In a striking decision in Carr v Evelyn, the First Tier Tribunal (which is the name now given to the body that is still universally called the Agricultural Land Tribunal) has very heavily criticised the landlords and their main expert witness in a contested succession application.
Many agricultural professionals carry out some expert witness work. This decision will make them wince. The expert witness was described as 'a ‘hired gun’ put forward by the [landlords] to make their case and with evidence tailored to this purpose.'
The Tribunal refused to accept his evidence: 'he was a member of the [landlords’] team and not, therefore, a witness upon whose impartiality and independent expertise the Tribunal could rely' and 'his supposed expert evidence is not and cannot be seen to be an independent and uninfluenced product and for that reason cannot be admitted in evidence, or relied upon, by the Tribunal.'
The way in which instructions were given to the expert to clearly lead him to a particular conclusion meant that he had 'not been acting in any independent fashion is respect of these Proceedings, but is and, in the view of the Tribunal always has been, an active member of the [landlords’] litigation team.'
Judgments are normally quite moderate in their criticism of parties and witnesses. This judgment was brutal. It emphasises the risks that expert witnesses can run if things go wrong for them, and surely prompts a re-evaluation of the steps to be taken not only for an expert to be comfortable that they are acting independently, but in being able to show that they have acted independently. That will impact not just on experts, but on the lawyers instructing them, who do not emerge from this case in a good light.
Giving expert evidence can be difficult at the best of times. Over the coming months, resulting from this case, we will publish some more items about how it is supposed to be done, and the issues that arise.
The Consequences
Apart from giving the landlords’ expert and lawyers one of their less good days, the Tribunal’s decision also bit hard.
One of the features of the Tribunal is that costs do not usually follow the event. This means that the parties will usually be expecting to bear their own costs, even if they are successful. The normal approach among practitioners has been to consider that the Tribunal will only award costs against another party if they have been vexatious, abusive or frivolous, and these are not easy concepts to prove.
This is different from most disputes, where the loser is usually expected to pay the winner’s costs. In practice that does not mean all of the winner’s costs, but a healthy chunk of them (often around two thirds). At the start of a case, this can sound like an incidental point, but by the time a case has got to a hearing over several days, with thousands of documents and hundreds of hours spent working on it, these amounts can be very large.
In Carr v Evelyn the Tribunal addressed the general principle of costs in this jurisdiction, holding that whilst adverse costs could be awarded for incidents of vexatious, abusive or frivolous behaviour, the ability to order costs was not limited to those situations only.
It took an aggressive stance to the losing landlords, based upon how it said they had acted, and hit them in their pockets, ordering that they pay 80 per cent of the Appellant’s costs. It also said that those costs would be paid on the indemnity basis (which means that doubt will be resolved in favour of the tenant when costs are being assessed, and tends to lead to a party getting more money back) based on their disapproval of the landlords’ approach.
As there was a five day hearing in this case, with multiple expert witnesses, the costs will be very high. That may tempt the landlords to consider whether they should appeal.
There is no question that agricultural professionals called upon to provide expert evidence to the Tribunal by a party should be looking at this judgment carefully, and checking that they can demonstrate that they have maintained their independence.
Should you wish to discuss any of the issues raised in this article, please contact Kevin Kennedy or your usual Burges Salmon contact.