The recent Upper Tribunal judgement in Gardiner & Theobald v Jackson (VO)  UKUT 253 (LC) raises issues relating to the ways in which a firm may and may not use conditional fee arrangements in a matter in which anyone employed by that firm may later give expert opinion evidence.
Also, whether that would be incompatible with the expert's duties to act independently and impartially.
RICS’s approach to this matter is clearly set out in the RICS Practice Statement Surveyors Acting as Expert Witnesses, 4th edition. The RICS Professional Guidance was specifically referred to in the case – notably sections PS 10 Conditional fees and GN 19 Conditional fees and approved by the court.
Any success-related fee payable to an expert witness, or to the practice for which he or she works, needs to be properly declared by the expert at an early stage. The judgment cautions against an assumption by experts that any standard form conditions drafted by their firm comply with the requirements of tribunals. It emphasises “the importance of a practice ensuring that its standard terms of engagement are drafted with care and clarity so that they do indeed comply with those obligations. Furthermore, individual experts must ensure that any specific terms agreed for individual cases, whether varying or supplementing the standard conditions of a practice, also meet the same requirements”
Firms instructed under a conditional fee arrangement may wish to reconsider this fee basis, following this decision, as there is a potential that any expert evidence could be excluded as inadmissible or given reduced weight by the tribunal.
The Tribunal came to the conclusion that a copy of the decision should be sent to the President of the RICS so that it can consider whether the decision has any implications for the Practice Statement, and whether any further steps should be taken in relation to the circumstances of this case.
RICS will review in the coming months the RICS Practice Statement Surveyors Acting as Expert Witnesses, 4th edition publication. The review will consider whether the wording of the practice statement and related advisory guidance should be made more specific to provide further clarity on RICS expectations in respect of expert witness appointments and wider fee earning relationships. A public consultation will be undertaken on the revised draft – we encourage industry stakeholders to engage with the consultation and submit their views.
RICS take this opportunity to remind practitioners of their obligations, particularly around transparency and ethical behaviour as set out in the RICS Rules of Conduct and to consult appropriate guidance.
Nigel Sellars FRICS
Associate Director of Commercial Property
As part of the Professional Groups and Forums team, Nigel sits on a number of commercial property-related panels whose function is to shape industry best practice, raise standards and develop policy. He also has joint responsibility for (and input into) the guidance notes, journals, articles and forums produced and managed by these groups.