intended for all those involved in bringing a case before the Tribunal.         

Clear understanding between the expert and the advocate

A lack of communication between the expert and the advocate will impede the proper preparation of a case and be a hazard to a just outcome, whether terms of settlement or a decision by the Tribunal.  Clarity is essential at every step.  Such communications are privileged2 and entirely proper provided that the expert opinions given to the Tribunal are candid and remain the independent product of the expert witness.3

Communications between the expert and the advocate may be considered in three categories:

The expert’s outlines and advice may be given to the advocate informally, perhaps at consultations. There is a role for consultations but written explanations in plain language should be provided in advance.4  They will become part of the expert’s opinion forming process, perhaps highlighting gaps in the material or causing a rethink on reflection and provide an opportunity for the expert to explore how best to communicate the reasoning and balancing.  Bearing in mind that:

“an expert witness is a person with … sufficient … communication skills to produce a clear written report and if necessary to provide helpful oral evidence to the court"5

an expert who does not sufficiently communicate the reasoning and balancing that has led to the conclusion may be competent as an expert but may not be competent as an expert witness. 

Often in an expert’s report the link between the primary facts and the opinion is not clear. The advocate should insist, from the start and at every stage, on being provided with a clear understanding of the expert’s opinion on each issue and how it is supported.  This may cause some initial resentment from experts - inexperienced expert witnesses may see it as doubting their professional competence but, with experience, they will come to value the opportunity to re-examine areas where the advocate suggests clarification is required and perhaps ‘stress test’ the links and communication skills before cross examination.  The expert will produce a better report and the advocate will reach a better understanding of the strength of the expert evidence.6

A case may be weakened by blurring of the boundary between the roles of advocates and experts.  Few of the valuation questions reaching the Tribunal are simply: “What’s it worth?”.  Usually there are also issues about the interpretation and application of assumptions and disregards (contractual or statutory) that distance the value from the ordinary open market.  For example, rent reviews and lease renewals may require the assumption of restrictions on user; some improvements to be disregarded (rents relied on for comparison purposes may or may not reflect such requirements); claims for compulsory purchase may require the effect of a scheme to be disregarded; rating appeals may require assumptions about the correctness of other assessments; or there may be a debate about the helpfulness of other arbitrators’ or independent experts’ determinations; or rents agreed after the valuation date.  Expert valuers will have a background in the law relating to these matters and may have argued about them when acting as negotiators attempting to settle the particular dispute, or may have advised their client on interpretation and will find it difficult to resist the temptation to continue the argument.  But if an expert witness acts as an advocate on an issue he or she will no longer be regarded as impartial and that will both diminish the weight that will be attached to his or her opinion on the issue and may detract from the credibility of the entirety of his or her evidence.

If instead experts communicate these suggestions as advice to the advocate, as the case progresses step-by step, this will help advocates to maintain an informed view and experts to have confidence that the arguments will be properly presented to the Tribunal.  In some cases the informed view may be that the expert is not an expert in some aspect of the dispute and cannot advise the Tribunal on the conclusion it should reach but he or she may still adduce expert facts that could assist it.  In others it may result in an instruction that, as a matter of law the expert must adopt or not adopt a particular approach or that the client has decided not to pursue a particular issue of expert opinion.  Where appropriate the expert should incorporate such instructions in the report to the Tribunal.     

Valuation is a craft7 not a science and the Tribunal will have no difficulty in receiving an opinion that states that the value lies in a range between x and y but in the expert’s opinion closer to, say, y.   The Tribunal also expects experts to reconsider their views and accepts that opinions may change, at any time, in the light of material received from the other expert or simply on reconsideration.  Of course, if the change is substantial the other party and the Tribunal should be informed.  Experts may be expected to be examined in due course on why they have or have not changed their opinion but receptiveness to new evidence and willingness to make an informed change may add to credibility rather than detract from it. 

The experts may and should meet.8

To aid the advocate’s understanding of the case the expert may provide guidance on a range of matters including:

Some issues may be determined by the assembly and presentation of the relevant factual evidence.  Others will be determined by consideration of the experts’ logical reasoning.  Many other questions, particularly those concerned with measurable matters such as rent may turn on an assessment of the competing views of the experts about the relative helpfulness of a range of evidence. 

  1. The term “advocate” is intended to include the person presenting the case and any instructing solicitor.
  2. Harmony Shipping Co. v. Davis [1979] 3 All ER 177
  3. Whitehouse v. Jordan [1981] 1 WLR 246
  4. An approach will be suggested in Part 3.
  5. See the reference to Notes to the CPR Part 35.2.1 in Part 1.
  6. See however the reference in Part 1. to the potential assistance of expert evidence, as such, in statutory and contractual interpretation.
  7. Usually it is said to be an art but the author prefers craft with its connotation of learning from experience
  8. Such meetings will be discussed in Part 3.