by Martin Burns
There have been a number of recent court cases in landlord and tenant disputes, which have spotlighted failures by expert witnesses to apply themselves properly and follow the basic rules. Judicial criticism of land and property experts puts professional reputations at risk and may even prevent some people from taking on this interesting and remunerative work in the future
It is a fact of life that many landlords and tenants can, and will, fail to see eye-to-eye on a range of matters. There are many things that Landlords and tenants routinely fail to agree on. Service charges, dilapidations, the terms of leases at renewal and whether property is fit for purpose following damage to insured risks are just a few of the types of disputes that can be referred to a judge or quasi-judicial tribunal. In some instances, the parties will take their differences to litigation or a private form of dispute resolution, such as arbitration or expert determination. When a landlord and tenant dispute is referred to an impartial tribunal, the issues at the heart of the case can be technical and highly specialist in nature. So much so, that the tribunal will possibly require and rely on evidence provided by one or more expert witnesses.
The function of the expert witness is to help the judge, or other tribunal, to understand property related matters which are outside the realm of the judge’s day-to-day knowledge and experience. The testimony of the expert does not bind the judge, but simply adds technical detail to the evidential picture. It helps them to connect properly to the matters in dispute and reach an informed decision.
The ability of a judge to take on board expert witness testimony is undeniably helpful, and it is becoming increasingly important for landlord and tenants to instruct professionals who can lend relevant expertise to the resolution of property related disputes. It is critical for these expert witnesses to understand the nature of their role and their overriding duty to be open and honest. This is the position even if the expert’s testimony might damage the case for the party who has instructed them and is paying their fees. What follows is a few basic guidelines that are designed to help anyone taking on the role of expert witness to avoid obvious pitfalls.
Be the owner of the evidence you submit.
An expert witness should, at all times, be clear that the opinion they submit in evidence is their opinion and not the opinion of anyone else. They should state only that which they are professionally comfortable in stating. They should not be tempted to adopt a position which they cannot then rationally justify on the basis of the overall evidence in the case, the learning that is pertinent to their area of expertise and their own professional experience. Quite simply, an expert witness should express their own views and not stray outside their area of expertise.
Avoid being, or being seen to be, partisan or inflexible.
It is natural that an expert will disagree with alternative opinions put forward by another expert. A good approach is for an expert to identify and articulate those parts of an alternative analysis submitted by another expert which they can agree with, and then explain clearly and rationally why they disagree with other parts, or indeed the overall conclusion(s) posited by the alternative expert. This approach will create a sense in the mind of the tribunal that the expert is credible, will carefully consider alternatives and is neutral. It also demonstrates the expert’s understanding of the requirement not to simply support their instructing party’s case unflinchingly. It reveals an expert who is rationale and capable of moderating their opinions in the light of valid arguments expressed by someone who is also an expert in the same subject matter.
Being non-partisan is not only about what the expert provides in the way of opinion and evidence. An expert is entitled to be paid a reasonable fee for work they undertake. However, the method of their remuneration must not betray the possibility that they will be better rewarded if their instructing party wins their case. A connection between a party’s success in proceedings and the reward an expert receives for their part in this may not always be obvious. It follows that an expert must not only be alert to the requirement not to accept a conditional fee arrangement for the services they provide, they should also be cognisant of matters such as any reward their firm or employer might receive.
An expert must be clear in thought and in what they write and say.
An expert witness is usually instructed because the issues the tribunal is grappling with are not straightforward and may well be extremely complicated. An expert should remember at all times that the audience for their evidence is unlikely to understand technical language relating their area of expertise. They should think about the people who will read their reports, the key messages they want to get across and how to articulate the critical points that underpin their opinion before they start writing their report.
Begin a report with a paragraph or page which sets out the basics of the subject area on which their expertise is sought, and how the particular point in question fits in to the overall picture. Photographs diagrams and other images that demonstrate specific points help make an expert’s report accessible to nonexperts. An expert should always avoid saying too much or going into unnecessary detail. Sentences should be short. The overall content should be open and well-spaced. Paragraphs and pages should be numbered
When giving oral evidence the ability of the expert witness to be clear and concise will be challenged. It is here that experts who have been the subject of judicial criticism have been the most wanting. An expert should remember when giving oral evidence that questions asked by the barrister/advocate acting for the instructing party are usually “open” and intended to give the expert space to explain their opinion on the relevant technical issue. When responding to questions, they should state their honest opinion and, where appropriate, provide succinct explanations for it.
It is particularly important when responding to questions posed by a barrister/advocate instructed by the other party that the expert takes time to think before speaking. They should avoid rushing into a response and give only opinions about matters that fall within their personal sphere of expertise.
The recent criticism of expert witnesses in several landlord and tenant disputes highlights the need for clear guidance to be given by professional bodies to which most expert witness belong. It also highlights the need for professional bodies to encourage their members who act as experts to be trained, assessed and routinely monitored to ensure they are, and remain, up to speed on what is required to discharge the role effectively.
Martin Burns RICS,
Head of ADR Research and Development