If you give evidence as an expert at planning inquiries, I recommend that you read the judgment of Holgate J in Gardiner and Theobald LLP v Jackson (VO) (Upper Tribunal (Lands Chamber), 3 August 2018).
In the superficially different context of a rating dispute, he sets down unambiguously the perils that await any expert witness whose remuneration is in any way contingent on the outcome of the dispute. This reflects the position in the RICS code of conduct.
The question I then asked myself is whether the position can be any less strict in relation to any planning dispute, where someone is giving evidence as an expert (most commonly a planning inquiry but in my view equivalent considerations apply where a report is provided, on the basis that it is to be relied upon as independent expert evidence, in other proceedings that may appear less formal, such as hearings, examinations and written representations procedures).
The RTPI position is less explicit than that of the RICS (whose code equally applies to expert evidence in planning maters). I haven’t researched other professional codes of conduct (after finding that the Chartered Institution of Highways and Transportation does not appear to have a code of conduct on-line I gave up on that line of research for a Saturday morning).
In reading the judgment, bear in mind of course that Holgate J is both President of the Upper Tribunal Lands Chamber and the Planning Court’s Planning Liaison Judge (ie head of the Planning Court).
The position in relation to expert evidence given in court proceedings is clear. Holgate J refers to the R (Factortame) v Secretary of State (Court of Appeal, 3 July 2002) case, which related to an attempt by accountants to recover, as part of a costs claim, success-related fees that they had secured from Anglo-Spanish fishing companies though their work in relation to judicial review proceedings stemming from a dispute as to entitlements to fish in British waters. One of the matters for the court to consider was the extent to which the fees related to work which the firm had carried out that could be categorised as giving expert evidence.
The Court of Appeal held on the facts that it was not, but said this:
“Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the Judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.”
“To give evidence on a contingency fee basis gives an expert, who would otherwise be independent, a significant financial interest in the outcome of the case. As a general proposition, such an interest is highly undesirable. In many cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case. In such a situation the threat to his objectivity posed by a contingency fee agreement may carry greater dangers to the administration of justice than would the interest of an advocate or solicitor acting under a similar agreement. Accordingly, we consider that it will be in a very rare case indeed that the Court will be prepared to consent to an expert being instructed under a contingency fee agreement.”
Holgate J identifies that whether the Factortame approach is to be applied by the Upper Tribunal is a question for the Upper Tribunal (or, on appeal, the Court of Appeal). There is the question, not previously conclusively determined, as to whether the existence of a contingency fee arrangement goes to the weight to be given to the evidence or whether it is to be admissible in the first place.
He sets out some of the potential advantages and disadvantages of each approach before concluding:
“These issues would need to be the subject of well-considered submissions following detailed research. We also raise them for consideration by, and discussion amongst, the Tribunal’s users and the various professional bodies involved. No doubt there will be other matters to consider which we have not identified.
However, one thing is certainly clear. Whatever approach this Tribunal decides to adopt on the issues raised by Factortame, it remains 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 (and in sufficient detail) to the Tribunal and any other party to the proceedings from the very outset of their involvement in the case. The Tribunal will treat such a failure as a serious matter.”
In the Gardiner and Theobald case, the expert engaged by G&T had not disclosed to the Valuation Tribunal that whist he was not charging on a contingent basis for his expert witness role before the VTE, his firm would still benefit from success-related fees flowing from his previous work.
The judgment is pretty scathing in its terms. Nor was the expert able to hide behind any argument that it was all the fault of his firm’s standard terms of engagement:
“This aspect was not investigated during the hearing and so we make no finding about it. No doubt many surveyors and other experts, particularly those in larger practices, will operate on an assumption that standard form conditions will have been drafted by the practice so as to comply with the requirements of the tribunals before whom they appear and of the professional bodies to which they belong. In practice, an individual expert may not consider questioning the content of the standard conditions which are regularly used by the firm for which he or she works. But that cannot override or detract from the obligations which each individual expert personally owes, not only to the relevant tribunal or court, but also under any professional code of conduct. All these considerations only serve to emphasise the importance of a practice ensuring that its standard terms of engagement are drafted with care and clarity so that they do indeed comply with those obligations. Furthermore, individual experts must ensure that any specific terms agreed for individual cases, whether varying or supplementing the standard conditions of a practice, also meet the same requirements.”
Holgate J restates the principles that apply to expert witnesses, as set down in the Ikarian Reefer case:
“The expert’s duty to help the Tribunal, which overrides any obligation to the client (rule 17(1) of the 2010 Rules), connotes an obligation to act independently and without bias. The obligation is so similar to that in CPR 35.3 that it is helpful to refer to the related commentary in “Civil Procedure” (2018). Because this obligation is fundamental to the duty of an expert giving evidence in the Tribunal, it is appropriate to set out certain of the key principles summarised in the “Ikarian Reefer”  2 Lloyd’s Rep 455: –
“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 (Whitehouse v. Jordan  1 WLR 246at p. 256, per Lord Wilberforce).
2. An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his expertise (seePolivitte Ltd. v. Commercial Union Assurance Co. plc  1 Lloyd’s Rep. 379 at p. 386 per Garland J and Re J  FCR 193 per Cazalet J). 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 (Re J supra).
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 (Re J supra). 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 (Derby & Co. Ltd. v Weldon The Times 9 November 1990 per Staughton LJ).
6. If, after exchange of reports, an expert witness changes his view on a material matter 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.”
Holgate J stresses the importance of the statement of truth (which I will come back to):
“Any notion that, by way of example, the inclusion and signing of an expert’s declarations in his or her report is a mere formality, or something which may be dealt with perfunctorily, needs to be completely dispelled.”
So how does all of this apply to planning inquiries?
It seems to me that the position for chartered surveyors as expert witnesses is clear, in the light of RICS Practice Statement and Guidance Note: Surveyors acting as expert witnesses. The practice statement sets out the tribunals to which it applies, which includes evidence given to “inspectors, commissioners and reporters (for example, in planning proceedings, including inquiries, hearings, examinations in public – independent panels; independent examination and proceedings of the Infrastructure Planning Commission, and Planning and Water Appeals Commissions).”
As quoted by Holgate J, the practice statement deals with conditional fees in the following terms:
“10.1 You should not undertake expert witness appointment on any form of conditional or other success-based arrangement including where those instructing you are engaged on such a basis.
10.2 It is inappropriate to be remunerated by way of a conditional fee arrangement when acting as an expert witness but it may be an appropriate fee basis when acting as an advocate. When acting in a dual role as an expert witness and advocate, where permitted in lower tribunals, a conditional fee arrangement may be acceptable because it will be seen as attached to the role of advocate. Such a dual role improves access to justice by reducing costs and therefore a conditional fee payment can be supported in these limited and strict circumstances.
10.3 When acting in a dual role and where a conditional fee arrangement has been agreed, this must be declared to the tribunal.
10.4 It is unlikely that a dual role will be permitted in higher tribunal formats and consequently previously agreed conditional fees when the surveyor has appeared in a lower tribunal will, at the point of transferring to the superior or higher tribunal, need to be commuted and replaced by an hourly rate or fixed fee arrangement.”
The statement of truth that is required by the RICS to be included in expert reports includes: “I confirm that I am not instructed under any conditional or other success-based fee arrangement.”
It is interesting to note that the Planning Inspectorate’s Planning Appeals Procedural Guide does not include any advice on the question of success-related fees and the recommended wording, within Annex O, for the statement of truth, is simply:
“The evidence which I have prepared and provide for this appeal reference APP/xxx (in this proof of evidence, written statement or report) is true [and has been prepared and is given in accordance with the guidance of my professional institution] and I confirm that the opinions expressed are my true and professional opinions.”
As it happens, the RTPI recently updated guidance for its members, Practice Guidance September 2018, Planners as expert witnesses, but again there is nothing explicit on the question of success-related fees (although there is useful advice on, for example, the issues arising where evidence is given on behalf of the witness’s employer or, in the case of local authority planners, in support of a decision by councillors in the face of officers’ recommendations). Perhaps it will be said that it is implicit in one of the RTPI’s core principles: “Members must not make or subscribe to any statements or reports which are contrary to their own bona fide professional opinions, nor knowingly enter into any contract or agreement which requires them to do so.” But surely, particularly following that invitation from Holgate J to professional bodies, consideration should now be given to a much clearer statement? After all, situations inevitably arise where, even though the expert has no direct success-related fee arrangement, further work and fees will inevitably arise from a particular outcome, and where is the dividing line to be drawn?
So, I conclude, tentatively (do put me right, please) as follows:
There is no specific legal authority to support any proposition that expert evidence to a planning inquiry is inadmissible if the expert (or his or her firm) stands to gain in some way from a specific outcome from the proceedings. However, RICS members are subject to an express prohibition; members of other professional organisations may be under implied restrictions, and at the very least the decision maker is in any event liable to place significantly less weight on evidence which is given on a success-related fee basis – and such a basis should certainly be disclosed.
Simon Ricketts, 20 October 2018
Personal views, et cetera