The procedure at the hearing is within the discretion of the presiding Judge or Member but will generally accord with the practice in the High Court (in Scotland the Court of Session) and will normally be as follows:
a. The advocate representing the appellant taxpayer opens. The advocate will indicate the matter in dispute, the facts to prove, the evidence which will be given and the relevant statutory provisions.
b. The advocate representing the appellant will call any expert witnesses and witnesses of fact. Evidence will be taken on oath, and the rules of evidence will be applied.
c. HMRC will be the respondent and their advocate may cross-examine witnesses. Leading questions may be asked in cross-examination
d. At the conclusion of cross-examination the advocate for the appellant or maker of the reference may re-examine the witnesses, each re-examination to be confined to clarification of matters dealt with in cross-examination, and must not introduce new evidence.
e. The respondent’s advocate will then set out the respondent’s case, calling witnesses (e.g. VOA expert) who may similarly be cross-examined and re-examined.
An expert witness is not normally allowed to read from their report in England & Wales, but in Scotland, the report may be read out by the expert. However, the Member will normally have familiarised themselves with its contents prior to the hearing and may order it be taken “as read”. Certainly there is normally no objection, with the consent of the Member, to witnesses refreshing their memory from notes or copies of valuations, schedule of comparables, or the like. Usually the respondent’s advocate will take the witness through his/her report, highlighting any parts, which are considered to be of particular significance. After being called and sworn, the witness will remain standing until invited to sit down by the Member.
Care should be taken that the VOA’s independent professional standing and integrity are not impugned, particularly by over-familiarity with HMRC’s Solicitor or other HMRC officers, and that the witness does not appear to be prejudiced. It must be remembered that the role of an expert witness is to assist the Tribunal in reaching a decision. It is not for the witness to adopt a narrow adversarial viewpoint excluding all possibilities without due consideration, and certainly no element of advocacy should enter into the evidence.
Whilst the VOA expert is “in the box”, i.e. after being called and before being released (including adjournments prior to the completion of giving evidence) the witness must not discuss the evidence with anyone. If HMRC’s Solicitor needs advice while the VOA expert is “in the box”, SVT Policy & Professional will normally provide it.
The witness should avoid referring to any parts of VOA Manuals or other instructions that are not in the public domain.
f. Proceedings end with a closing statement by the advocates for both parties.