AN “UNFORTUNATE CHANGE OF VIEW” BY AN EXPERT: ANOTHER EXAMPLE OF A REPORT NOT BEING ROBUST AND CAUSING DIFFICULTY FOR LITIGANTS
There have been several posts this month about experts, particularly valuation experts. There are short passages in the judgment of Chief Master Marsh in Bakrania & Anor v Shah & Ors  EWHC 949 (Ch) which provide another example.
The claimants were seeking damages following the sale of a property they owned by fraudsters. Initially part of their case had been that the purchasers bought the property at a clear undervalue.
The judge concluded on the facts that Mr and Mrs Souris were in possession of the land at the relevant date and, therefore, it was necessary for the claimants to show that either by reason of lack of care Mr and Mrs Souris substantially contributed to the mistake or it would not be unjust for any other reason for the alteration not to be made. At one time, the claimants sought to contend that the price at which Mr and Mrs Souris purchased the property was a substantial undervalue and this demonstrated a lack of care on their part. The claimants obtained a valuation report which expressed the opinion that the purchase price was well below market value. However, when the joint meeting of experts took place, the claimants’ valuer revised his opinion and agreed with the valuer acting for Mr and Mrs Souris that the sale price was at or around market value….
The claimants when pursuing the FTT claim were faced with an unfortunate change of view by their valuer. His initial advice was that the property had a value of £650,000 at the date of transfer to Mr and Mrs Souris. This enabled the claimants to contend that Mr and Mrs Souris lacked proper care on the transfer given that the consideration for the purchase was £440,000. However, the valuer agreed with the Souris’ valuer for the purposes of their joint statement that the sum paid by them reflected the market value at the time. On any view it was no longer reasonable to pursue the FTT claim from that point onward at the latest.
The expert hear was acting perfectly appropriately in changing their view at the joint meeting stage. However it does raise the question of how robust that view was in the first place. It illustrates the danger or launching a case on the basis of expert evidence and, if necessary, questioning that evidence prior to issue.