Rule 19: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Expert evidence

(1) It is the duty of an expert to help the Tribunal on matters within the expert’s expertise and this duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.

(2) No party may adduce expert evidence without the permission of the Tribunal.

(3) Expert evidence is to be given in a written report unless the Tribunal directs otherwise.

(4) Subject to paragraph (6), each party must provide a copy of the written report of any expert witness to the Tribunal and each other party at least 7 days before—

(a) the date of the hearing; or

(b) the date notified upon which the issue to which the expert evidence relates will be determined without a hearing.

(5)   A written report of an expert must—

(a) contain a statement that the expert understands the duty in paragraph (1) and has complied with it;

(b) contain the words “I believe that the facts stated in this report are true and that the opinions expressed are correct”;

(c) be addressed to the Tribunal;

(d) include details of the expert’s qualifications and relevant experience;

(e) contain a summary of the instructions the expert has received for the making of the report; and

(f) be signed by the expert.

(6)   The Tribunal may direct that—

(a) the expert’s evidence must be limited to such matters as the Tribunal directs;

(b) the expert must attend a hearing to give oral evidence; or

(c) the parties must jointly instruct the expert.

The old rules made no real provision about experts. Much of what is required under this new rule is extracted from the Civil Procedure Rules, but the requirements as to the contents of the report are differ from reports prepared for court hearings. Here, for comparison, is what the CPR demands in the Practice Direction to Part 35 of the CPR:

3.2 An expert’s report must—

(1) give details of the expert’s qualifications;

(2) give details of any literature or other material which has been relied on in making the report;

(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;

(4) make clear which of the facts stated in the report are within the expert’s own knowledge;

(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;

(6) where there is a range of opinion on the matters dealt with in the report—

(a) summarise the range of opinions; and

(b) give reasons for the expert’s own opinion;

(7) contain a summary of the conclusions reached;

(8) if the expert is not able to give an opinion without qualification, state the qualification; and

(9) contain a statement that the expert—

(a) understands their duty to the court, and has complied with that duty; and

(b) is aware of the requirements of Part 35, the practice direction to it and the Protocol for Instruction of Experts to give Evidence in Civil Claims.

In the light of this rule, when instructing an expert, it is worth ensuring that:

a) He has no personal connection with or interest in the outcome of the case or the parties involved in it;

b) He has the qualifications to be expected from an expert in the relevant area;

c) He is clear about what it is that he is being asked to do;

d) He is provided with all of the documents and information that he needs;

e) He is an expert in the relevant area that he is being asked to prepare a report on;

f) If the location of the property is relevant, that his expertise relates to that location;

g) He is aware of the declarations and information that he must provide to the Tribunal under this rule;

h) His expertise is current;

i) He is willing to attend court, give evidence and has some experience of doing so.

The power to direct the joint instruction of experts is, I think, good news. If all parties to a dispute have agreed to instruct the same expert, time and money can be saved in two ways: first, the costs of just one expert report are incurred, and second, the parties can save the cost of the attendance of the expert at the hearing by submitting written questions to him.

The joint expert is a good example of the overriding objective in action. Here again I defer to Lord Woolf’s Access to Justice Report of July 1996. In Chapter 13, our former Lord chief Justice wrote:

“19.    I do not think it would be appropriate to specify particular areas of litigation where a single expert should or should not be used. There are in all areas some large, complex and strongly contested cases where the full adversarial system, including oral cross-examination of opposing experts on particular issues, is the best way of producing a just result. That will apply particularly to issues on which there are several tenable schools of thought, or where the boundaries of knowledge are being extended. It does not, however, apply to all cases. As a general principle, I believe that single experts should be used wherever the case (or the issue) is concerned with a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of opinions. The expert’s duty to the court will require him to set out in his report his view of the range of possible opinions. Too often under the present regime the experts are in fact agreed upon the range of opinion, but their reports only set out the extreme positions.

“21.    A single expert is much more likely to be impartial than a party’s expert can be. Appointing a single expert is likely to save time and money, and to increase the prospects of settlement. It may also be an effective way of levelling the playing field between parties of unequal resources. These are significant advantages, and there would need to be compelling reasons for not taking them up. It is certainly not sufficient to say that a party is entitled to adduce separate expert evidence provided he is willing to pay for it.

“Recommendations
“My main recommendations are as follows.

“(1) As a general principle, single experts should be used wherever the case (or the issue) is concerned with a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of opinions.

“(2) Parties and procedural judges should always consider whether a single expert could be appointed in a particular case (or to deal with a particular issue); and, if this is not considered appropriate, indicate why not.

“(3) Where opposing experts are appointed they should adopt a co-operative approach. Wherever possible this should include a joint investigation and a single report, indicating areas of disagreement which cannot be resolved.

“(4) Expert evidence should not be admissible unless all written instructions (including letters subsequent upon the original instructions) and a note of any oral instructions are included as an annex to the expert’s report.”

In terms of deadlines, the main feature of this rule is the requirement to ensure that an expert report is provided to all parties at least seven days before the date of the hearing.

This is one of the rules which raises the question of whether days are to be calculated as clear days as they are under the Civil Procedure Rules, so that if the hearing is on Friday 28 June, the last day by which a report must be received is 5pm on Thursday 20 June. Or does at least seven days before mean literally seven blocks of twenty four hours?

One solution is to ensure that, where possible, an order directing provision of a report specifies the date by which the report must be disclosed. This works of course only where the date of the hearing is known on the date when the Tribunal makes the order. Otherwise, if there is any uncertainty, once the hearing date is known, it would be prudent to agree the method of calculating the last date for provision of the report, so the parties do not lose time on a technical dispute at the hearing.