Issue 39 October 2021 - Journal - Page 30
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)
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.
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 Experts should have the relevant expertise required, as experts that generalise or are out of date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.
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.’
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.
Dissatisfaction with experts in other recent cases
In Bluefoot Foods Ltd v Greater London Authority
(2015), the Tribunal found that the 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 the expert’s own admission
and confirmation within his report, his valuation assumed the revised accounts provided by the claimant
(Mr Rosen) were entirely accurate.
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 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).
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 , the Tribunal was not satisfied that the experts in the case had
sufficient regard to their duties, choosing to reject the
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
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
EXPERT WITNESS JOURNAL
O C TO B E R 2 0 2 1