Peter Dening Explains The Role Of The Expert Witness In Leasehold Disputes

Many people may have heard or used the term 'expert witness' but how many are actually sure what an expert witness is or what they do. In many television courtroom dramas the expert witness will be portrayed giving evidence in a case explaining how an injury was caused or the fact that the defendant couldn't possibly be where they said they were. This is all very exciting but does it translate into the reality of the expert witness dealing with leasehold disputes? This is possibly not quite as exciting as acting as a witness in a criminal prosecution but is just as interesting for someone involved in this type of work.

Expert witnesses are required in all sorts of property-related matters and especially in the area of leasehold cases such as service charge disputes. The expert is just that; a professional person, qualified by virtue of training, education, skill and experience in the relevant field who has a specialised knowledge in the subject beyond that of the average person.

The expert may be approached to assist in the preparation of a matter to be brought before the courts of the First-tier Tribunal and initially will offer advice about the merits of the case and give general advice. If the case then progresses to the court or tribunal the expert is asked to produce a report or witness statement setting out their findings. The duty of the expert is always to the court or tribunal rather than to the party that instructs them and the expert must abide by the formal civil procedure rules of the Civil Justice Council.

An expert may be instructed by either side in a dispute, or sometimes one expert is instructed to be a “joint single expert” who is appointed by both sides by common agreement and who must advise purely on the merits of the matter. In either case the court is relying on the expert to give clear unbiased opinion, regardless of who has instructed them.

So what sort of cases might an expert become involved with? In the area of leasehold law the most common disputes relate to service charges, ranging from the quality of work carried out, the reasonableness of costs incurred and the quality of services provided, to the performance of the managing agent in respect of the fees charged.

The last few cases I was involved with as an expert witness were because the court asked the parties to instruct a single joint expert to provide a report on some of the issues in hand relating to the variable rent charges payable by freehold houses. Disputes arising over these matters must go to the courts as such charges are not subject to statutory control at the moment and cannot be heard by the First-tier Tribunal. The topics that needed to be covered included the correct apportionment of costs and the reasonableness of the charges.

One of the most interesting aspects of acting as an expert is the opportunity to apply knowledge, skill and experience to the matter in hand and hopefully contribute to an effective outcome.

Choosing The Right Expert

A recent discussion about expert witnesses on social media threw up the comment ““An expert should be an expert in his field, not an expert at being an expert.” This is quite true. Questions are often raised as to what constitutes a reliable 'expert', and what level of expertise is required to give evidence to a tribunal. So how can you tell whether your expert witness is right for you? The obvious answer is to take the advice of your solicitor. But what will he or she be looking for?

Mark Chick, a solicitor specialising in leasehold enfranchisement and a partner with Bishop & Sewell in London, told Flat Living that his firm looks for “someone who is convinced of their own ideas, who has an opinion and who understands the role of the expert is to help the tribunal not the client”.

He adds that it goes without saying that any expert witness he chooses must have experience of acting in the role and be used to presenting in front of a tribunal. Mark Wilson, Managing Director of chartered surveyors Myleasehold agrees that a good and credible expert witness needs to have the right combination of qualifications, specific knowledge and expertise, and experience at giving evidence. “Experts have a duty to act in a professional manner and in the best interest of the general public and the client,” he says.

Caution should also be taken when leasehold professionals take on the expert's role as, “if there are any doubts as to your credibility, a judicial body could attach little or no weight to your evidence,” Mark concludes.

Peter Dening is a chartered surveyor and partner at Pennycuick Collins in Birmingham.