Lacking credibility? An expert’s overriding duty to the Upper Tribunal

The case of Heath Colin v London Southend Airport clarifies the obligations of experts when giving evidence to the Upper Tribunal (Lands Chamber)

27 August 2021

Why are experts needed?

Expert evidence is used to assist the court when the case before it involves matters on which it does not have the requisite technical or specialist knowledge. When acting as an expert, the judiciary expects the expert to act with clarity, impartiality and independence. Experts should have the relevant expertise required, as experts that generalise or are out of date will not fulfil their obligations to the court.

Experts’ obligations to the Upper Tribunal

The duties of an expert witness in any Upper Tribunal (Lands Chamber) proceedings are set out at Rule 17 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (the 'UT Rules'), and Part 18 of the Lands Tribunal Practice Directions 2020 (the 'UT PD') which supplement those rules.  

The duty of an expert is to help the Tribunal on matters within their expertise and this duty overrides any obligation owed to the client or their agent.  Any application of this overriding duty should be informed by Part 35 of the Civil Procedure Rules (the 'CPR'), and the accompanying Practice Direction 35 and Guidance for the Instruction of Experts in Civil Claims.  Experts may also have to comply with any professional guidelines which apply.

In accepting instructions as an expert, an expert must be satisfied that they are able to fulfil their overriding duty, and that they are able to act with independence.

Heath Colin Alridge & Others v London Southend Airport Company Limited

In the recent Upper Tribunal (Lands Chamber) decision in Heath Colin Alridge & Others v London Southend Airport Company Limited [2021], the Tribunal was not satisfied that the experts in the case had sufficient regard to their duties, choosing to reject the experts’ valuations.

The Tribunal focused on determining how the change in noise levels resulting from the use of the runway extension at London Southend Airport affected the market value of the lead claim properties.

The Tribunal endorsed the principle of assessing the depreciation in value of the lead claim properties having regard to the values with and without the runway extension being in use, known as 'switched on' and 'switched off' values. The Tribunal relied on their own 'switched on' values which were the mid-point values between the parties' experts' respective valuations.

In determining the 'switched off' values, the Tribunal rejected the claimant’s expert’s use of 'repeat sales test' based on analysis of repeat sales of matching pairs of properties, one affected, one unaffected by the use of the runway extension. The Tribunal also rejected the airport’s valuation experts’ approach of applying indexing to pre- and post-first claim day prices. This resulted in none of the properties having experienced depreciation in value, whereas during cross-examination the expert had conceded that 'at least some of the properties had been depreciated.

Dissatisfaction with experts in other recent cases

In Bluefoot Foods Ltd v Greater London Authority (2015), the Tribunal found that Mr Rabinowitz's expert report failed to consider the inaccuracy of the accounts provided by the claimant. The expert’s evidence was not found to be evasive or untruthful in anyway, but the Tribunal found that by Mr Rabinowitz’s own admission and confirmation within his report, his valuation assumed the revised accounts provided by the claimant (Mr Rosen) were entirely accurate.

In Mohammed v Newcastle City Council (2016),  the Upper Tribunal also noted that some of the expert witnesses had accepted much of what they were told by the claimants far too readily and as a result had failed to exercise the type of meaningful critical and objective judgment expected of an independent expert witness. It was insufficient for an expert simply to rely on what a claimant had told him. The Tribunal notes that an expert should not be the “puppet” of his client but should act in a way that satisfies the duties required under UT Rule 17(1).

Why does it matter?

It is extremely important for parties in Tribunal proceedings that their experts retain credibility in front of the Tribunal, as a lack of credibility can lead to evidence being disregarded, negatively impacting a party’s case.  Ensuring an expert understands their primary duty to the Tribunal from the outset of their instruction is a critical step in ensuring credibility is retained throughout.  Failing to do so can of course also lead to serious implications for costs awards by the Tribunal. 

Key contact

Alex Minhinick

Alex Minhinick Director

  • Planning and Compulsory Purchase
  • Energy and Utilities
  • Infrastructure

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