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The Expert Witness - Facing The Challenge

The Blundell Memorial Lecture at the Royal Instituion of Chartered Surveyors 2 June 1997

1 At the beginning of his paper Jonathan Gaunt QC directed us towards the classics. He has associated Lord Woolf with the platonists but he has contrasted Lord Woolf's approach with another school of ancient philosophy, the cynics, a sect that was remarkable for its propensity to criticise the lives and actions of men. Jonathan did not refer to one of the most celebrated cynic philosophers. Diogenes, you may recall, was banished from his country for passing false currency. He was notable not only for his independence of mind but also for some unusual habits - one of which was to walk about the streets with a tub on his head which apparently served him as a house and a place of repose. Jonathan has also associated a number of Her Majesty's Judges with the cynical school of philosophy and he has generally promoted the cynical view, the bias of this particular expert witness however, if there is a bias, will be towards the platonic ideal!

2 But whilst presenting what I hope is a positive view, I do not and cannot deny that there has long been criticism of expert witnesses. For example, another distinguished Victorian Judge, Lord Bramwell, who had a brother who was an expert, after listening for several hours to the conflicting evidence of two expert witnesses announced that he classified untruthful witnesses as "liars, damned liars, expert witnesses and then of course there is always brother Edwin".

3 However, the critical remarks of Sir George Jessel and Lord Bramwell were made a long time ago, before the RICS Practice Statement, the Official Referees Solicitors Association Protocol and the creation of the Expert Witness Institute.

4 The real questions before us are not so much what is wrong with the expert witness but how can our dispute resolution systems extract the maximum value from the experts? To what extent are the skills of the expert witness being properly used and if they are not being used to the best advantage, then where do the responsibilities for optimising their usefulness lie? Do they lie with the lawyer, the institutions or the experts themselves?

5 Of course the expert witness has always been vulnerable to criticism but then so indeed has been the entire field of litigation and dispute resolution. The fact of the matter however is that there can be no justice without reference to the enormous wealth of specialist skill and knowledge that is available from a wide range of professions and businesses and this has always been the case; since the idea of introducing evidence from a party with specialist knowledge goes back to the 14th Century.

6 In this paper I hope to show that some of the criticisms of the expert witness are not fully justified whilst those that are, are now well on the way to being met by the experts themselves.

The Essence Of The Expert

Skill & Experience in the Specialist Subject

7 So what is an expert? In Abbey National Mortgages plc v Key Surveyors Nationwide Ltd QBD (1995) 44 Con.L.R. 22, CA [1996] EGCS 23, Judge Hicks QC said

"expert, in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of, or in connection with that question, that his opinion on it would be admissible in evidence".

8 But an employer of an expert witness should be advised to look further than this definition. I prefer the definition "one whose special knowledge or skill causes him to be an authority" or "one who has gained skill from experience or is trained by experience or practice". An expert should be expected not only to know a set of given facts but also should have the ability to draw conclusions from them.

9 In selecting an expert in the field of property, one must focus on the experience and knowledge that that individual has acquired in respect of particular types of property and perhaps more specifically, in particular parts of the country. If the nature of the dispute is such that value is in contention, then clearly the expert must have experience and knowledge of that issue. However, this should not merely be possession of relevant information. It is necessary that the expert should be able to marshal the legal facts and analyse data which in turn may require adjustment if the comparable data if it is to have any relevance to the subject property. Above all, the expert must be able to distil this information and set it within the market place where value is truly established since it is only transactions that create benchmarks of true value. An expert must have actual experience of that market place.

10 In my view a knowledge of valuation skills and knowledge of the law are insufficient by themselves. There must also be the experience of marketing and dealing in that type of property. I choose the word "dealing" with some deliberation.

11 At first sight this assertion may appear to be so obvious that it need not be restated but in my view it does because the property profession remains stratified into three broad areas. First, there are those that consider themselves proficient with professional work such as valuation and landlord and tenant matters. Secondly, there are the agents. They advise on the buying and selling of property for investment, development and occupation. They are very much in the market place, "doing deals". They know about marketing. They are negotiators. They meet the vendors, the purchasers, the lessors and the lessees. They know at first hand the taste and smell of the market. Finally, there is a third category of course which embraces those who undertake both categories of work. They are the surveyors who have a good working knowledge of property law. They also know, at first hand, the taste and smell of the market place. They will be equally comfortable in negotiating rent reviews, undertaking valuations and advising on property investment, development and marketing and letting of buildings.

12 In my view both professional and agency experience should be present in an expert if he or she is to have optimum credibility in the court room or hearing.

13 The situation with those practising in areas of property other than valuation, is not quite the same, but similar principles still hold good. If the professional is a planner, a building or quantity surveyor, then he must have dealt with, and should still be dealing with, the "nuts and bolts" of his "specialist activity" on an ongoing and regular basis. The expert has to have his feet firmly on the ground.

Qualified by Experience

14 Of course it does not follow that an expert need necessarily have any specific paper qualifications. In James Longley & Co Ltd v South West Thames Regional Health Authority (1984) 25 Build L.R. 56, it was held that a construction claim consultant could probably be regarded as an expert despite having no qualifications as an architect or a quantity surveyor. Lloyd J, stated "an expert may be qualified by skill and experience, as well as by professional qualifications".

15 I certainly have experience as an arbitrator where unqualified but well experienced experts have presented high quality and persuasive evidence but as already mentioned, it is my view that an expert witness valuer should ideally have a background that includes both professional and agency work and indeed he is likely to be a far more effective witness if he has acquired professional training and qualifications in his field of expertise.

16 In addition, he should possess an intellectual approach that is proficient in comparing, assessing and indeed judging. In R. v Silverlock [1894] 2 Q.B. 766, Vaughn-Williams expressed the view that "no one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people".

17 An experienced arbitrator or independent expert should, of course, have these qualities in good measure.

Honesty & Impartiality

18 The expert must also have two essential qualities - total honesty and candour so that his commercial opinions will not only be relevant but will be respected by others as being valid. Impartiality and independence are both, in my view, implied in this. The cynic might say that total honesty and commercialism sit rather uncomfortably together. Napoleon certainly thought so when he said "the surest way to remain poor is to be an honest man". Elsewhere in French literature, however, a more optimistic view can be found. La Bruyere said "a show of a certain amount of honesty in any profession or business is the surest way of growing rich".

19 In commenting on the expert's responsibility to be honest and truthful, we must also inevitably look at his or her responsibilities, as Cresswel, J reminded the professions in the landmark case of National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 L.L.R. 455.

"The duties and responsibilities of expert witnesses in civil cases include the following:

1 Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. (See Whitehouse v Jordan [1981] 1 WLR 246)

2 An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.

3 An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4 An expert witness should make it clear when a particular question or issue falls outside his expertise.

5 If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness, who has prepared a report, could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6 If after exchange of reports, an expert witness changes his view on material matters having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

7 Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.

20 Cresswel J, interestingly, also had some very worthwhile criticism to make about expert meetings in his preamble to the duties and responsibilities section; but I shall come back to that later.

21 The Ikarian Reefer, also known as National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 L.L.R. 455, is seen not only as an important resume of the duties and responsibilities of expert witnesses but also as a criticism of experts, particularly a criticism of polarisation, in that opposing experts can hold such widely diverging and conflicting views. It is therefore noteworthy that the Court of Appeal overturned Cresswel J's judgement at first instance and also criticised his approach; for, when the Judge was reviewing the evidence, in relation to the various theories put forward, he expressed the view, in every instance where there was conflict of opinion between the experts, that he preferred the view of the owner's experts but gave no specific reasons for doing so. The Court of Appeal remarked that they found it "remarkable that honest, distinguished, experienced and qualified experts called on behalf of the defence in relation to the fire should always be wrong, while those called on behalf of the Plaintiff should always be right".

22 Although, significantly, the Court of Appeal endorsed Cresswel J's definition of the duties of an expert, they added a note of caution to the proposition that "an expert should make it clear when a particular question or issue falls outside his expertise". Stuart Smith LJ said "it is evident that in this case the Judge was concerned to confine each expert to his area of expertise; but it is not always possible do so and where the subject of enquiry is fire, an experienced fire expert, when he is assessing the significance of certain evidence, must be entitled to weigh the probabilities and this may involve making use of the skills of other experts or drawing upon his general, mechanical or chemical knowledge".

23 Could not that also be said of valuers who must, for example, have regard to the business climate and the economy, in addition to their own special area of expertise?

Conflicting Expert Witness Evidence

24 One of the criticisms often levelled against the expert witness is that he is a hired gun; commissioned because he will produce the expert opinion which will underpin the client's case. If this is the case might it be removed by the use of a single, court appointed expert instead of each party bringing their own experts? This has been suggested as a possibility by Lord Woolf. In the property field, however, I do not believe that it is the best answer. Indeed, in general I am not sure that this criticism is as widespread as has been suggested.

25 Expert witnesses involved in property will, in many situations, inevitably hold very different views on, for example, valuation and construction matters. They are entitled to do so.

26 Valuation is imprecise. To say that valuation is an art rather than a science has become something of a cliché but it remains an accurate comment, judicially supported; for in Midanbury Properties (Southampton) Ltd v Houghton;T Clark & Son Ltd v Heathfiled (two rulings) (1981) 259 EG 565, it was said that "the Tribunal may be assisted and persuaded more effectively by evidence which adopts a realistic and pragmatic approach rather than by treating the valuation exercise as an exact science, as a mathematical calculation, which it is not". I rather favour the view that market value is not a single number. In Carreras v Levy (D.E. and J.) (1970) 215 EG 707 it was suggested that it may be good valuation practice in particular circumstances to express market value as being within a range of figures rather than a precise figure. If this approach is accepted then it must be the case that valuers will be found to have differing professional opinions, some of which will be more attractive to a particular client at any one time than those of another! These differing views can be honestly held to be impartial if properly reasoned and supported. London & Leeds Estates Ltd v Paribas Limited 1993 Issue 30, Estates Gazette, p.89 illustrates the importance of a consistently held approach when considering impartiality and independence.

27 Construction is also another field where dramatic differences of opinion can arise. Take a dispute involving a building suffering from severe structural movement. Different views have been put forward as to the cause of the problem. One engineer believes that it results from inadequate foundations whilst another is convinced that the problem arises from the severe lateral thermal movement that can be set up in a structure having an exceptionally long frontage. Each expert opinion is put forward by a respectable and well qualified professional. Both of whom are, apparently honest and impartial, engineers. One, however, suggests that the remedial works will cost £100,000 whilst the other suggests that they will cost only £20,000. Either could be right. It may even be that the true answer involves an element from both points of view, but each expert's opinion has an equal right to be heard and, subject to the Tribunal's impression of the witness, each expert has the right for his evidence to be weighed equally by the Tribunal. Surely an expert's opinion need not be impugned simply because it differs dramatically from the opinion held by another expert? We must also bear in mind, as The National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 L.L.R. 455 experience demonstrates, that experts are usually called upon to assess possibilities and probabilities rather than certainties and often many years after the event has taken place.

28 Certainly a Court appointed expert could have an important role in situations where expert witness evidence diverges widely but the role would be better occupied as an assessor advising the Tribunal rather than the sole source of expert opinion. Even court appointed experts can get it wrong! What price, justice and fairness in such circumstances?

Narrowing the Issues

29 In looking at areas where the role of the expert witness can be improved, it must be worthwhile focusing some attention on the pre-hearing meeting.

30 The "Access to Justice" report seeks not just to improve the way in which the Court operates. Its key tenet is that litigation should be avoided wherever possible and also that litigation should be less adversarial and more co-operative. It was those aspirations that encouraged the production by the RICS of the Practice Statement and no doubt also the expert witness protocol that is being drafted by the Official Referees Solicitors Association. Like the RICS document, it is intended to encourage the independence and impartiality of the expert. Both of these documents cover the "without prejudice" meeting.

31 The RICS Practice Statement, in paragraph 7.1, states that:

  • A surveyor must comply with directions from the Tribunal to meet with opposing experts
  • Agree relevant facts and calculations; and
  • Seek to identify the issues and the reasons for any difference of opinion.

Where he is unable to comply, he must prepare a written record of the reasons for the non-compliance.

32 The draft Official Referees Solicitors Association Protocol follows a similar theme but it goes rather further and is more akin to the RICS Guidance Notes. Both suggest that the meeting should take place before the exchange of expert's reports and therefore before the parties reach deeply entrenched positions. The ORSA recommendations state that solicitors should never impede the expert in reaching an agreement. Both documents suggest that there can be merit in having meetings that include experts from more than one discipline.

33 The RICS Practice Statement goes a little further in saying that with the consent of the appointer, experts can come outside the expert witness remit to conduct "without prejudice" meetings to explain and possibly settle differences as to fact and opinion. It is this statement in paragraph 15.7 that seems to open the door, just a chink, into the world of non-adversarial, alternative dispute resolution and perhaps more particularly, mediation.

34 Is it possible for us to make the leap from here to the possibility that a court appointed expert could chair a pre-hearing experts meeting with the court appointed expert being an experienced, accredited mediator? A forum such as this could be very effective in closing down frivolous points and narrowing the issues to core matters. The result of course would be faster and cheaper litigation.

35 Such change would, it seems to me, be in line with the Practice Statement (Commercial Cases: Alternative Dispute Resolution) (No 2) [1996] 1 WLR 1024, issued in the Commercial Court under Mr Justice Waller. It positively encourages parties to adopt ADR. The Statement reads:

"the judges of the Commercial Court in conjunction with the Commercial Court Committee have recently considered whether it is now desirable that any further steps should be taken to encourage the wide use of ADR as a means of settling disputes pending before the Court.

It identifies five factors:

  • a significant reduction in cost
  • a reduction in delay
  • the preservation of commercial relationships
  • a wider range of settlement solutions
  • more efficient use of judicial resources"

36 To go back to the Ikarian Reeefer in the Court of Appeal, Stuart-Smith LJ, said "it is plain that the judge was greatly oppressed by the volume of expert evidence". If we go back then to Cresswel J's comments when he was referring to expert evidence, he says "throughout the trial I have had regular reviews with counsel in an attempt to reduce the extent of the expert witness evidence and save time. I gave a number of further directions to this end ... Despite these efforts a great deal of time was taken up by expert evidence ...".

37 We see here the contradiction. The expert witness, on the one hand, is the most essential tool at the service of the tribunal whilst at the same time, if the experts are not properly managed then they can epitomise everything that is poor in the traditional litigation process.

38 It is however clear that real changes are taking place and will no doubt continue. The RICS Practice Statement is just one example but an important example of such change.

Working With The Practise Statement

Greater Weight

39 This important document came into effect on 1 March 1997. I believe that the RICS deserves credit for being a leader in this field. I also understand that there are many other professional institutions studying the Practice Statement with interest and considering using it as a model for their own. The Practice Statement has strong support but of course there were also voices who raised questions as to how it will work in practice. Some have said that it will make the job of the chartered surveyor acting as an expert witness more difficult. My response to that is that he/she has, through this Practice Statement, now gained a valuable tool which will enhance his/her standing with clients because the evidence he submits in court will now carry greater weight than it did previously. In turn this should make the surveyor of greater value to his client. It does mean however that a surveyor must now have a clearer idea of the different roles which he performs.

40 For example, with a rent review he must be aware that he starts in the role of a negotiator and he can quite reasonably say "that the comparable evidence or the market evidence will support a value of £X". If he also believes that to be the appropriate value, then if necessary he can go on and be an expert witness to that effect if the matter goes to a hearing. If that is not what he believes then he must advise his client accordingly. The client may decide whether he wishes the same surveyor to be an expert witness, albeit expressing a different level of value. If the client has faith that the surveyor's true opinion is correct, then presumably he will live with it. If he has doubts, then another expert witness may be used.

41 The client must be aware that the evidence of a chartered surveyor, even at a different valuation level, will carry greater influence with the tribunal than would another expert witness proof that was not underpinned by the Practice Statement. Through it the surveyor is providing a certification and an affirmation of his proper roles as professional adviser and expert witness.

42 There has been some debate about the fact that the Practice Statement is applicable not only to expert evidence before judges and arbitrators and other tribunals, but also to evidence presented to an independent expert. Of course an independent expert in the majority of cases is not obliged to receive submissions and the expert witness does not have the same obligations to him that he would have before a tribunal. However, the practice statement applies equally to both situations. In that situation the Practice Statement envisages that the expert witness will use the same standards of honesty and candour that would be appropriate in a court or arbitration. The reason that these obligations are maintained before an independent expert is simply that the RICS consider that as a matter of public policy the independent expert should be able to assume that a chartered surveyor making submissions to him, will be speaking in total honesty and openness.

43 Sir George Jessel, MR said that there was no sanction to deal with a dishonest expert but for chartered surveyors at least this has now changed. The new Practice Statement and Guidance Notes for "Surveyors Acting for Expert Witnesses", makes it clear that the expert's duty is to be truthful as to fact, honest as to opinion and complete as to coverage of relevant matters. The surveyor's evidence must be independent, effective and unbiased. In particular it must not be biased towards the party who is paying.

44 The significance of setting out the duties of the surveyor acting as an expert witness in a Practice Statement is of course that under RICS Bye-Law 19(7) and by virtue of Conduct Regulation 23, it is the duty of every member to comply with the contents of a Practice Statement. A member that does not comply may be subject to disciplinary measures. A clear and unambiguous sanction is therefore now in place.

Training Expert Witness Skills

45 Although I have advocated using an expert witness who has solid day-to-day experience of his subject, this must in no way detract from my view that the expert has to be properly qualified through study - not only study of his own specialist subject but also the study of dispute resolution and most particularly, the skills of being an expert witness. The expert must remember that his function is to present and explain his evidence to the tribunal through his proof and his answers and so clarity in his written report and clarity in responding to examination in court are essential. The most able professional can disintegrate under cross-examination and even in the examination in chief, an expert witness may let his client and himself down through poor communication.

46 Whilst experience before an arbitrator or a judge may be the best form of experience, it isn't necessary for us to make all of our learning mistakes in public. Training in court room skills is an obvious alternative. Many of the points to remember are quite simple but are necessary and effective just the same. For example, the expert must know his and the other side's report very well. He must listen carefully to the questions and confine his answers to them. He should speak slowly and clearly and try to be interesting bearing in mind that although it is the barrister producing the questioning, it is the judge whose attention must be captured and retained.

47 Expert witnesses of course can be trained on how best to work with the barrister and even perhaps guided as to what they should expect from a good barrister. For example, whilst the barrister should not be suggesting what goes into the expert's proof, it may be that he might usefully advise on the removal of some passages if they are unnecessarily repetitious and might result in wasting the court's time. But the most important service that the expert witness will be seeking from a good barrister is clear advice on the likely cross-examination from the opposition.

48 Important as familiarity with the procedures used in the hearing are, the expert must of course not lose sight of the fact that most cases apparently destined for court, do in fact settle beforehand and so skill in presenting the written report is perhaps is even more important than court room skills. Those professionals involved in the property professions are generally skilled in this area but even here I am quite sure that training can still improve standards.

49 In any event we need to bear in mind that experts should not be restricted to the ranks of those very experienced professionals who are moving towards the end of their careers. If the courts and tribunals are to have the benefit of the widest range of quality professionals with good current best practice experience, then they must also look to younger people and although being a bag carrier in the very early years, is a fine way of learning, I see no reason why the learning process should not be accelerated and consolidated through high quality training.

50 The RICS Dispute Resolution Practice Panel is looking at this area and considering the possibility of either developing or being associated with a register that includes experienced expert witnesses as well as trained expert witnesses. In addition the RICS is cooperating with the Expert Witness Institute, the new organisation which Lord Woolf presides over. This organisation is dedicated to setting standards for expert witnesses and to organising training.

Conclusion

51 By and large change is something that you are only properly aware of when you look back. I believe that we will look back on 1997 as being the time when a new approach to dispute resolution was beginning to be taken seriously. We will see strict codes of practice being adopted by expert witnesses in a wide range of different professions and we will see the expert witness skills being taken seriously as an art that can and should be taught. Above all, I hope that we will see expert witnesses being used in ADR processes to facilitate and enhance the litigation process. Through changes such as these the expert witnesses will be even more worthy of the trust that the judiciary must inevitably place in them.

Anthony Salata

THIS WAS THE SECOND HALF OF A JOINT LECTURE AND WAS PRECEDED BY A PAPER BY JONATHAN GAUNT QC

MONDAY 2 JUNE 1997
AT
THE ROYAL INSTITUTION
OF CHARTERED SURVEYORS