Summary
The judge noted that that the manner in which two Expert Witnesses in Chartered Surveying gave their evidence was more advocacy than opinion, with one expert’s report reading more like a skeleton argument.
Learning points
Learning points for instructing parties:
Learning points for experts:
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You should ensure that you comply with the requirements of the relevant procedural rules, practice directions and guidance.
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By not doing so, you risk your evidence being inadmissible or given less weight.
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The expert’s role is to reach an independent conclusion. It is not to ‘argue’ a particular position and not to reach a conclusion and then seek the evidence afterwards.
Learning points for policy and rule makers:
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As the judge notes in this case, “[t]here appears to be all too often an approach of the placing of evidence before the court… which treats the formality requirements of CPR regarding evidence as being technical and not necessary to be observed.”
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The effectiveness and efficiency of the justice system is compromised by expert witnesses who are not properly trained in their duties and obligations.
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The current system relies on the integrity of those expert witnesses, such as the members of the Expert Witness Institute, who seek training of their own accord.
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There should be a requirement on all expert witnesses to obtain training in (at least) their duties and obligations under the relevant procedural rules, practice directions and guidance.
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This training should be provided by registered training providers.
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There are a number of long-standing and reputable training providers, such as the Expert Witness Institute, who would be able to meet such registration requirements.
The case
The case concerned the unopposed business renewal claim brought by the tenant and claimant pursuant to Part II of the Landlord and Tenant Act 1954. The disputed terms were whether there should be a tenant’s break clause (and if so, the frequency), the amount of the tenant’s contribution to maintenance of an access road, and the quantum of rent.
The expert evidence
Expert evidence was adduced from two chartered surveyors: Mr Hardy for the claimant and Mr Bloomfield for the defendant. Both experts were cross-examined.
Compliance with the Civil Procedure Rules
The expert evidence included a number of reports, answers to questions and joint statements. The judge noted that some of these documents did not contain the expert’s statement of truth or the statement as to understanding of and compliance with their duty to the court and awareness of the requirements of the procedural rules, practice direction and guidance.
While the judge chose to waive these faults, he expressed disappointment that such a waiver was necessary and that the matter had not been remedied earlier in proceedings, noting that:
“There appears to be all too often an approach of the placing of evidence before the court… which treats the formality requirements of CPR regarding evidence as being technical and not necessary to be observed. Any such attitude should be dispelled. The requirements are there for very good reasons. They are ignored at the peril of the evidence not being admitted or other sanctions being applied.”
Expert evidence on the tenant’s break clause
The judge noted that, as regards the break clauses, it was unfortunate that both experts strayed from giving expert evidence to giving their assessment of the factual position, which was a matter for the court. In commenting on the tenant break clause, Mr Bloomfield “descended into the arena and went well beyond the scope of an expert’s proper evidence” and “in effect argued the law and how it applied to the facts of the case, his report reading more like a skeleton argument than an expert report”.
Mr Bloomfield also noted in an email seeking information from a letting agent that “I am arguing that auto fast fit operators are prepared to take 10 year leases without break and am therefore looking for recent lettings to such operators.”
The judge noted that:
“it is for the expert to reach an independent conclusion, his or her opinion, as to what the position is on the available evidence. It is not to ‘argue’ a particular position and not to reach a conclusion and then seek the evidence afterwards. Further, if putting forward factual evidence said to reflect the market, it is important the expert is both accurate and that the evidence relied on can properly be taken to reflect the market.”
The judge also noted some other factors where Mr Bloomfield’s approach was, at least to some extent, to act as a “hired gun”.
Judge’s conclusion on the expert evidence
The judge concluded that Mr Bloomfield strayed into partisan argument and saw himself as an advocate rather than giving independent and impartial evidence to the court of his own independent opinion.
He noted that was also to some extent true of Mr Hardy. Mr Hardy’s experience of acting for tenants and negotiating relevant matters on their behalf “rather came to the fore in how in advanced his ‘opinions’ and the manner in which his position developed.” The judge concluded that “[a]s with Mr Bloomfield I regarded him as naturally advocating positions… rather than candidly giving the court the benefit of his independent expert opinion.”
The judge noted that that the manner in which both experts gave their evidence was more advocacy than opinion was to some extent demonstrated by their positions with regard to the effect of the lease on the rent. Both experts held one view about his effect with respect to the tenant’s break clause, and the opposite position in respect of the market rent.