RICS Northern Ireland - Reports by Experts for the Lands Tribunal Part 2

This second part of three papers explains the sequence of events and the reports that the Lands Tribunal receives as expert evidence.  It also addresses some general points on procedure and presentation.  The first part highlighted the need for clear understanding between the expert and the advocate.  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. 

It is essential that the knowledge and expertise of expert witnesses in their expert subject is skilfuly communicated to the Tribunal:1 

"[An expert is] a person with a high degree of skill and knowledge in a particular subject, who has relevant and up to date expertise with regard to issues in the case, and sufficient education and communication skills to produce a clear written report and if necessary to provide helpful oral evidence to the court."2

The Lands Tribunal is a relatively informal tribunal but the process is governed by the Lands Tribunal Rules.3  Members of the RICS are subject to its Practice Statements and Guidance Notes.4 

The Process

The Lands Tribunal Rules and Directions provide a step-by-step approach to the presentation of a case.  Directions are made, after discussion, at mentions/reviews before the Tribunal.  Directions may relate to reports; meeting of experts; skeleton arguments; Post-hearing written submissions from advocates; or other matters suited to the particular case.5 

A typical sequence of events might be:

It is very much a ‘cards face up on the table’ approach.  If the opinion, and supporting evidence, of an expert have not been set out in his or her reports, the Rules provide that the Tribunal shall adjourn the hearing (unless it is satisfied that no prejudice to any other party will arise) and may give such directions and impose such terms as to costs or otherwise as it thinks fits.

Treating the Report on Facts and the Expert Report as two separate stages has a number of advantages: 

From time to time the Tribunal may make directions for a single very brief report only (typically in the case of an unopposed application for modification of a restrictive covenant).  This may be limited to a few pages dealing only with specified considerations together with one or two maps and schedules. The Tribunal’s directions for brevity take precedence over any other practice statements and guidance notes.

Meetings of Experts

The Tribunal may make directions for meetings of experts.  Those instructing experts must not give, and experts must not accept, instructions not to reach agreement at such discussions on areas within the competence of the experts concerned. But they may give instructions not to reach agreement on facts outside the competence of the experts concerned.  Apart from the joint memorandum, the content of the discussion between experts at or in connection with a meeting is without prejudice and, in particular, may not be referred to at the Hearing unless the parties agree or the Tribunal so directs.

The procedure to be adopted at these meetings is a matter for the experts.  At such meetings the experts should prepare a joint memorandum for the Tribunal recording the expert issues upon which they share the same expert opinion (these may include expert facts); the expert issues where there is a difference of expert opinion between them and a summary of what that difference of opinion may be and any action which may be taken to resolve any outstanding points of disagreement.  To avoid complications and misunderstandings it is always preferable that this memorandum should be completed by the conclusion of the meeting.

Procedure and Presentation General Points

In complying with directions, parties may agree to and exchange material directly with each other, provided they also lodge a copy with the Tribunal and confirm that the exchange has taken place. If not, unless the Tribunal directs otherwise, two copies (one for the Tribunal and one for the other party) of material required at each stage should be lodged before the relevant date for exchange.   

Applications to amend reports should be made promptly.
Parties may wish to cooperate in preparing a Statement of Agreed Facts.  The Tribunal requires each expert to identify those facts which he or she considers helpful to determination of each issue.  But it has no objection to cooperation provided there would be no unfairness to any party, there would be no unreasonable delay, and resources would not be wasted on material of little or no relevance.

Unless otherwise directed, the Tribunal would prefer to accept a short delay to allow parties to lodge reports and memoranda as properly completed hard copy rather than, simply to meet a time limit perhaps 24 hours earlier, receive them as email and fax as well.
In cases of any complexity there will be a number of reports, memoranda and written submissions.  These must be capable of being collated, without losing their identity, and their contents easily referenced.  It is suggested that the Cover Page of each of these documents should include

Reports of more than a few pages should include an index and, within the text of all documents prepared for the Tribunal, paragraphs should be numbered as this makes accurate referencing much easier and avoids clashes with page numbering within bundles.  Dividers should be kept to a minimum – an ‘Index Post-it’ as a tab on the first page of any appendix or document within the Report is usually sufficient
As each Report is received it will be associated with other Reports in ring binders that eventually will include all other key material, so punch hole is the preferred binding system.

  1. The qualifications of expert witnesses have been discussed in an earlier article - See Folio Issue 2/2008.  See also the summary of the duties of experts by Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyds Rep 68, at 81-82.
  2. Notes to the CPR Part 35.2.1
  3. The Lands Tribunal Rules (NI) 1976 (as amended)
  4. E.g. Surveyors acting as expert witnesses - a guide to best practice 3rd Ed, RICS.
  5. E.g. in the case of a landlord’s opposition to the grant of a new business tenancy a procedure based on a Statement of Claim, Reply, and/or Rejoinders might be more appropriate.
  6. See Part 3 of this paper.
  7. At all times the expert should be prepared to advise on a compromise.  That may include outcomes outside the range of the issues before the Tribunal.
  8. The Tribunal usually directs that Reports are exchanged in two stages.  The first is the exchange of Reports on Facts and that includes all documentary and factual information on which an expert intends to rely.  In valuation cases the Tribunal may direct that an annotated valuation is set out in the Report on Facts in sufficient detail to explain how it is arrived at. 
  9. The second is the exchange of Expert Reports that include all expert opinion evidence on which a party intends to rely.
  10. Some facts may be disputed and may remain contentious until proved in evidence at a hearing.