Promoting and enhancing best practice and technical expertise

Expert Witness - Terms and Engagement

The Impact of Gardiner Theobald LLP v. Jackson (VO) 2018

The Upper Tribunal handed down a decision on 3 August 2018 in Gardiner & Theobald LLP v. Jackson (VO) 2018 which will have a significant impact on the way surveyors and other expert witnesses set up fee arrangements while preparing and giving evidence to a tribunal court.  Whilst this is a rating matter heard at the Upper Tribunal, its effects are far wider and is important for any expert witness and their firms, who prepare and give evidence in a judicial environment.


Start Date Venue Price  
2 October 2018 Ashurst LLP, London    

Note: All prices are to be paid in GBP and are subject to VAT at the prevailing rate

Event duration: Evening Event (1.45 hrs CPD) Event will be followed by Drinks & Canape Reception.
Registration from: 17.00. Event starts at: 17.30. Event finishes at: 19.15. Reception Close: 20.00.

      We would like to thank Ashurst for the use of their facilities.

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A core principle in being an expert witness for any case and any court or tribunal, is that you are beholden and assist the court and form an independent opinion. You must be seen to do so and must be seen to be completely open and honest in your opinions, which the court can then rely upon and which will be the foundation for their decision.

 

It is accepted that it is ‘wholly unacceptable for an expert witness, or the practice for which he or she works, to enter into a conditional fee arrangement, without that fact being declared.’ Indeed, RICS professional statements effectively outlaw such arrangements for its members.

 

But in Gardiner & Theobald LLP v. Jackson (VO) 2018, the tribunal considered whether the fee arrangements - which were conditional in nature - for preparatory work in advance of the hearing compromised the expert witness, even where a fixed fee was charged for expert witness work. It determined this was the case.

 

The Tribunal noted that whilst an individual expert might not consider questioning his or her firm’s standard conditions, their primary duty is to the court and this duty overrides all else. The decision also considered the procedure for dealing with possible breaches of an expert’s obligations to the tribunal or of a professional code of conduct.

 

The ramifications are that all expert witnesses should review (and if necessary amend) their terms of business and fee arrangements in the light of this judgement.  

Speakers

Programme

Welcome from the Chair Dan Kolinsky QC

Core Expert Witness Principles 

  • What is expected and best practice – Civil Procedure Rules, guidance from the courts, RICS Practice Statement.
  • The position of the expert should not be confused with that of the advocate.
  • An expert is obliged to disclose all relevant information – a duty of candour. 
  • The duty of candour rests with both parties.
  • The requirement  to  act  objectively  and  independently – when does this begin? 
  • These duties are to the Tribunal or Court, not to the party instructing or paying the expert witness.

Reviewing Gardiner Theobald LLP v. Jackson (VO) 2018

  • What does the decision say and what does it change?
  • Where does it apply – Upper Tribunal, Valuation Tribunal and other courts?

Ramifications of the Decision

  • What are the ramifications for CPO cases?
  • What are the ramifications for rating cases?
  • Are contingency arrangements totally banned henceforth?
  • Are there different expectations between the VTE and the UT?
  • What to do with historic fee arrangements in live cases going forward? 
  • Can you insulate the expert from prior contingency arrangements? 
  • How far can you use disclosure arrangements to minimise any impact on your evidence?
  • Are there lessons from experts operating in other jurisdictions? 
  • What should your terms of business should now say?
  • Where an expert acts in a dual capacity as advocate and expert – what now?
  • Can both types of work be ring fenced?
  • Can the appointment of a second expert to provide evidence, offer a solution? 
  • Can the exiting firm acting to prepare the case appoint an independent expert to give expert to assist the court? A poisoned C
  • When an appeal is brought from a lower court, where contingent fee arrangements were permitted, can one party in the appeal argue that the evidence of the expert witness remains open to bias? 
  • Can parties challenge evidence given prior to the Gardiner Theobald LLP v. Jackson (VO) 2018 case?

Questions and Debate amongst Speakers and Audience


Drinks and Canapés