Kerry Underwood


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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

In Gardiner & Theobald LLP v Jackson (Valuation Officer) [2018] UKUT 253 (LC) (3 August 2018)

the Upper Tribunal Lands Chamber looked at the extent to which principles established in

R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 932

concerning an expert witness being paid under a Conditional Fee Agreement or other success fee arrangement, apply to tribunal proceedings.

Factortame established, in  civil proceedings, that it would generally be “highly undesirable” to instruct an expert on a contingency fee basis as that might threaten the objectivity of the evidence and, only in “a very rare case indeed”, would the court consent to it.

The CJC Guidance for the instruction of experts in civil claims strongly discourages payment of experts’ fees contingent on the nature of the expert evidence or the outcome of the case.

The President of the Lands Chamber noted that sometimes a slightly different approach is appropriate under tribunals’ procedures.

In Keen v Worcestershire County Council (LCA/44/2001),

which pre-dated Factortame, it emerged during a hearing that a surveyor was acting on a no win no fee basis.

The tribunal decided that no weight should be given to his evidence due to his financial interest in the outcome.

The President of the Lands Chamber observed that applying factors established in Factortame to assess the weight to be attached to an expert’s report, rather than the admissibility, might allow “a more nuanced approach”.

However, he emphasised that, whatever approach the tribunal decided to adopt regarding Factortame, it was “wholly unacceptable” for an expert witness to enter into a Conditional Fee Agreement without declaring it in sufficient detail to the tribunal and other parties from the very outset of their involvement in the case.

Failure to do so would be treated as a “serious matter”.

Specific factors considered included the terms of the Conditional Fee Agreement, access to justice, the need for compliance with obligations owed by expert witnesses to the tribunal, and the Code of Conduct and Practice Statement of the Royal Institute of Chartered Surveyors with the Royal Institute of Chartered Surveyors to be asked to consider if any action is required following this case.

Written by kerryunderwood

August 30, 2018 at 8:30 am

Posted in Uncategorized

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