Section 17: References to the Upper Tribunal (Lands Chamber)

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

The Upper Tribunal (Lands Chamber)

17.1 General

The Upper Tribunal (Lands Chamber) is the successor to the Lands Tribunal. It is an independent and specialist judicial body dealing with, among other things, references to determine the amount of compensation payable in cases of compulsory acquisition or compensation for injurious affection in claims under Part I LCA 1973 or section 10 CPA 1965. The Upper Tribunal (Lands Chamber) is now part of the Courts and Tribunal Service. The Tribunal consists of a President and such number of members as the Lord Chancellor may determine, being Barristers-at-Law, Solicitors and Surveyors.

Procedure in the Upper Tribunal (Lands Chamber) is governed by the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (SI 2010 No 2600) (as amended by SI 2012 No 500, SI 2013 No 1188 and SI 2014 No 514). The most recent version is the Consolidated version which came into effect from 21 July 2020. There are some significant procedural changes in these new rules. There are strict time limits and Upper Tribunal (Lands Chamber) cases must be actively managed. Cases will require a high standard of professional input. A copy of the Upper Tribunal (Lands Chamber) Rules, as amended, is shown at Appendix 17/1. Much useful information regarding the procedure and practice of the Upper Tribunal (Lands Chamber) can be gained from the Practice Directions of the Lands Chamber of the Upper Tribunal. These Practice Directions amplify and explain the Upper Tribunal (Lands Chamber) Rules. A copy of the Practice Directions is shown at Appendix 17/2.

References in this Section of the Land Compensation Manual to ‘acquiring authority’ should be read as ‘compensating authority’ in cases relating to Part I Land Compensation Act 1973 or section 10 Compulsory Purchase Act 1965. Similarly references to the ‘claimant’ should be read as ‘acquiring (or compensating) authority’ where the latter, and not the claimant, has made the reference to the Upper Tribunal (Lands Chamber).

17.2 The Civil Procedure Rules

The Civil Procedure Rules do not apply to the Upper Tribunal (Lands Chamber) but the Tribunal nevertheless follows the same overriding objective of dealing with cases justly. The Tribunal thus tries to:

1. (a) ensure that the parties are on an equal footing
2. (b) save expense
3. (c) deal with the case proportionately in relation to
   1. (i) the amount of the claim
   2. (ii) the importance of the case
   3. (iii) the complexity of the issues
   4. (iv) the financial position of the parties
4. (d) deal with the case expeditiously and fairly
5. (e) allot an appropriate share of the Tribunal’s resources to the case

The Tribunal expects the parties to assist in furthering these objectives.

17.3 The Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules

Consolidated version as in effect from 21 July 2020

The provisions applicable to references to the Tribunal in cases of compensation payable in relation to the compulsory purchase of land are as follows:

Part 1: Introduction

1. 1. Citation, commencement, application and interpretation (p3)

2. 2. Overriding objective and parties’ obligation to co-operate with the Tribunal (p4)

3. 3. Alternative dispute resolution and arbitration (p4)

4. Part 2: General powers and provisions

5. 4. Delegation to staff (p4)

6. 5. Case management powers (p5)

7. 6. Procedure for applying for and giving directions (p5)

8. 7. Failure to comply with rules and such (p6)

9. 8. Striking out a party’s case (p6)

10. 9. Addition, substitution and removal of parties (p7)

11. 10. Orders for costs (p7)

12. 11. Representatives (p9)

13. 12. Calculating time (p9)

14. 13. Sending and delivery of documents (p9)

15. 14. Waiver or alternative method of service (p10)

16. 15. Use of documents and information (p10)

17. 16. Evidence and submissions (p10)

18. 17. Expert evidence (p11)

19. 18. Summoning of witnesses and orders to answer questions or produce documents (p11)

20. 19. Site inspections (p11)

21. 20. Withdrawal (p12)

22. Part 3 – Applications for permission to appeal

23. 21. Application to the Tribunal for permission to appeal (p12)

24. 22. Respondent’s representations in relation to permission to appeal (p13)

25. 23. Decision in relation to permission to appeal (p13)

26. Part 4 – Appeals

27. 24. Notice of appeal (p14)

28. 25. Respondent’s notice (p15)

29. 26. Appellant’s reply (p15)

30. Part 5: References

31. 26a. Interpretation (p15)

32. 27. Application of Part 5 (p15)

33. 28. Notice of reference (p16)

34. 29. Response to Notice of Reference (p17)

35. 30. References by consent: application of the Arbitration Act 1996 (p18)

36. Part 9: Hearings

37. 46. Decision with or without a hearing (p22)

38. 47. Notice of hearings (p22)

39. 48. Public and private hearings (p23)

40. 49. Hearings in a party’s absence (p24)

41. Part 10: Decisions

42. 50. Consent orders (p24)

43. 51. Decisions (p24)

44. 51A Interest (p24)

45. Part 11: Correcting, setting aside, reviewing and appealing decisions of the Tribunal

46. 52. Interpretation (p25)

47. 53. Clerical mistakes and accidental slips or omissions (p25)

48. 54. Setting aside a decision which disposes of proceedings (p25)

49. 55. Application for permission to appeal (p25)

50. 56. Tribunal’s consideration of application for permission to appeal (p26)

51. 57. Review of a decision (p26)

52. 58. Power to treat an application as a different type of application (p27)

17.4 Case management powers

The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

In particular, the Tribunal may:

1. (a) extend or shorten the time for complying with any rule or practice direction and order an extension even if the application for an extension is not made until after the time limit has expired

2. (b) consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case

3. (c) permit or require a party to amend a document

4. (d) permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party

5. (e) deal with an issue in the proceedings as a separate or preliminary issue

6. (f) hold a hearing to consider any matter, including a case management issue

7. (g) decide the form of any hearing

8. (h) adjourn or postpone a hearing

9. (i) require a party to produce a bundle for a hearing

10. (j) stay proceedings

11. (k) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and

    1. (i) because of a change of circumstances since the proceedings were started, the Tribunal no longer has jurisdiction in relation to the proceedings; or

    2. (ii) the Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case

12. (l) suspend the effect of its own decision pending an appeal or review of that decision

13. (m) in an appeal, or an application for permission to appeal, against the decision of another tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal; or

14. (n) require any person, body or other tribunal whose decision is the subject of proceedings before the Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal

The Tribunal or the Registrar may therefore direct that a case management meeting be held. At the meeting the Tribunal or the Registrar would be likely to

(a) give any direction that appears necessary or desirable for securing the just, expeditious and economical disposal of the proceedings; and

(b) endeavour to secure that the parties make all such admissions and agreements as ought reasonably to be made by them in relation to the proceedings;

(c) record on the direction made following the review any such admission or agreement or any refusal to make the same.

The direction made by the Tribunal or Registrar would set out a timetable for the progress of the case giving dates for the fulfilling of certain events for example the submission of a Statement of Case (if not already submitted) and the exchange of Experts’ Reports.

When filing a Notice of Reference under Rule 28, a party should state whether they want the case to be determined without an oral hearing. At any time a Registrar or the Judge or Member to whom a case has been allocated for case management may direct that it should be assigned to one of the other procedures.

The Tribunal or Registrar will assign the case to one of four procedures:

• the standard procedure
• the simplified procedure
• the special procedure
• the written representations procedure

17.5 The Standard Procedure

The Registrar will manage these cases and will give whatever directions are required for their expeditious resolution. The Registrar will hold a case management hearing as soon as possible and give directions as to a timetable up to the hearing of the case and may direct that the case be heard under the Simplified or Written Representations Procedure, but taking into account the views of the parties.

17.6 The Simplified Procedure

The assignment of cases to the Simplified Procedure would be appropriate where there were no substantial issue of law or valuation practice at stake or where the amount of compensation claimed was small. The procedure is initiated by the Member or Registrar and adopted with the consent of the claimant. A party could apply for a direction that the case be heard by a different procedure under Rule 6.

In most cases a date for the hearing will be fixed for about three months ahead. Not later than one month before the hearing the parties must exchange copies of all documents on which they intend to rely and experts’ reports must be exchanged and filed not later than 14 days before the hearing. The hearing is informal and strict rules of evidence do not apply. The hearing will usually be completed in one day. Costs are only awarded in exceptional cases although in compensation cases the statutory provisions regarding costs in section 4 Land Compensation Act 1961 will apply.

Should the valuer become aware of the making of a direction, or an intention to make an application, under the Simplified Procedure, the preparation of the case should be expedited in view of the strict procedural time limits.

17.7 The Special Procedure

If a case were particularly complex, large or of wider importance, it will be assigned to the Special Procedure where a Member of the Tribunal will manage the case. The Tribunal Member will hold an early case management hearing to fix a date for the hearing, review the evidence and identify the expert evidence that each party will rely on. The case management hearing also gives the parties an opportunity to identify and make an application for any order they wish the Tribunal to make for example determination of a preliminary issue (Rule 5(3)(e)) or leave to call more than the permitted number of expert witnesses (Rule 17).

Not less than seven days before a case-management hearing the parties must file an agreed position statement summarising the subject-matter of the case and, to the extent that it is possible to do so at that stage, the issues. They must also state the areas of expertise of each expert witness that they propose to rely on and the general scope of their evidence.

17.8 The Written Representations Procedure

The Tribunal may, usually with the consent of the parties to the proceedings, order that the case be determined without an oral hearing. The Tribunal will order this only if it is satisfied that, having regard to the issues in the case and the desirability of minimising costs, oral evidence and argument can properly be dispensed with. Directions will be given to the parties as to the filing of representations and documents, and the Tribunal Member will if necessary undertake a site visit before giving a written decision.

Should the valuer become aware of the making of an order, or an intention to make an application, under the Written Representation Procedure, the preparation of the case should be expedited in view of the strict procedural time limits.

Costs will only be awarded if there has been an unreasonable failure on the part of the claimant to accept an offer to settle, if either party has behaved otherwise unreasonably, or the circumstances are in some other respect exceptional.

17.9 Alternative Dispute Resolution

Under Rule 3 the Tribunal should seek, where appropriate

(a) to bring to the attention of the parties the availability of any appropriate alternative procedure for the resolution of the dispute; and

(b) if the parties wish and provided that it is compatible with the overriding objective, to facilitate the use of the procedure.

The authority should be able to demonstrate that the other party to the case has been invited to resolve the dispute by alternative dispute resolution. This might be relevant to the assessment of costs at a later date.

17.10 Stay of proceedings

There is no specific provision in the Rules for an ‘extension of time’ to any time limit.

Parties may apply at any time for a short stay in the proceedings to attempt to resolve their differences, in whole or in part, outside the Tribunal process. No fee is payable. On receipt of a joint or consent application made in accordance with Rule 6 the Tribunal will by order stay proceedings for a six week period (or such other period as may be specified in the order) for mediation or other form of alternative dispute resolution (ADR) procedure to be followed.

The parties may apply for a second or longer stay in the proceedings for ADR but in this case a fee for an interlocutory application must be paid and the parties must satisfy the Tribunal that an additional or longer stay of proceedings would be appropriate. Where both parties to a reference indicate that they wish the proceedings to be delayed, either to allow negotiations for a settlement to take place or to allow an ADR procedure to be followed, the Tribunal will normally grant a stay of four weeks. If a longer stay were requested, the parties would need to satisfy the Tribunal that the particular circumstances of the case warranted it.

17.11 Flexibility

The valuer must be prepared to be flexible and to comply with any reasonable direction of the Tribunal. For example in Ghrist v Blaenau Gwent CBC (2005) REF LCA/43/2004 following a preliminary hearing, the claimant informed the Tribunal that he did not intend to appear at the scheduled formal hearing and the Tribunal then directed that the case should proceed by written representations.

Valuer’s Services

17.12 Expert witness

The valuer is authorised to give evidence in proceedings before the UT(LC) in support of valuations previously furnished to government departments, local authorities or other public bodies in accordance with existing instructions.

This authorisation extends to cases where a blight notice has been served under T&CPA 1990 and the appropriate authority has served a counter-notice on the grounds that the price obtainable is not substantially lower than that which could have been obtained if the proposals affecting the property had not been made.

Should the valuer receive a request to appear as an expert witness in a case for which the valuer is not authorised to give valuation advice by existing instructions (eg cases under the Leasehold Reform Act 1967) the request should be referred to the PS Professional Guidance Team for instructions before proceeding.

The Team Leader and the valuer should approve the appointment of the valuer nominated to be an expert witness in any proceedings before the UT(LC). In this connection it should be borne in mind that the expectation of the UT(LC) that the evidence should be given by the best available experienced expert witness should be consistent with the proper use of resources and the need to afford the opportunity to valuers to gain experience, particularly where the reference is straightforward and without complexity of valuation or principle of compensation.

Should the valuer receive a subpoena to give official evidence in legal proceedings, the request should be forwarded the PS Professional Guidance team.

The valuer however, is able to appear in legal proceedings without subpoena in the following instances:

(i) where authorised by instructions to give valuation advice to an authority and subsequently requested to appear as expert witness concerning that matter.

(ii) where the valuer acted for an authority in a case and is subsequently required to appear as a witness of fact.

Valuers may also be called upon to give evidence at Public Inquiries in certain circumstances.

The valuer should, when acting as an expert witness, follow the guidance in the RICS Practice Statement and Guidance Note ‘Surveyors Acting as Expert Witnesses’ (4th Edition 2014).

17.13 Insufficient notice of hearing

Where insufficient notice is given by the acquiring authority to enable the valuer properly to prepare the case to be laid before the UT(LC) and the valuer has not been able to make satisfactory revised arrangements, full particulars should be sent to the PS Professional Guidance Team so that consideration may be given, if a stay of proceedings cannot be obtained, to notifying the authority that the valuer’s services cannot be made available.

An application for a stay of proceedings would need to be made by the acquiring authority as an application for a direction by the Tribunal under Rule 6.

17.14 Additional expert witnesses

Section 2 LCA 1961 limits the number of expert witnesses before the UT(LC) (unless the UT(LC) directs to the contrary) to one on each side, except where the compensation claim relates to minerals or disturbance of a business as well as in respect of land, where one additional witness on either side on the value of minerals or, as the case may be, the loss suffered by reason of the disturbance, is allowed.

An application for leave to call more than one, or more than one additional expert witness may be made to the Registrar in accordance with Rule 16 or to the UT(LC) at the hearing. If the application is made to the UT(LC) at the hearing and is granted the UT(LC) shall, unless it is satisfied that no prejudice to any other party will arise, adjourn the hearing on such terms as to costs or otherwise as it thinks fit.

It is the responsibility of the acquiring authority to make application to the registrar when it is proposed to call the MV or other additional expert witness but a reminder should be sent to the authority by the valuer in each specific case as occasion arises.

Initially the valuer is best placed to advise on the necessity for any additional expert witness. The valuer should give full reasons for the need for an additional expert witness to the acquiring authority and where appropriate may offer to assist in the negotiation of the additional expert’s fee.

The earlier in a case that the requirement for the services of an additional expert witness can be identified, the better.

Should the valuer be requested by the authority to advise whether or not to object, under the provisions of Rule 6, to an application made by the claimant to the Tribunal to call an additional expert witness, the concurrence of the PS Professional Guidance team should be obtained before recommending an objection.

Reference to the Upper Tribunal (Lands Chamber)

17.15 Notice of Reference

Initially the claimant or acquiring authority serves a Notice of Reference on the Tribunal under Rule 28.

Where the dispute arises out of the compulsory acquisition of land the Notice of Reference shall not be given before the expiration of one month from the date of the service of the Notice to Treat (or date on which such notice to treat is deemed to have been served) or where no Notice to Treat has been served or is deemed to have been served, from the date of notice of claim.

The Notice of Reference must be signed and dated and must state:

1. (a) the name and address of the person making the reference and, if represented
   1. (i) the name and address of that person’s representative; and
   2. (ii) the professional capacity, if any, in which the person’s representative acts
2. (b) an address where documents for the person making the reference may be sent or delivered
3. (c) the address or description of the land to which the reference relates
4. (d) the name and address of every other person with an interest in the land
5. (e) the nature of the interest in the land of the person making the reference and that of any other person named in the notice
6. (f) the statutory provision under which the reference is made (unless the reference is a reference by consent under section 1(5) of the 1949 Act)
7. (g) if the reference is made by a claimant for compensation or other monetary award, the amount claimed, an explanation of how that amount is calculated and a summary of the reasons for making that claim
8. (h) the matter on which the person making the reference seeks the determination of the Tribunal and a summary of the reasons for seeking that determination; and
9. (i) whether the person making the reference wants the reference to be determined without a hearing

When the Tribunal receives a reference, it must send copies of the notice and the accompanying documents to the persons named in the notice.

17.16 Response to Notice of Reference

Under Rule 29 the Tribunal then serves a copy on the other party who will be required to send a notice of response within one month of receipt of the copy of the reference.

The response to the notice of reference must be signed and dated and must state whether the person making the response intends to take part in the proceedings and, if so, must:

1. (a) state their name and address and, if represented
   1. (i) the name and address of their representative; and
   2. (ii) the professional capacity, if any, in which the representative acts
2. (b) provide an address where documents for the person making the response may be sent or delivered
3. (c) provide a summary of the contentions of the person making the response in relation to the reference
4. (d) if the person making the response is a claimant and the claim is for compensation or a monetary award, the amount claimed, an explanation of how that amount is calculated and a summary of the reasons for making that claim; and
5. (e) whether the person making the response wants the reference to be determined without a hearing

17.17 Statements of Case

After receipt of a response to a notice of reference the Tribunal must direct either:

(a) that the person who made the reference and any person making a response must, within such period as is stated in the direction, send or deliver to the Tribunal and each other party a statement of case that complies with the requirements of any practice direction; or

(b) that the notice of reference and any response to a notice of reference shall stand as the statement of case of the party that gave the notice or made the response.

A Statement of Case should set out the basis of fact and of law on which the party relies. It should be in summary form but contain particulars that are sufficient to tell the other party the case that is being advanced and to enable the Tribunal to identify the issues.

The acquiring authority’s legal advisers would prepare the Statement of Case although the expert witness would normally be consulted and would contribute to its preparation.

17.18 Expert Witness Reports and Witness Statements

Under Rule 16 the Tribunal may give directions as to:

1. (a) issues on which it requires evidence or submission
2. (b) the nature of the evidence or submissions it requires
3. (c) whether the parties are permitted to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence
4. (d) any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally
5. (e) the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given
   1. (i) orally at a hearing; or
   2. (ii) by written submission or witness statement; and
6. (f) the time by which any evidence or submissions are to be provided

Generally the parties will be required to file and exchange their Expert Witness Reports and any Statements of Witnesses of Fact.

The UT(LC) may direct that the experts should be given the opportunity to make supplementary reports following the initial exchange and for these supplementary reports also to be filed and exchanged. A supplementary report would enable the expert witness to comment on the other side’s evidence.

17.19 Date and venue of hearing

The Tribunal will ask the parties to state their availability for possible hearing dates and their preferred venue for the hearing.

The Tribunal will then fix the date and place of the hearing and notify the parties accordingly.

17.20 Reference prompted by valuer

The commencement of proceedings for the determination of a dispute should normally be left to the claimant as the aggrieved party but no obstacle should be placed in the way of an authority that decides to send a Notice of Reference. Only in exceptional circumstances should the valuer prompt an authority to make a reference and consultation with the PS Professional Guidance team would be required first.

To ensure that the valuer is ready to proceed, the valuer should arrange to be consulted before the authority sends the Notice of Reference to the Tribunal and, in appropriate cases, the authority should be advised to retain Counsel before the reference is made. If the valuer were requested by the authority to supply names of suitable Counsel, the PS Professional Guidance team should be consulted.

17.21 Withdrawal of reference

Under Rule 20 a party may give notice of the withdrawal of its case, or any part of it:

(a) by sending or delivering to the Tribunal and all other parties a written notice of withdrawal; or

(b) orally at a hearing.

Notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal except where all the parties to the proceedings have consented.

The acquiring authority may, as a condition of its consent to the withdrawal, require the claimant to pay the authority’s costs incurred in the reference to date.

17.22 Striking out of a party’s case

The Tribunal has wide powers under Rule 8 to strike out a party’s case.

One of the parties to a case could apply to the Tribunal for a direction that the other party’s case be struck out and the Tribunal may make such order as it thinks fit.

The acquiring authority might decide to apply for the other party’s case to be struck out where, for example, the claimant had failed to prosecute the case properly or where the claimant’s contentions were irrelevant to the substance of the case.

Notification of reference

17.23 General

The valuer should make arrangements with clients to be advised immediately that a Notice of Reference is received by them where there is reason to believe that a claimant might make a reference to the UT(LC) and, if made, the valuer would be expected to appear as an expert witness.

17.24 PS Professional Guidance team to be informed

The valuer should inform the PS Professional Guidance team of all references to the UT(LC).

Responsibility for cases

17.25 Responsibility

The valuer (or MV or BAMS valuer as the case may be) is responsible for the accuracy of all valuations and estimates for compensation.

If a particularly important point of principle were at stake in a case in which the PS Professional Guidance team wishes to assist with a view to making sure the VOA interpretation is correctly put to the UT(LC) and properly argued, it may be decided that a representative from the PS Professional Guidance Team should also attend conferences with counsel, generally advise on the presentation of the case and, if thought necessary, attend the hearing. These cases would be exceptional and even if at some stage there has been an intervention by the PS Professional Guidance team, the primary responsibility for the preparation and presentation of the case at the hearing still remains with the valuer.

The PS Professional Guidance team is always available to provide advice to valuers in technical matters, or in procedural matters where the valuer is unsure regarding the advice provided by the acquiring authority.

Hearing

17.26 General

The UT(LC) sits in public, except where it is acting as arbitrator under a reference by consent, at such places as the President may decide. The President selects the member or members to deal with any particular case and may direct that the UT(LC) shall be assisted by assessors.

17.27 Consolidation of references

Where two or more notices of reference have been given in respect of several interests in the same land the UT(LC) may, whether or not an application has been made by any party to the proceedings, direct that the references be heard together.

17.28 Date and place of the hearing

It is open to parties to fix with the UT(LC) a date for the hearing convenient to all. Where it is desired to take advantage of this arrangement the Registrar should be informed as soon as is practicable but not later than seven days after receipt of notification that the case has been entered on the list for hearing.

17.29 Notification

The Registrar will notify the date, time and place of the hearing to the parties as soon as practicable after the commencement of proceedings. Except by agreement, not less than 14 days’ notice of the date and place of the hearing (or of any change thereto) must be given by the Tribunal.

17.30 Postponement

Any party who has received a notice of place, time and date of hearing may apply to the Registrar for an alteration of the place or date. However when, subsequent to listing, a date has been appointed it is the practice of the UT(LC) to allow an application for a stay of proceedings, whether or not by agreement, only in exceptional circumstances.

Record of time spent and other costs in UT(LC) cases

17.31 Case diary record

The valuer (expert witness) should maintain a diary of time spent by all grades and a record of other costs in all UT(LC) cases. The record of time spent would normally be drawn from TRACS.

However, it is unlikely that the TRACS record would provide sufficient detail as to the activities undertaken although it would provide accurate time recording of those activities. The valuer’s costs might be scrutinised in detail if an unsuccessful party were required to pay them. The client might also require details of the valuer’s activities if required to fund the costs.

It is therefore recommended that the valuer keep a separate diary record of all activities undertaken in an Upper Tribunal (Lands Chamber) case from the date of instruction in the reference until the Tribunal has delivered its decision. The separate diary record would be consistent with the TRACS record but would provide fuller details of the activities upon which the valuer had been engaged.

Procedure before hearing

17.32 Copies of correspondence

The valuer should make arrangements with the authority to receive copies of correspondence between the Registrar and the parties and also copies of any relevant correspondence between the authority and the claimant’s representatives. Where the valuation of the valuer is based upon evidence to be given by another witness, eg the planning officer, the valuer should arrange to be shown the relevant parts or, preferably, the complete report of the witness, to safeguard against matters’ being taken out of context.

17.33 Record of condition

In some cases it may be necessary for the valuer to advise the authority to have photographs taken of the property being acquired before the entry is effected or works executed. If practicable, an agreed record of condition should be prepared with the claimant including photographs.

The valuer should, in any event, make his own photographic record of the property as close to the date of entry or valuation as possible.

Unconditional offer

17.34 General

The discretion of the UT(LC) to order that the costs incurred by any party in proceedings be paid by any other party is subject to the special provisions in section 4 LCA 1961 which relates to unconditional offers and the failure to make a proper claim. It is a material point therefore that the UT(LC) should know that an unconditional offer has been made which the claimant could have accepted without the expense of a hearing. Although section 4 might not apply to some references by consent it is considered that the making of an unconditional offer by the authority should be taken into account by the UT(LC) in exercising its discretion in such cases.

The valuer is not authorised to make unconditional offers of compensation since, if accepted, they become binding upon the acquiring authority. Any unconditional offer therefore should be made in writing by the authority, and in the case of a local authority it may not be binding unless the offer or the resolution authorising it bears the seal of the authority.

17.35 Sealed offer

If the dispute proceeds before the UT(LC) and the unconditional offer is not withdrawn, it should become the sealed offer, that is, a copy of the offer is placed in a sealed cover and either sent to the Registrar or handed to the UT(LC) at the hearing, and is opened by the UT(LC) after it has decided the amount of compensation, but before making an order as to costs.

17.36 Timing of unconditional offer

Although the making of an unconditional offer is voluntary, it is desirable that an offer should be made in sufficient time for acceptance before the acquiring authority sends a Notice of Reference to the UT(LC). Such a course is not always practicable as the claimant may, following a final ‘without prejudice’ offer, send a Notice of Reference without informing the valuer of this intention. In such cases the valuer should tender advice to the authority regarding an unconditional offer, both as to the proposal to make an offer and also to the amount thereof, as soon as practicable after the reference becomes known.

The making of an unconditional offer should normally be advised in all cases whether or not the particulars of claim specified in section 4(2) LCA 1961 have been notified in writing. An exception might be where formal particulars of claim have not been supplied and the valuer has been unable to obtain sufficient information during the course of negotiations to enable the authority to make a proper offer covering all heads of claim. The making of an offer under these circumstances might prejudice the operation of the statutory provisions regarding costs, and the valuer should proceed in accordance with the advice of the authority’s legal adviser.

17.37 Amount of unconditional offer

One effect of an unconditional offer is to give prior indication to the claimant of the valuation upon which the evidence of the valuer will be based. The amount of the offer should not normally be materially in excess of the estimate by the valuer otherwise suspicion might be thrown on the evidence the of valuer before the UT(LC), but it should be within the limits of a reasonable difference of opinion.

In the light of such considerations the unconditional offer recommended by the valuer should not normally exceed the estimate of compensation that will be placed before the UT(LC) by more than 15% (apart from normal rounding off). However, where a material part of the compensation is due to injurious affection, trade disturbance and the like, or is payable under section 10 CPA 1965 or Part I LCA 1973, the valuer may decide that an unconditional offer of an amount more than 15% above the estimate might properly be recommended to the authority.

However, the legal adviser to the authority will often take the view that the purpose of making an unconditional offer is the saving of costs in the particular case and not the more general valuation considerations mentioned. The decision on the amount of the offer rests with the authority, and the authority’s legal adviser may well recommend an unconditional offer of an amount outside normal valuation tolerances having regard to any uncertainties in the case and in an effort to save costs.

The valuer’s advice to the authority regarding the amount of the unconditional offer should be in writing. Where an acquiring authority makes an unconditional offer at an amount in excess of that recommended by the valuer, there would be no obligation on the valuer subsequently to ratify the amount of compensation if the unconditional offer were accepted by the claimant.

17.38 Legal costs

Where surveyors’ fees and/or legal costs, other than those payable under section 23 CPA 1965, have been incurred and are compensatable the valuer should state the amounts included in his recommended figure under these heads, or draw the attention of the authority to the need to include a sum to cover such items. The valuer should also remind the authority that the legal costs of conveyance must be paid by the authority in accordance with section 23 CPA 1965.

17.39 Accommodation works

Where accommodation works have been agreed and will either be detailed in the offer or be referred to in the offer by reference to the Schedule of Agreed Facts, the valuer should remember to include in the recommended surveyor’s fee an amount to reflect the requirement for the claimant’s surveyor to ratify or agree the specification and extent of the works and to make an inspection on their completion.

Difficulties may arise where the authority proposes to execute accommodation works that have not been agreed with the claimant. An offer coupled with any condition operative on the claimant may not be regarded by the UT(LC) as an unconditional offer.

17.40 Costs of reference

The valuer’s advice should clearly state that the amount recommended is exclusive of any costs incurred by the claimant in respect of the reference. The valuer should recommend in appropriate cases that any unconditional offer made by the authority should include a statement that such reasonable and necessary costs incurred up to the date of the offer would be paid by the authority.

17.41 Apportionment of rent

Difficulties may also arise where part of the land comprised in a lease is taken and the amount of compensation depends on a rent apportionment that is in dispute. It may be desirable for the authority to make a definite offer subject to the rent’s being apportioned on a stated basis. Whether or not such an offer should go forward as a sealed offer would be a matter for the authority to determine.

17.42 Disclosure of unconditional offer

Where the other side attempts to disclose or succeeds in disclosing the amount of an unconditional offer to the Registrar or UT(LC) before the hearing the authority should be prompted to make a protest immediately and to request the UT(LC) to disregard the information.

In H E Ireland v Stockport MBC (1976) REF/210/1975 (Unreported) the Tribunal member, following the improper disclosure of the sealed offer by claimant’s Counsel at the outset of the case, decided that he could no longer impartially hear the case, adjourned the hearing with costs against the claimant, and set it down for re-hearing by another member on a date to be appointed.

Expert evidence

17.43 Expert Witness Report - general

An Expert Witness Report (formerly termed a Proof of Evidence) forms the basis of the evidence the Tribunal has before it and of what the witness intends to say, and it will be used by the legal adviser as a guide to the questions to be put to the witness in examination-in-chief. The witness may also be cross-examined upon the Report. It is not expected that the expert would be expected to recite the report verbatim at the hearing due to the prior submission and exchange of experts’ reports, but it should contain the whole of the substance of the intended evidence so that the case for the authority can be presented to the UT(LC) logically and comprehensively.

17.44 Form and content of expert’s report

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

1. (a) give details of the expert’s qualifications
2. (b) give details of any literature or other material on which the expert has relied in making the report
3. (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
4. (d) give the qualifications of the person who carried out any such inspection or investigations; and
5. (e) where there is a range of opinion on the matters dealt with in the report
   1. i) summarise the range of opinion, and
   2. ii) give reasons for his or her own opinion
6. (f) contain a summary of the conclusions reached
7. (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.

It would also be appropriate for the valuer to comment briefly upon points of principle or valuation within the claimant’s case (where known) where they conflict with the valuer’s case.

17.45 Statement of Truth and Declaration

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.

The recently published 122nd update 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, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’

The new wording reflects the emphasis placed by the Courts on the seriousness with which they will view any false statements contained in a written report, following the case of Liverpool Victoria Insurance Co.Ltd v Zafar [2019] EWCA Civ 392, in which the Court of Appeal set out guidance for judges in how to deal with contempt of court actions against expert witnesses. Dr Zafar had included information in his report at the request of his instructing solicitors; the information directly contradicted his actual findings on examination of the claimant and contained an opinion on prognosis, suggested by the solicitor, which was not his own. The court found that he had, at the very least, been reckless about the truthfulness of the information, if not dishonest, in including it in his report. As such, he was “in contempt of court” and liable for punishment by the court, either by way of a fine or by way of imprisonment.

The amendment came into force on 1st October 2020.

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:

‘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.”

Valuers will be aware that it is often the Upper Tribunal (Lands Chamber) that they are dealing with as that Tribunal is responsible for:

a) handling appeals against decisions made by:

• First-tier Tribunal (Property Chamber)
• Residential Property Tribunal in Wales
• Leasehold Valuation Tribunal in Wales

b) handling applications for cases about:

• a decision about rates made by the Valuation Tribunal in England or Wales
• compensation for the compulsory purchase of land
• discharge or modification of land affected by a ‘restrictive covenant’
• compensation for the effect on land affected by public works
• a tree preservation order
• compensation for damage to land damaged by subsidence from mining
• the valuation of land or buildings for Capital Gains Tax or Inheritance Tax purposes
• a ‘right to light’ dispute
• compensation for blighted land
• Electronic Communication Code - disputes involving masts and other telecommunications equipment on land.

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.’

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).

17.46 Preparation of draft documents

As soon as it becomes clear that the valuer will be required to give evidence before the UT(LC) in any case a draft Expert Witness Report should be prepared.

The Report and other documents should be prepared along the general lines of the guidance in Practice Note 17/1.

17.47 No expert witness called by the claimant

When a claimant has indicated that it is not intended to call an expert witness the valuer should nevertheless prepare a statement of facts (even if agreement with the other party were not possible) and an expert witness report. In such circumstances these documents are not exchanged between the parties but handed in at the hearing. However, to secure a possible withdrawal it may be appropriate to provide the claimant with a copy of the evidence prior to the hearing and this will also place the authority in a strong position with regard to costs. The acquiring authority should be consulted on the appropriate procedure.

See Section 17 of the DVS Principles and Practices Manual for more information on Expert Witness issues.

Comparable properties and confidentiality

17.48 Information from PDs, forms 60(PD) and SDLT returns

Information derived from PDs, forms 60(PD) and SDLT returns although in general most useful to the valuer may be of little practical utility in UT(LC) proceedings in the absence of the necessary supporting evidence which if available renders the production such forms superfluous. Where the valuer wishes to make reference to a particular sale (not admitted by the other side) in which the valuer was not concerned and upon which particular reliance is placed in support of the valuer’s valuation, steps should be taken with the authority to secure evidence from outside witnesses of the circumstances that attended the sale, mention of which may otherwise be considered to be hearsay and of little effect.

Having regard to the significance of the date any available information as to the time of the negotiations leading to the sale and the actual contract (as distinct from the date of conveyance) should be proved.

Where the claimant or the expert witness has been concerned in a transaction it might be possible for the particulars to be extracted in cross-examination.

17.49 Particulars Delivered - transactions prior to 1 April 2000

If supporting evidence were unobtainable and the valuer considers it essential for the proper presentation of the case that information from a PD should be disclosed, written authority should be sought from the transferee or lessee to the transaction for the disclosure of the information and the production of the PD or form 60 (PD) to the UT(LC). It should be explained to the transferee or lessee the reason why authority is being sought and that the information is based on the particulars submitted by the solicitor acting for the transferee at the time of the purchase in accordance with section 28 Finance Act 1931. It should be made clear also that if the information is disclosed to the UT(LC) there is a possibility that it may be referred to in the UT(LC)’s decision. However, it is unusual for the parties to the transaction to be referred to by name, and although the decision may be published in professional journals such details do not normally appear in the general press. A specimen letter, which should be adapted as is appropriate in the circumstances of the case, is set out in Appendix 17/3 and a pro forma for completion by the transferee or lessee is set out in Appendix 17/4.

Where authority has been obtained and the PD information is incorporated into the schedule of agreed facts it is unlikely that the valuer will be required to produce the PD. Nevertheless authority should be obtained for production of the PD as well as disclosure of the information and the authority and PD should be readily available to the valuer at the hearing for production if required.

If the transferee or lessee does not reply to the valuer’s letter or cannot be traced, the valuer may approach the transferor or lessor for confirmation of the information given in a PD and authority to disclose the information. However, as the transferor or lessor was not a party to the completion of the PD, a copy should not be enclosed with the letter, nor should the valuer attempt to obtain authority from the transferor or lessor to produce the PD at the hearing. The specimen letter at Appendix 17/3 and the pro forma for completion by the transferee or lessee at Appendix 17/4 should be adapted as necessary.

If one party to the transaction expresses the wish that the information should not be disclosed the valuer should not attempt to obtain the consent of the other party.

If authority is not obtainable, and the valuer desires to produce the PD the circumstances should be reported to the PS Professional Guidance team. In these circumstances information from the PD should not be disclosed without express authority from the PS Professional Guidance team.

Should the parties to the comparable transaction (to which the valuer wishes to make reference) require the details to remain confidential and not to be quoted in the UT(LC) decision (but otherwise grant permission) it may be possible with the agreement of the UT(LC) and the other party to the hearing to refer to the comparable transaction as for example, comparable ‘A’ with the address being disclosed only to the UT(LC) and the other party but not available to the general public. However, this procedure should be pursued only when there is no other suitable evidence and reference should be made to the PS Professional Guidance team before proceeding.

17.50 Particulars Delivered (PDs) or from 1 December 2003 SDLT returns - transactions post 1 April 2000

As caseworkers may disclose only information that is available to the public via the Land Registry any transactions relating to interests that would not be included on the Land Register must not be disclosed.

Caseworkers may therefore only disclose details of:

a) the sale of a freehold interest.

b) the grant of a lease for more than 21 years from the date of the grant.

c) the assignment of a lease that, on the date of assignment, has more than 21 years to run.

Any PDs or SDLT returns relating to transactions involving interests other than those above (for example the grant of a lease for less than 21 years) must not be disclosed and should be treated in the same way as PDs relating to transactions that took place before 1 April 2000.

The address as recorded on the PD form may be disclosed but any plans attached to the PD form should not be disclosed unless they are clearly a copy of the Land Registry Title Plan. If the plan attached to the PD is not a copy of the Land Registry Title Plan, and it is considered necessary to indicate the location of the property to the taxpayer or agent when disclosing details of the sale, then the boundaries should be marked on an OS sheet extract.

The date of the transaction as recorded on the PD form can be disclosed for every transaction covered by this instruction.

Caseworkers may reveal the following information about the interest acquired by the purchaser:

a) in the case of a sale of a freehold with vacant possession, the interest as recorded on the PD form may be disclosed

b) in the case of a sale of a freehold subject to a lease for more than 21 years from the date of grant the interest, the interest as recorded on the PD form may be disclosed. However, if the PD refers to the current rent, which has been agreed following a rent review since the commencement of the lease, then this rent should not be disclosed as this will not be referred to in the Land Register. If the PD form refers to the initial rent when the lease was granted then this rent might be disclosed.

c) in the case of a sale of a freehold subject to a lease for less than 21 years from the date of grant, no details of the lease should be disclosed. The interest should simply be disclosed as being freehold subject to a lease or leases.

d) in the case of the grant of a lease for more than 21 years from the date of the grant, the interest as recorded on the PD form may be disclosed

e) in the case of the assignment of a lease that, on the date of assignment, has more than 21 years to run, the interest as recorded on the PD form may be disclosed. However, if the PD refers to the current rent, which has been agreed following a rent review since the commencement of the lease, then this rent should not be disclosed. If the PD form refers to the initial rent when the lease was granted then this rent might be disclosed

The name and address of the purchaser as recorded on the PD form can be disclosed for every transaction covered by this instruction.

The price stated to have been paid could be disclosed for every transaction covered by this instruction.

Any other information recorded in boxes 7 - 12 on the PD form, or in any documents attached, should not be disclosed because we cannot be sure which, if any, of this information will have been included in the Land Registry entry.

Photocopies of PD forms should not normally be sent to taxpayers or their agents.

If, during negotiations, claimants or their agents request details of the sales of specific properties, which they believe have been sold on or after 1 April 2000, caseworkers may provide information about these sales, in accordance with the above guidelines, provided it is considered that the request is reasonable and relevant to the valuation under consideration. If a caseworker considers that a request is unreasonable advice should be sought from the PS Professional Guidance team. Caseworkers are not expected to carry out searches in response to blanket requests (for example a request for all sales in Roads X, Y and Z between stated dates).

17.51 Preliminary estimates

The valuer is not authorised to give details of compensation and betterment included in a preliminary estimate furnished to the authority for purposes of a government department either under examination in chief or cross-examination. Preliminary estimates are of a like nature to the Parliamentary estimates prepared in connection with the promotion of Provisional Orders in Parliament and being made on the same broad basis they sufficiently serve the purpose of describing the financial commitments for land acquisition in public schemes and so enable government departments to decide which schemes should be sanctioned and what grants should be made. If the witness were pressed to disclose such details the witness is authorised to refuse to do so and to say that they are confidential and that the evidence on valuation is confined to the valuation before the UT(LC).

17.52 Rent returns

Regulation 39 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1990 (SI 582 1990) relating to the admissibility of rent returns as evidence of the facts stated in the returns in rating appeals, does not apply to references under Part IV of the Rules. Therefore where it is desirable to refer to information obtained from rent returns, the valuer should seek to establish the information by way of agreed facts. Before approaching the other side to agree facts, the valuer should obtain from the maker of the return:

*confirmation that the relevant information is correctly stated in the return and *authority to disclose such information

The procedure to be followed should be similar to that for obtaining authority for disclosure of PD information, adapted as necessary.

If authority were not obtainable from the maker of the return and the valuer considers it essential for the proper presentation of the case that the information contained in a rent return should be disclosed, the circumstances should be reported to the PS Professional Guidance Team. In these circumstances information from a rent return should not be disclosed without express authority from the PS Professional Guidance team.

17.53 Settlements by valuer

Settlements in which the valuer has been concerned with other claimants on the same or neighbouring schemes may be of use in support of the evidence and as proof of what other claimants were prepared to accept as reasonable compensation. Past decisions of the UT(LC) demonstrate however that little weight is attached to such evidence unless the evidence adduced as to direct market transactions is inadequate or inconclusive.

Such settlements can be proved by the valuer from the valuer’s own knowledge without adducing evidence from outside sources. In all cases where settlements were concluded with professional advisers the fact should be stated.

In Wolff v Transport for London [2008] RVR 316 the compensating authority had not produced certain evidence of settlements on the basis that the disclosure of the information would contravene the provisions of the Data Protection Act 1998. However, the Tribunal said ‘…. the correct procedure to be adopted by a compensating authority, faced with a reference to the Lands Tribunal and a similar request for information, if it has a genuine concern about disclosing previous settlements, is to approach the claimants in question and seek their consent to such disclosure. If any objections are raised, an interlocutory application to the Tribunal should then be made’.

17.54 Valuation for tax purposes

The value of the interest of the claimant in the property the subject of the reference or quoted as a comparable, returned by the claimant for tax purposes which was accepted by the valuer after formal valuation, may be given in evidence. Similarly, the value of the claimant’s interest assessed by the valuer for tax purposes that was either acquiesced in or agreed by the claimant may also be given.

The tax records of any other taxpayer are confidential and should not be disclosed unless specifically authorised.

Where the valuer considers it is essential for the proper presentation of the case that tax information should be disclosed a report of the circumstances should be sent to the PS Professional Guidance team. Pending instructions from the PS Professional Guidance Team, no approach should be made to the taxpayer.

17.55 UT(LC) decisions

The UT(LC) has expressed the view on more than one occasion, that decisions of the UT(LC) in other references are relevant only to argument in law or procedure. They should not therefore be included in any schedule of settlements of comparable properties in support of the valuer’s valuation. In appropriate cases however, for example where the decision relates to a similar property in the same scheme, particulars may need to be stated in supplement to the schedule to complete the information placed before the UT(LC).

17.56 ‘Absent and untraced owners’ cases

Determinations by members of UT(LC) under section 5(3) CPA 1965 (absent and untraced owners cases) are ex parte (not contested) and are not settlements. They too should not be included in any schedule of comparable properties.

17.57 Selection

To avoid any suspicion of unfairness the schedule of comparables should include not only the transactions or settlements favourable to the case of the authority but also any adverse transactions where the circumstances are similar. Where possible the number of transactions selected should be limited to those cases that are most comparable to the land the subject of the dispute. It is desirable to avoid transactions that are dissimilar in type of property or relevant time and may introduce avoidable doubts. The description of the properties and particulars of the transactions or settlements included in the list should be such as to enable the other party to prepare for the case to be answered.

Statement of agreed facts

17.58 Preparation of statement of agreed facts

After the exchange of the experts’ reports the Tribunal will normally require the experts to reach agreement as to facts, to agree any relevant plans, photographs and such, to identify the issues in the proceedings and, where possible, to reach agreement on a particular issue. The Tribunal may specify the issues that 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.

In the absence of any direction from the Tribunal the valuer should nevertheless agree wherever possible in writing with the claimant’s expert witness a statement of agreed facts and issues as described above.

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.

At the discretion of the valuer, agreement of prices of comparable properties in appropriate cases may be made. Alternatively, where the comparables comprise confidential information, it would be open to the valuer to agree with the claimant’s expert an ‘anonymised’ schedule of comparables so that the confidentiality was not breached.

The valuer should not agree alternative valuations without the prior concurrence of the legal adviser to the authority.

Where the claimant is unwilling to co-operate in producing a statement of agreed facts and issues the valuer must be able to demonstrate to the Tribunal that every effort has been made to induce the claimant to do so.

Conference with Counsel

17.59 General

It is essential that every effort be made to arrange necessary conferences with Counsel or the legal adviser to the authority to consider the evidence and documents before they are prepared in the formal form for sending to the registrar.

It is expected that, in general, Counsel will accept the views of the valuer as to the basis of valuations for the purpose of assessing compensation. If however there should be a difference of opinion as to such basis, full particulars should be reported to the PS Professional Guidance team.

Whilst Counsel might accept the views of the expert witness, he may not necessarily agree with the final conclusions, and may advise the client that the UT(LC), on the particulars of the case in question, may take a different view. This is not a criticism of the valuer.

17.60 Draft schedule of agreed facts

If agreement on matters of fact has not already been made a draft schedule prepared by the valuer should be discussed with Counsel, it being understood that amendments may be necessary in the light of Counsel’s advice and comments from the other side.

17.61 Notes for Counsel

Notes for Counsel should be prepared by the valuer to contain any material (including matters that may be adverse to the authority’s case) which although not proved is pertinent to the case and is likely to be of assistance to Counsel. The notes should also contain suggested questions to be put to the claimant’s witness in cross-examination and the replies to questions that may be put to the valuer by the other party.

17.62 Unconditional offer not made

In cases where the valuer has not been able to obtain sufficient information to recommend an unconditional offer, Counsel’s attention should be drawn to this so as not to jeopardize the authority’s position as to costs under section 4 LCA 1961.

17.63 Interest on award

Rule 51A applies

(a) section 35A of the Senior Courts Act 1981

(b) section 74 of the County Courts Act 1984

(c) section 17 of the Judgments Act 1838

(d) the County Courts (Interest on Judgment Debts) Order 1991

which give general powers to courts to award interest on judgment awards.

It is thought that Rule 51A would be unlikely to conflict with section 11 CPA 1965 (which provides that interest shall be payable from the time of entry until compensation is paid) or section 63 LCA 1973 (which provides that compensation assessed under section 10 CPA 1965 shall carry interest from the date of claim until payment).

However, the attention of Counsel or the legal adviser to the authority should be drawn to the provisions of Rule 51A and the statutory provisions in compensation cases so that they may be made aware of the different provisions for awarding interest.

Preparation of final Expert Witness Report

17.64 General

After the draft Expert Witness Report and associated documents have been compiled, and preferably after a conference with Counsel or other legal adviser to the authority, the valuer should prepare the final Expert Witness Report and any associated documents so that sufficient copies can be supplied to the authority in good time to comply with any time limits specified by the Registrar.

The documents should be prepared on the lines of Practice Note 17/1. The number of copies required will depend upon the circumstances, but the valuer should bear in mind that if documents are to be exchanged the authority will be required to send, in addition to the copy for the Registrar, sufficient copies for service on all other parties to the proceedings. If documents are not to be exchanged, sufficient copies should be prepared for handing to the UT(LC) and claimant’s Counsel at the hearing.

It is important to prepare these documents with care, for any variation at the hearing from the plans, valuations or particulars exchanged under that Rule might involve an adjournment at the hearing at the expense of the party who makes the variation.

Convenient dates

17.65 Consultation with authority’s legal adviser

It is desirable that any contact with the other side and the Registrar on the subject of convenient dates should be made by the legal adviser to the acquiring authority. When forwarding the Expert Witness report and associated documents the valuer should advise the acquiring authority as to the earliest date the case would be ready for the hearing and indicate for a period of, say, three months after that any dates that would be inconvenient. After ascertaining which dates were suitable to the other side the acquiring authority would contact the Registrar informally to ascertain which of those dates would be suitable to the UT(LC) and each party would then formally advise the Registrar of the agreed date.

When sending the Expert Witness Report to the UT(LC), the acquiring authority would state that it desired to fix a date for hearing by agreement, and would repeat this when the other side’s documents were received.

Action upon receipt of other party’s Expert Witness Report

17.66 General

The other party’s documents when received should be studied with care and an inspection made, so far as is practicable, of any properties that the witness for the other side intends to rely upon as comparables where this has not already been done, so that the valuer is fully aware of the strong and weak points of the case to be faced, and to which questions might be directed when giving evidence. A re-inspection of the property, the subject of the reference, should be made where possible particularly if there were disparities in description, and such.

If the valuer had doubts about the valuation upon consideration of the other side’s evidence, the authority should be consulted and the valuer should either reach agreement on the valuation or otherwise deal with the other side’s evidence.

17.67 Revised documents

If the examination of the exchanged documents reveals a discrepancy of fact, or, for example, the adoption of different units of measurement, the valuer should try to resolve this with the other side and if necessary consult the legal adviser to the authority about the submission of revised documents.

17.68 Additional documents

Additional documents should only be put in evidence after exchange of Expert Witness Reports with the concurrence of Counsel or other legal adviser to the authority. Caution should be exercised in the deposit of such further documents and nothing should be done that might give the other side an indication of the reply of the authority to the claimant’s case by furnishing any criticism of the claim.

It follows that it would not normally be advisable to give evidence of formal counter-valuations designed as criticism of a valuation put in on behalf of the claimants, although the material should be supplied to Counsel to assist cross-examination of the claimant’s witness. Care should be taken however to ensure that such valuations are used for purposes of cross-examination only and to avoid the UT(LC)’s receiving the impression that a valuation that has not been exchanged is being used in evidence.

17.69 Inadequate arrangements

Where inadequate arrangements are made by the authority for the proper presentation of the case the circumstances should be fully reported to the PS Professional Guidance Team before the hearing.

17.70 Disclosure of Manuals and such

If it becomes known before the hearing that the valuer will be asked to produce instructions issued for the use of staff of the VOA (whether in the form of Manuals or memoranda) or to give oral evidence about such matters, the valuer should report the circumstances to the PS Professional Guidance team.

There would be no need to contact the PS Professional Guidance team in the case of information already in the public domain for example Manuals published on the Internet. However, the PS Professional Guidance team should be consulted immediately if the approach being taken by the valuer conflicted with any of the VOA’s publicly available material.

17.71 Inspection

Rule 19 provides that the UT(LC) may enter and inspect

• the land that is the subject of the proceedings, and

• as far as is practicable, any comparable land or property to which the attention of the Tribunal is drawn

When the UT(LC) intends to enter on any premises it shall give notice to the parties of that intention and the parties shall be entitled to attend the inspection.

It is common practice for the UT(LC) to inspect the property from the outside and to inform the parties at the hearing that it has done so.

Procedure at the hearing

17.72 General

A party to the reference may appear and be heard in person, by Counsel or solicitor, or by leave of the UT(LC), or by any other person.

As a general rule the claimant begins the proceedings and it is customary for evidence to be given on oath or by affirmation. In exceptional circumstances evidence may be given by affidavit.

Attendance of witnesses and production of documents may be compelled by subpoena or witness summons, but this should not be construed as to require any information to be disclosed contrary to the public good (for example confidential information).

Where Expert Witness Reports have been exchanged prior to the UT(LC) hearing, it is acceptable for an expert witness to read from his report and in such cases the reports are often taken ‘as read’. Formerly an expert witness was not allowed to read from his Expert Witness Report but this is not now an issue. In any event there would be no objection, with the consent of the UT(LC), to witnesses’ refreshing their memory from notes or copies of valuations, schedules of comparables and the like. Evidence should normally be given sitting unless the UT(LC) directs otherwise. The normal rule is that the advocate stands before the UT(LC) but the expert witness sits to give evidence.

Confidential information at the hearing

17.73 General

Wherever possible the valuer should avoid taking confidential documents, in respect of which disclosure would be privileged, into the courtroom.

17.74 Particulars Delivered - transactions prior to 1 April 2000

The valuer should not disclose information from Particulars Delivered (PD) with a transaction date prior to 1 April 2000 without authority in writing from the transferee or lessee (exceptionally the transferor or lessor) or the PS Professional Guidance team. If the valuer were pressed to disclose information from such a PD or to produce such a PD where authority has not been given, it should be explained that the information is confidential and PDs are documents in respect of which Crown privilege is claimed.

If the UT(LC) were not prepared to accept the claim of public interest immunity, the valuer should prompt Counsel or the legal adviser to the authority to seek an adjournment so that the advice of HMRC may be obtained. The valuer should report the circumstances to the PS Professional Guidance team where public interest immunity has been claimed, whether or not the claim was accepted by the UT(LC).

17.75 Particulars Delivered - transactions post 1 April 2000

Regard should be had to Para 17.50 above regarding the details that can be disclosed from PDs or SDLT returns relating to transactions post 1 April 2000.

17.76 VOA Manuals and other instructions

Generally there would be no need to prevent disclosure of the VOA’s technical Manuals and other instructions and many are now published on the Internet.

However, if without previous warning, the production of confidential instructions (whether in the form of Manuals or memoranda) were called for at the hearing, or if the valuer were asked questions about privileged matters, it should be explained to the UT(LC) that the documents appear to fall within a privileged class and there has been no time to refer the matter to the Board of HMRC. If the claim of privilege were not accepted by the UT(LC), the legal adviser to the authority should be prompted to seek an adjournment to enable the Board, if it thought fit, to make a formal claim of public interest immunity from disclosure. In such a case an immediate report should be made to the PS Professional Guidance team, so that they could obtain the advice of the Board’s Solicitor. Alternatively, the UT(LC) might, without any further step being taken, uphold the valuer’s objections.

17.77 Disclosure of valuations for tax purposes

If the valuer were asked to give evidence or comment on valuations for tax purposes in connection with the affairs of any person other than the claimant the valuer should not do so, unless disclosure of such information has been authorised by the PS Professional Guidance team or by written consent of the taxpayer. In such circumstances it should be explained that tax matters are confidential and public interest immunity from disclosure is claimed.

If the question relates to the tax affairs of the claimant and the valuer were aware that the figure returned by the claimant left the matter below the threshold and that an opinion in general terms only was expressed that the value was below or did not exceed a certain figure, the valuer is authorised to explain that an official valuation was not required. Where the claim of public interest immunity is not accepted by the UT(LC) the valuer should proceed as recommended in the above paragraphs.

17.78 Official statistics

Valuers will be aware that much of the information reported in office returns is incorporated into official statistics that acknowledge the source. Occasions may arise when these statistics are produced as ‘evidence’ in support of a particular valuation.

These statistics, particularly in times of rapid changes in value, can prove to be embarrassing and, whilst the valuer should not denigrate the usefulness of the information it should be made quite clear that the statistics are an amalgamation of a body of information obtained on a national basis and thus it would not be reasonable for conclusions based on the figures to be applied to a specific case. The valuer’s rebuttal should be on the degree of weight to be given to the information in comparison with specific information provided in support of the valuation. In this context the valuer might point to the time lag inherent in such statistics and the possibly very small sample upon which the statistic is based.

Problems arising at the hearing

17.79 Particulars of claim not disclosed before hearing

If a claimant failed to furnish the particulars specified in section 4(2) LCA 1961 and the valuer has been unable to formulate an unconditional offer, or the authority has been advised to withdraw an excessive offer already made and such particulars are disclosed for the first time at the hearing, the authority should be prompted to ask the UT(LC) to adjourn the proceedings if, once the full particulars of claim are known, the authority wants to reconsider the policy of acquisition or the valuer wishes to review his assessment of compensation. The provisions of section 31(2) LCA 1961 relating to withdrawal of notice to treat may be relevant.

17.80 Claim amended at hearing

Where a claim were, without prior notice, substantially increased at the hearing the authority is placed at a disadvantage. There may not be sufficient time to consider the amended claim or valuation or to make a proper offer in the light of any fresh particulars unless the case were adjourned. The authority may thus be unable to withdraw the notice to treat (for example having taken possession) whatever the amount of the amended claim or valuation.

Dependent upon the circumstances the authority may have to be advised to ask for an adjournment to reconsider the matter or, in the alternative, to request the UT(LC) to have particular regard to the circumstances when dealing with the question of costs.

17.81 Improper disclosure of sealed offer

Where the other side improperly discloses the amount of the sealed offer to the UT(LC) at the hearing, the legal adviser to the authority should be prompted, if necessary, having regard to the stage in the proceedings, to make application for the proceedings to be adjourned or to request the UT(LC) to disregard the information. There is precedent for an adjournment in H E Ireland v Stockport MBC (1975) REF/210/1975 (copy available from the PS Professional Guidance Team). Counsel for the claimant declared the amount of the sealed offer in his opening remarks and the UT(LC) adjourned the proceedings for a rehearing by another member and ordered the claimant to pay costs.

However, if the Tribunal indicated that it was able to proceed without prejudice to either party notwithstanding the disclosure of the sealed offer, the valuer should not prompt the legal adviser to the authority to ask for an adjournment.

17.82 Expert witness costs: oral decision

In all cases, the attention of the legal adviser to the authority should be drawn (not later than the commencement of the hearing) to the possibility of an oral decision’s being given at the end of the hearing. This is to ensure that (in the likelihood of costs being awarded against the claimant) when an application is made immediately after the oral decision, the need for a certificate of increase (if applicable) for an expert witness is not overlooked.

Procedure after hearing

17.83 General

Rule 51 provides that the UT(LC) may give its decision orally in cases where it is satisfied that this would not result in any injustice or inconvenience to the parties. In all other cases the decision and the reason for it will be given in writing.

17.84 Alternative award where question of law in dispute

Should the amount awarded by the UT(LC) be dependent upon the decision of the UT(LC) on a question of law that is in dispute in the proceedings, the UT(LC) would state in its decision the alternative amount (if any) which it would have awarded had it determined otherwise on the question of law.

17.85 Amount awarded in respect of any particular matter

Section 2(5) LCA 1961 requires the UT(LC) on application to specify the amount awarded in respect of any particular matter the subject of the award. In any case where such an application is thought desirable by the valuer reference should be made via to the PS Professional Guidance team.

17.86 Correction of errors

Under Rule 53 the UT(LC) has power to correct in an award any clerical mistake or error arising from any accidental slip or omission.

17.87 Award of costs (section 4 LCA 1961)

Where in a reference made in a case covered section 4 LCA 1961, either the sum awarded to the claimant by the UT(LC) does not exceed the amount of the sealed offer, or the UT(LC) is satisfied that the authority was unable to make a proper unconditional offer in writing because the claimant failed to make a written notice of claim containing relevant details, then unless the UT(LC) has special reasons for not doing so, it shall order the claimant to bear the claimant’s own costs and those of the authority incurred after the offer was made or the date when in the opinion of the UT(LC) notice of claim should have been made.

Similarly, where the claimant makes an unconditional offer to the authority in writing to accept a sum as compensation, and the amount awarded by the UT(LC) is equal to or exceeds that sum the UT(LC), unless it has special reasons for not doing so, shall order the authority to bear its own costs and pay the costs of the claimant incurred after the offer was made.

In all other cases the costs of the proceedings shall be in the discretion of the UT(LC) (Rule 10). It is considered that the UT(LC) should, in exercising its discretion, take into account the existence of an unconditional offer by the authority.

17.88 Costs awarded against claimant

If costs were awarded against a claimant the amount to be charged for the valuer’s attendance at the UT(LC) should be notified to the acquiring authority as early as possible.

A certificate of increase (if applicable) must be applied for at the reading of the decision.

17.89 Reporting results

In all cases as soon as the UT(LC)’s decision is available it should be forwarded to the valuer for perusal. At the same time a brief report on the proceedings should be forwarded to the PS Professional Guidance team through the valuer including

a) the amount of the claim

b) the valuer’s figures given in evidence

c) the amount of the unconditional offer and

d) observations on any points where the UT(LC) appears to have departed from accepted principles or approach

Where appropriate, the report should include comments by the valuer on the general presentation by Counsel of the case for the authority and the claimant.

17.90 Decision contrary to VO principles

Where the decision of the UT(LC) is contrary to the principles or practice formerly followed by the VOA it is not to be treated as a precedent unless and until so authorised by the PS Professional Guidance team.

In the event of a UT(LC) decision’s being contrary to VOA principles or practice the valuer concerned should immediately inform the PS Professional Guidance team so that consideration may be given as to whether the authority should be advised to appeal.

If any doubt exist as to whether or not any decision were contrary to VOA principles or practice the valuer should consult the PS Professional Guidance team.

17.91 Appeal

The decision of the UT(LC) is final as to the matter of fact or value. An appeal lies from the UT(LC) on a point of law only, direct to the Court of Appeal with the normal rights of appeal by leave to the Supreme Court. Any party to the dispute may within 28 days of the date of the decision serve a notice on the Registrar requiring the UT(LC) to state a case setting forth the facts on which the decision was based and the decision of the UT(LC) thereon. That party must within 28 days of receiving the case, serve a copy of it and a notice of motion stating the grounds of appeal on all the other parties to the dispute and the Registrar and within two days of service of the notice lodge the case and copies of the motion with the proper official of the Court of Appeal.

In appropriate cases the valuer should enquire of the authority whether or not an appeal is contemplated. If the valuer were asked for advice as to whether or not an appeal should be lodged, the matter should be referred to the PS Professional Guidance Team.

If the valuer becomes aware that the authority proposes to lodge an appeal the PS Professional Guidance team should be informed.