Part 1: advocate and expert witness roles
The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.
1.1 Presenting a case to Valuation Tribunal is likely to involve both advocacy and expert witness testimony. In straightforward cases both roles may be undertaken by a single person provided that the two, potentially conflicting, roles are kept separate. In more complex cases, which in some cases may require legal representation, the roles will be split.
1.2 In 2017, the RICS published the following documents that should be read an understood by caseworkers presenting cases to Valuation Tribunal:
RICS Professional Statement ‘Surveyors acting as advocates’ 2nd edition professional statement and 3rd edition guidance note February 2017 – https://www.rics.org/uk/upholding-professional-standards/sector-standards/dispute-resolution/surveyors-acting-as-advocates/
RICS ‘Surveyors acting as expert witnesses’ 4th edition April 2014 amended August 2020 – https://www.rics.org/uk/upholding-professional-standards/sector-standards/dispute-resolution/surveyors-acting-as-expert-witnesses/
2.1 As a surveyor-advocate you must:
- take personal responsibility for the conduct and presentation of your client’s case, and act in the best interests of your client.
- advance the case that you are presenting fairly.
- not allow your integrity or professional standards to be compromised
- not deceive or mislead the tribunal or opposing party
- make sure that the tribunal has before it all relevant decisions and legislative authorities.
2.2 In practice, the advocate pleads the cause of the VOA, arguing a particular point of view. In doing so, the advocate makes contentions (‘I contend that…’) and submissions (‘I submit that….’). The advocate does not express an opinion of value; that falls to the expert witness. The advocate will seek to guide the tribunal in the correct treatment of the matter by reference to statute or case law and will examine, by appropriate questioning, the expert or cross examine the opposing side’s expert.
2.3 The advocate has a duty to assist the tribunal, including not making statements to it that are known to be untrue or misleading it in any way and, unless there is justifiable reason not to do so, complying at all times with the directions of the tribunal.
2.4 The advocate must not give any expert (opinion) evidence to the tribunal, unless acting in a dual role and permitted by the tribunal to do so.
2.5 The advocate must draw the tribunal’s attention to all relevant legal decisions and legislative provisions of which they are aware, whether they support the client’s case or not. In the event that an advocate for the other side omits a legal decision or provision, or otherwise makes an erroneous reference to one, they must draw the tribunal’s attention to this.
3.1 The overriding duty of an expert witness is to the tribunal to which the expert is giving evidence. This duty overrides any contractual duty to the client.
3.2 This duty requires the expert to set out the facts fully and give truthful, impartial and independent opinions covering all matters, whether or not they favour their client.
3.3 The role of the expert is therefore to provide to the court or tribunal independent assistance by way of objective unbiased opinion in relation to matters within their expertise and to state the facts or assumptions on which that opinion is based, not omitting to consider material facts.
3.4 The requirement is clearly one of neutrality and balance. The expert’s report must be truthful as to fact, honest and impartial as to opinion and complete as to coverage of all relevant matters and this duty prevails above the expert’s duty to the client or employer.
3.5 Expert witnesses can only act in this capacity where they have the experience, knowledge and appropriate expertise and they have carried out such factual research as they consider necessary – including, where appropriate, inspection of the property.
3.6 Where an inspection is required, it must be carried out to the extent necessary to produce an opinion that is professionally competent. The date or dates of inspection should be stated as should the extent of access gained. If an inspection is not possible, this should be mentioned in the expert’s report and an explanation given to the tribunal.
3.7 The expert’s report must state the source of any factual information relied upon. This could include literature, the opinion of others, or surveys/floor plans where these have been drawn by someone else.
3.8 In practice, special care must be taken to ensure that expert evidence is not biased towards the client and should not be exaggerated or seek to obscure alternative views or other schools of thought, but should instead recognise and, where appropriate, address them.
3.9 An expert witness must be able to show that he/she has full knowledge of the duties relating to the role of an expert witness when giving evidence and the RICS have a standard declaration to that effect to be included in expert witness reports.
4.1 The valuation surveyor is permitted to act as both advocate and expert witness in the same case at valuation tribunal provided that the roles are distinguished at all times. There are both advantages and disadvantages of being able to act in a dual role capacity. An obvious advantage is that access to justice is improved because the cost of taking a case to court is reduced. A disadvantage is that the weight that the tribunal attach to evidence given in the capacity as expert witness might be adversely affected when given by a party advocating the case, as the two roles are fundamentally incompatible.
4.2 How, in practice, should the roles be separated? RICS guidance suggests several practical solutions:
4.2.1 Use two separate documents to distinguish advocacy from witness testimony. These might be on different coloured paper or with different coloured covers. If in a single document, the parts should be clearly distinguishable from one another.
4.2.2 Announce when changing from one role to the other. For example, when changing from advocate to expert witness, simply say “I will now present my evidence”. By informing the tribunal when expert evidence begins, it will be clear which material can be tested by cross-examination.
4.2.3 The roles can also be distinguished by the language used. The advocate prepares and makes ‘submissions’ whereas the expert prepares a ‘report’ (or ‘statement’ in written representations). The advocate uses words such as ‘I suggest’ or I submit that…’ but should avoid phrases such as ‘in my experience’, ‘in my view’ or ‘in my opinion’. The advocate’s opinion is irrelevant. Opinion should be left to the expert witness who will frequently say ‘in my opinion…’ or even ‘I believe that….’ Or ‘I think that…’
4.3 The material presented should make it obvious to the tribunal which role is being performed.
4.3.1 The advocate will present any legal submissions and will use the evidence presented by the expert to support the client’s case
4.3.2 The expert witness will state the facts and offer expert opinion. The expert should generally avoid interpreting legal matters although he/she may need to state an understanding of a point of law if this forms an assumption behind his/her opinion.
4.4 By keeping the roles separate and discrete, the surveyor fulfils a duty to assist the tribunal making it easier for the members to come to a reasoned decision based upon the evidence and submissions presented.