08/20/2020 - UK Expert News: Independence of Agricultural Expert Witnesses in the Spotlight

In an eye opening decision in Carr v Evelyn, the First Tier Tribunal (the new name now given to the body that is still globally called the Agricultural Land Tribunal) has very heavily criticised the landlords and their main expert witness in a contested succession application.

Many agricultural professionals carry out some expert witness work. This decision will make them shudder. The expert witness was described as 'a ‘hired gun’ put forward by the landlords to make their case and with evidence molded to this purpose.'

The Tribunal refused to accept his evidence: 'he was a member of the 'landlords’ team and not, therefore, a witness upon whose impartiality and independent expertise the Tribunal could rely' and 'his supposed expert evidence is not and cannot be seen to be an independent and uninfluenced product and for that reason cannot be admitted in evidence, or relied upon, by the Tribunal.'

The manner in which instructions were given to the expert witness to visibly lead him to a particular conclusion meant that he had 'not been acting in any independent fashion is respect of these Proceedings, but is and, in the view of the Tribunal always has been, an active member of the 'landlords’ litigation team.'

Judgments are normally quite withdrawn in their criticism of parties and witnesses. This judgment was razor sharp. It emphasises the risks that expert witnesses can run if things go wrong for them and highlights the failings of the steps undertaken to ensure the expert witness was an impartial witness.These actions impact not just on experts, but on the lawyers instructing them, who do not emerge from this case in a good light.

The tribunal took an aggressive stance to the losing landlords, based upon how it said they had acted, and penalised their purse, ordering that they pay 80 per cent of the Appellant’s costs. It also said that those costs would be paid on the indemnity basis (which means that doubt will be resolved in favour of the tenant when costs are being assessed, and tends to lead to a party getting more money refunded) based on their disapproval of the landlords’ approach.

There was a five day hearing in this case, with multiple expert witnesses giving testimony, so the costs are bound to be very high. That may tempt the landlords to consider whether they should appeal.

There is no question that agricultural professionals called upon to provide expert evidence to the Tribunal by a party should be looking at this judgment carefully, and checking that they can demonstrate that they have maintained their independence. Experts looking at these events too should take note of the scrutiny experts are under.