MORE ON EXPERTS: NON-COMPLIANCE WITH THE RULES TAINTS THE EVIDENCE BADLY

We  have already looked at one of the observations on experts by HH Simon Barker QC in Bacciotinni & Cook -v- Gotelle & Goldsmith [2014] EWHC  3257 Ch. There we looked at “over eager” experts. The judge also had something to say about experts who appeared to have no knowledge of the requirements of CPR Part 35.

THE PLANNING EXPERTS

Both parties had planning experts who gave evidence in the case. Both experts were regarded as “tainted” by the judge due to failure to consider, or apply, the provisions of CPR 35.

1. As to the prospects of the 1974 condition being lifted, the evidence of both planning witnesses is, to an extent and for different reasons, tainted.
2. Mr Hancock, who is the claimant’s witness, was making his debut as an expert witness to the court. His evidence was not CPR 35 compliant, notwithstanding that his instruction pack had included a copy of CPR 35. When taken through certain provisions of CPR 35 in cross-examination, it became apparent that he was unfamiliar with CPR 35, and further, that he had really not addressed his mind to the approach to be taken by a court expert.
3. In one respect, he did, however, have the advantage over Mr Le Grys, the defendant’s expert planning witness: Mr Hancock actually had experience of dealing with Suffolk Costal District Council.
4. My assessment of Mr Hancock is that he was overcautious to the point of being unrealistically pessimistic. I attribute this approach to the unusual, perhaps to him unique, nature of the problem he was to address, and to his default position, namely that of being very cautious in outlook and approach.
5. Mr Le Grys on the other hand, and notwithstanding his obvious hostility to Mr Bacciottini, did engage with the problem by considering the post-2000 planning regime and examining what grounds there might be for refusing or accepting an application to lift the 1974 condition.
6. My view of the planning opinion evidence is that Mr Le Grys’ opinion contains the more realistic appraisal of the prospects of the 1974 condition being lifted. In short, my view is that the prospects of the 1974 condition being lifted, in and after 2007, were, having regard to both the planning regime and the circumstances of the occupation of the property, very high.
7. As to the value in 2007, subject to the 1974 planning condition, the value of The Granary was stated by Mr Clarke to be £125,000. However, as Mr Gatt Queen’s Counsel demonstrated in cross-examination, this valuation makes no sense when subjected to an arithmetical check test.
8. Mr Clarke, like Mr Hancock, is a newcomer to the role of court expert witness. I consider that he gave his evidence openly during cross-examination. However, at the time when his report was written, the litigation had not commenced and he had not intended his report to be CPR 35 compliant.
9. A later — some two and a half years later — statement purporting to bring his report within the CPR 35 criteria did not have that effect; again, as was demonstrated in cross-examination.
10. I accept that Mr Clarke has considerable local knowledge as an estate agent and a valuer, but his approach to the question of the value of the property at May 2007, taking the 1974 condition into account, is, in his own words, “subjective and speculative”; it lacks the objectivity and reasoning expected of an expert to the court.

EXPERTS MUST KNOW ABOUT CPR 35 AND MUST COMPLY WITH IT

This highlights the importance of ensuring that the expert is familiar with the provisions of CPR Part 35 and complies with it.  Failure to comply is a fruitful source of cross-examination and, in many cases, renders the evidence worthless.