Over the last few days I have been reviewing dusty legal documents with a view to understanding how the legal process works at the Uk Land tribunal. Heavy going for sure, lightened somewhat by the comments made by the preceding officer in some of these cases. We are used to the acerbic comments make by TVs Judge Judy and Judge Rinder but these are for real and delivered in written case reports.
This court room is not a place to be unprepared, unconvincing or out of compliance with previous court directions.
Insufficient detailed report Smack down - A J Trott FRICS in LP-10-2013
Mr Huntington-Whiteley approached the exercise as an open market transaction based
upon a residual valuation. But no third party would take such an approach because it ignored
the fact that the freehold reversion was subject to Mr Barnard’s leases. Mr Huntington-
Whiteley’s starting point was fatally flawed.
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Mr Huntington-Whiteley was instructed shortly before the hearing and his expert report was apparently prepared without full knowledge of the history and tenure of the application land. He had no knowledge of the region let alone the locality of the application land; identified no comparables; made sweeping, unsupported assumptions; applied “reverse indexation” for an extended and inappropriate period of 25 years by an unidentified index; and based his analysis on a hypothetical open market transaction rather the context of the actual freehold transfer in 1989. I am bound to say that Mr Huntington-Whiteley’s report seemed hurriedly prepared. It lacked the care and attention to detail that the Tribunal expects and requires of those who appear as experts before it. I found it to be wholly unconvincing and I give it no weight.
Value or no value smack down. A J Trott FRICS in LP-3-2011
To suggest that by impeding the proposed development, part of which, at most, will be 6m closer to the chapel haugh and will have one extra window overlooking it, the covenants would secure to the objector practical benefits of substantial value or advantage is, frankly, absurd. Mr Orde’s evidence on the point was confused. He began by saying that any practical benefits were not substantial but then decided that their cumulative effect was “much more significant” than any individual benefit. By the end of his cross-examination it appeared that he had decided after all that the cumulative effect of the practical benefits was substantial. I did not find his evidence on this issue to be helpful or objective.
Surveyor doing lawyers stuff smack down. A J Trott FRICS in LP-29-2016
It is usual in cases before the Tribunal for valuation experts to be guided on legal issues by either the party’s solicitor or by counsel. In this application all the parties were litigants in person and none of them had any legal representation. In those circumstances it is particularly important that a valuation expert does not err by inadvertently straying outside the area of his expertise and basing his evidence on an incomplete and inaccurate knowledge and understanding of the law.
Not ready to proceed on time smack down - A J Trott FRICS in ACQ-452-2009
The parties should comply with the directions of the Tribunal. Failure to do so will not be accepted as a reason for delay. By now the experts should have met to discuss their expert reports and statements of agreed facts in the light of the Tribunal’s interim decision. They should have filed and exchanged any supplemental expert reports. If no such reports are filed then the Tribunal will proceed with the evidence already before it.
When is evidence not evidence ? Who's telling porkies supported by paid "experts" -
Mr Horton suggested to Ms Ewing in cross-examination that nobody paid more tax than they had to and that it was reasonable to infer that the claimants’ tax returns represented a realistic floor for the profits made by HCLG. Ms Ewing accepted the point in principle but said that although she was not suggesting the claimants’ accounts and tax returns had been fabricated, they were inaccurate, unreliable and unexplained. Mr Nedas sought to address this issue and to corroborate the tax returns by checking them with HMRC but the claimants did not instruct him to do so directly and no contact with HMRC was made by either Mr Thompson or Mr Newton. The expert evidence has therefore thrown no further light on the matter and has not altered the conclusions that I reached in my interim decision. In effect, given that the submitted accounts are not a reliable starting point upon which to base expert accountancy evidence (interim decision paragraph 174) and the tax returns are not a reliable source of information (interim decision paragraph 195), I am being asked to make an arbitrary award in the absence of good evidence.
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In the absence of any reliable accountancy or other evidence proving loss I make no award for the loss of profits of HCLG.
I agree with Mr Fraser’s conclusion that:
“Even the most cursory sense check would have suggested that the figures were nonsense. The fact that [Mr Day] was prepared to advance such figures (without any evidence to support them) seriously undermined his evidence.”
“Even the most cursory sense check would have suggested that the figures were nonsense. The fact that [Mr Day] was prepared to advance such figures (without any evidence to support them) seriously undermined his evidence.”
In my opinion Mr Huitson’s valuation report did not demonstrate the standard of expertise or competence that I would expect of a Chartered Surveyor when giving evidence before the Tribunal.
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This claim has taken up a disproportionate amount of the Tribunal’s resources. It should have been obvious that many of the claimants’ heads of claim were grossly exaggerated and were simply unsupported by the evidence. Nobody on the claimants’ team seems to have stood back and asked themselves whether what was being claimed was remotely realistic. The claimants’ experts accepted much of what they were told by the claimants far too readily and at times failed to exercise the type of meaningful critical and objective judgment that the Tribunal reasonably expects of an independent expert witness. It is not sufficient simply to rely on what the claimants told them; an expert should not be the puppet of their client but should act in a way commensurate with the duties set out in rule 17(1) of the Tribunal’s Procedure Rules 2010:
“It is the duty of an expert to help the Tribunal on matters within the expert’s expertise and this duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.”
I have highlighted the most egregious examples of the experts’ failure to meet this duty throughout this decision.
166. It is disappointing that so much time had to be spent by Mr Fraser in cross-examination that would have been unnecessary had the experts exercised a modicum of common sense by not pursuing the exaggerated figures to which they were led by the claimants. The belated result was the welcome (and sensible) recognition by Mr Horton in his closing submissions that many elements of the claimants’ case were not sustainable on the evidence and had to be conceded.
167. I appreciate the strength of emotion and anxiety that is felt by those whose land is compulsorily acquired. It is often an unpleasant and difficult experience. But that is not a reason for claimants to assume they have carte blanche to exaggerate their claim to an absurd degree while no doubt expecting that the acquiring authority will compromise, at least a little, in their favour. In this reference the acquiring authority clearly considered that they were being duped by the claimants and were rightly determined to protect the public purse. They are vindicated in their action by this decision.
“It is the duty of an expert to help the Tribunal on matters within the expert’s expertise and this duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.”
I have highlighted the most egregious examples of the experts’ failure to meet this duty throughout this decision.
166. It is disappointing that so much time had to be spent by Mr Fraser in cross-examination that would have been unnecessary had the experts exercised a modicum of common sense by not pursuing the exaggerated figures to which they were led by the claimants. The belated result was the welcome (and sensible) recognition by Mr Horton in his closing submissions that many elements of the claimants’ case were not sustainable on the evidence and had to be conceded.
167. I appreciate the strength of emotion and anxiety that is felt by those whose land is compulsorily acquired. It is often an unpleasant and difficult experience. But that is not a reason for claimants to assume they have carte blanche to exaggerate their claim to an absurd degree while no doubt expecting that the acquiring authority will compromise, at least a little, in their favour. In this reference the acquiring authority clearly considered that they were being duped by the claimants and were rightly determined to protect the public purse. They are vindicated in their action by this decision.
Take a bow your honour Andrew James Trott FRICS
Post in the comments below if you find any more of these Judicial smack downs aka Judges Hammertime.
