Practice note 1: The expert’s report and other exhibits

The Valuation Office Agency`s technical manual covering all aspects of compulsory purchase and compensation.

Form and content of expert’s report

Paragraph 8.2 of the Tribunal’s Practice Directions (see Appendix 17/2) sets out certain requirements in relation to the form and content of the expert’s report.  These are:

1) An expert’s report should be addressed to the Tribunal and not to the party from whom the expert has received instructions. It must:

• (a) give details of the expert’s qualifications
• (b) give details of any literature or other material on which the expert has relied in making the report
• (c) say who carried out any inspection or investigations which the expert has used for the report and whether or not the investigations have been carried out under the expert’s supervision
• (d) give the qualifications of the person who carried out any such inspection or investigations; and
• (e) where there is a range of opinion on the matters dealt with in the report
• i) summarise the range of opinion, and
• ii) give reasons for his or her own opinion
• (f) contain a summary of the conclusions reached
• (g) contain a statement setting out the substance of all material instructions (whether written or oral). The statement should summarise the facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based

2) The instructions referred to in sub-paragraph 1(g) above will not be privileged against disclosure but the Tribunal will not, in relation to those instructions order disclosure of any specific document or permit any questioning in the Tribunal, other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under sub-paragraph 1(g) to be inaccurate or incomplete.  The number of the reference which constitutes the title to the proceedings must be stated on all exhibits.  The valuer’s office file reference should not be quoted.

Generally the report should be typed on A4 paper, paged and paragraph numbered and double line spaced, bound if possible.  Exhibits should be bound separately from the report.

Every exhibit, including plans, maps, photographs or other documents, should be identified by a reference eg DV/1, DV/2, etc.  Elaborate references, eg incorporating the valuer's initials or unnecessary sub-divisions, should be avoided.

Where the exhibit is large and has to be folded the reference should be placed in a position (if necessary by repeating it on the back) so that it can be clearly seen whether the exhibit is folded or opened.

If the exhibits are to be handed in at the commencement of the valuer’s evidence, they should not be stapled or pinned together but preferably they should be bound in one volume.

Typed documents such as valuations and schedules of comparable properties should not be prepared in a cramped format and double lined spacing is preferred.  Spacious columns and layout avoid confusion at the hearing and enable the evidence of the valuer to be followed more readily by counsel and the Tribunal.  The valuer should show measurements in metric terms.  However should the claimant or the claimant's expert witness quote evidence in terms of measurement different from the valuer it may be necessary to quote measurements in both metric and imperial terms.

If the valuer has doubts whether or not any document would be admissible as evidence the valuer should consult and follow the advice of the legal adviser to the acquiring authority.

The number of copies required will depend upon the circumstances and if necessary guidance should be sought of the acquiring authority’s legal adviser.  All copies must be legible.  Provided that the witness who will be giving the evidence to which the documents and exhibits relate is clearly identifiable eg by references DV/1 etc and the headings to the documents, it is not normally necessary for the witness to sign any of the documents other than the valuation.

The valuation should be prepared and signed by the expert witness.  If the heads of claim are admissible in law advantage often lies in valuations being presented in the same order as the claim so that the Tribunal may clearly see the answer to each head of claim.

Schedules of comparable properties

Adequate particulars must be provided to enable the Tribunal and the other party to identify the property.  Each property in the schedule should have a reference number which enables it to be readily identified on a location map.  It might be desirable to distinguish market transactions from settlements by a simple colour code.

Plans showing the internal layout of buildings should be provided and cross-referenced to the schedule.

In appropriate cases it is useful to show the property which is the subject of the reference as the first item of the schedule with the valuation analysed in the same way as the other transactions to enable comparison to be made readily.

Maps and plans

Each plan, map or line drawing, whether prepared by the valuer or the authority should be checked by the witness on the land.  The plan, map or drawing should be to an appropriate scale which should be clearly stated.  The north point, properly located and orientated, should also be shown.

The size of the map or plan should be appropriate for its purposes; overlarge plans should be avoided where practicable.

Photographs

A short description and the date and time it was taken should be written on the back of every photograph.  Similar details should be shown on the face of the photograph by means of a gummed label if this can be done without obscuring any relevant part of the photograph.  The viewpoint of the photograph should be indicated on a map by reference to its number and its direction shown by an arrow.

Photographs are not normally required by the Tribunal to be formally proved, nevertheless the photographer should be made aware that, exceptionally, the photographer may be required to attend the hearing to prove the photographs.

Agreement of facts

The Upper Tribunal places emphasis on the need for experts to agree as many facts concerning the case as possible.

Paragraph 8.1 of the Practice Directions of the Upper Tribunal (Lands Chamber) provides that where more than one party is intending to call expert evidence in the same field, the experts must take steps before preparing or exchanging their reports to agree all matters of fact relevant to their reports, including the facts relating to any comparable transaction on which they propose to rely, any differences of fact, and any plans, documents or photographs on which they intend to rely in their reports.

Also Paragraph 8.4 of the Practice Directions provides that after the exchange of the experts’ reports, and again if rebuttal reports are exchanged, the experts of like discipline should usually meet and, where the Tribunal so directs must meet, in order to reach further agreement as to facts; to agree any relevant plans, photographs etc; to identify the issues in the proceedings; and where possible, to reach agreement on an issue. The Tribunal may specify the issues which the experts must discuss. The Tribunal may also direct that following a discussion between the experts the parties must prepare a statement for the Tribunal showing those facts and issues on which the experts agree and those facts and issues on which they disagree and a summary of their reasons for disagreeing. The Tribunal will usually regard failure to co-operate in reaching agreement as to the facts and issues as incompatible with the expert’s duty to the Tribunal and may reflect this in any order on costs that it may make.

The contents of the discussions between the experts are not to be referred to at the hearing unless the parties agree. Where experts reach agreement on an issue during their discussions, the agreement will not bind the parties unless the parties expressly agree to be bound by the agreement.

Valuation

The valuation exhibit should state the statutory basis of compensation and the relevant date.  It should show details of the interest to be valued, any apportionment of rent, and all heads of claim.  Any agreement between the parties as to works of reinstatement to be undertaken by the authority should be handed to the UT(LC) and the valuation exhibit should include a statement that the estimate of compensation is based on the undertaking.

Failing agreement the estimate of compensation should include the cost of such reinstatement works as are necessary, and the surveyor to the authority should be available if necessary to give evidence thereon.

Copyright

The VOA is permitted, under section 50 Copyright Designs and Patents Act 1988, to copy material that is subject to copyright when it is necessary for the performance of our statutory functions (which include the valuations undertaken by Property Services under section 10 Commissioners for Revenue and Customs Act 2005). 

This would include any information that might be subject to copyright such as quotations from textbooks, law reports etc.  This statutory exemption, in relation to an Upper Tribunal reference, would cover release of the copyright information only while the reference was ‘live’ (ie from the date that the reference was made until the final hearing before the Tribunal had been completed).

RICS Guidance

The RICS Practice Statement and Guidance Note ‘Surveyors acting as expert witnesses’ (4th edition) provides useful guidance for surveyors who are to appear as expert witnesses before the Tribunal.

At the end of each expert witness report, the report content must be verified by the mandatory inclusion of a ‘Statement of Truth’ and Declaration.

From the 1st October 2020, the Practice Direction Amendments of the Civil Procedure Rules stipulate that an additional final sentence must be added to the previous wording of the ‘Statement of Truth’.  That extra sentence is: ‘I understand that proceedings for contempt of court may be brought against anyone who makes, 
The RICS notes that the requirements for statements of truth may differ between jurisdictions and tribunals and states that the expert witness should therefore always ascertain what the Practice Directions of the particular jurisdiction and tribunal require.

The RICS advises that the following wording, which is drawn from the latest Civil Procedure Rules (CPR) in Practice Division 35, is endorsed by the RICS, and must (unless a tribunal advises otherwise – see below re the Upper Tribunal (Lands Chamber) be adopted by all chartered surveyors in England & Wales acting in the capacity of an expert witness in a civil case.  The wording reflects the additional final sentence introduced by the the 122nd update Practice Direction Amendments and is as follows:

Statement Of Truth

‘I understand that my overriding duty is to the court and I have complied with that duty. I am aware of the requirements of CPR Part 35, its practice direction and the CJC Guidance for the instruction of experts in civil claims.

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’

However one important instance of a Tribunal advising otherwise arises in the instance of the Practice Directions Upper Tribunal (Lands Chamber) which were reviewed and updated on 19 October 2020.  This is the Tribunal to which DVS Expert Witnesses will often be submitting their expert witness reports.

For all Expert Witness reports to the Upper Tribunal (Lands Chamber), the Practice Directions at para 18.15 require a Statement of Truth in the following terms:

"I believe that the facts stated in this report are true and the opinions expressed are correct. I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer."

The Statement of Truth at the end of the expert witness report must be followed by a series of Declarations as follows:

1) ‘I confirm that my report has drawn attention to all material facts which are relevant and have affected my professional opinion.’

2) ‘I confirm that I understand and have complied with my duty to the [specify the tribunal*] as an expert witness which overrides any duty to those instructing or paying me, that I have given my evidence impartially and objectively, and that I will continue to comply with that duty as required.’ (* The reference used may vary, as appropriate to the particular forum.)

3) ‘I confirm that I am not instructed under any conditional or other success-based fee 
arrangement.’

4) ‘I confirm that I have no conflicts of interest.’

5) ‘I confirm that I am aware of and have complied with the requirements of the rules, 
protocols and directions of the [specify the tribunal]’.

6) ‘I confirm that my report complies with the requirements of RICS - Royal Institution of Chartered Surveyors, as set down in the RICS practice statement Surveyors acting as expert witnesses.’

Note:  Given their bespoke nature and varying Tribunal directions, DVS has never provided an expert witness report template.

Valuers conduct as an expert witness and their report format should follow the Practice Directions of the relevant Tribunal to which they are reporting, which take precedence, and then available RICS guidance.

For England & Wales, that is the RICS combined practice statement and guidance note titled ‘Surveyors Acting as Expert Witnesses’ (4th edition). In that document, PS5 details the mandatory report requirements, with best practice principles and advice being supplied in GN12 and GN13.

Reflecting the separate Scottish legal and court/tribunal system, valuers in Scotland will follow and apply ‘Surveyors acting as expert witnesses in Scotland’ (1st edition).

See 17.45 for further details regarding the Statement Of Truth.