EXPERTS CAN’T BE ADVOCATES: IT IS AS SIMPLE AS THAT

There are some interesting observations about the role of the expert made by Judge Asif Malek in Neil Picklessharon Pickles v Revenue & Customs (Whether crediting a directors’ loan account which was freely available for the directors/members to draw upon ) [2020] UKFTT 195 (TC)

“The distinction between an advocate and a witness is crucial to the just disposal of any hearing.”

THE CASE

The hearing concerned how much tax should be paid on goodwill following the transfer of a business from a partnership to a limited company. The applicants were represented by an accountant who had also provided an expert report on valuation.

THE EXPERT AS ADVOCATE

The tribunal had to determine, as a preliminary issue, the status of the report produced by the advocate.
  1. This issue arose because Mr. Davison appeared before us on the day of the hearing as an advocate and at the same time had submitted a valuation report to the Tribunal as an expert pursuant to its directions dated 22 February 2019. Those directions provided that:
“The parties are each granted permission to rely on the evidence of the expert witness on the issue of the valuation of goodwill provided any such expert is instructed in accordance with Part 35 and Practice Direction of the Civil Procedure Rules and whose evidence contains a statements [sic] to the effect that the expert has been so instructed”
  1. We decided on the day that it was incompatible for Mr. Davison to act both as an advocate for the Appellants and as a Civil Procedure Rules part 35 expert, with reasons for our decision to be given later in writing. Mr. Davison elected to continue as an advocate and not an expert, but even if he had not done so we would have, for the reasons given below, concluded that we should treat his report as written representations made on behalf of the Appellants (giving it weight accordingly).
  2. Rule 2 of the First-tier Tribunal (Tax Chamber) (the “Rules”) provides:
 “(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
                        (b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
                        ………; and
                        (e) avoiding delay, so far as compatible with proper consideration of the issues.”
  1. In addition, Rule 5 gives the Tribunal wide case management powers in relation to the conduct and disposal of proceedings, including the ability to decide the form of any hearing.
  2. The distinction between an advocate and a witness is crucial to the just disposal of any hearing. This is even more so where the witness is an expert upon whom there are additional duties. In R v Pabon [2018] EWCA Crim 420 it was held that it was of paramount importance that an expert is familiar with the duties and responsibilities imposed on them at common law and under the applicable procedural rules.
  3. Creswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The “Ikarian Reefer”) [1993] 2 Lloyd’s Rep. 68 (Comm Ct) considered the authorities on the duties and responsibilities of experts in relation to the courts and concluded as follows:
(1)          Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1 WLR 246, at 256).
(2)          An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise (Pollivitte Ltd v Commercial Union Assurance Company PLC [1987] 1 Lloyd’s Rep, 379 at 386). An expert witness in the High Court should never assume the role of an advocate.
  1. Further CPR PD35 para 2.2 expressly provides that:
“Experts should assist the court by providing objective, unbiased opinions ….and should not assume the role of an advocate”
  1. The above authorities are binding upon us and, in our view, present an absolute bar on an advocate in proceedings before this chamber acting both in this primary capacity as well as that of an expert witness. Whilst recognising our duty to avoid unnecessary formality and to seek flexibility in proceedings under the overriding objective; the distinctions between advocate and expert witness is of such fundamental importance to the just disposal of proceedings that it must be maintained – even at the cost of some formality and inflexibility.
  2. If we are wrong to regard the authorities that we have considered as providing an absolute bar then we would have little hesitation in concluding, in any event, that the report provided by Mr. Davison was tainted by his apparent lack of knowledge of the duties owed by an expert to the tribunal and deficient in key aspects. These deficiencies include a failure to:
(1)          Provide a statement of truth (CPR PD35, 3.3), and
(2)          Include a statement that he understands and has complied with his duty to the Tribunal (s35.10(2) CPR 1998 and PD35, 3.2(9) and 3.3).
  1. As such, and given what we say above, we place little weight on the report produced by Mr. Davison and treat it akin to written submissions made by an advocate for his client.