Identity crisis

With a more sophisticated rent review arbitration process, are expert valuation witnesses behaving too much like advocates? Jonathan Seitler QC reports

Traditionally, whether or not a rent review involves an oral hearing, the landlord and tenant each employ a surveyor to give an opinion of value to the arbitrator. Although the landlord’s valuer will usually find a way to suggest that a substantial rent hike is warranted and a tenant’s valuer will often suggest either no increase or a more modest increase, the fiction has prevailed for some time that each surveyor is in fact only putting forward their true opinion of the value of the particular property.

This fiction is now breaking down. Pressure from commercial landlords and tenants and a more competitive field for valuation services has meant increasing numbers of surveyors have adopted an approach that is increasingly aggressive.

It is not unknown, for instance, for one party’s surveyor to pour scorn on the professional qualifications or experience of the other party’s surveyor in order to convince a rent review arbitrator to accept their expert evidence. The rough-and-tumble tactics of the courtroom are increasingly creeping into rent review valuation reports.

This is a dangerous and unwelcome development. The provision of advocacy services and expert evidence are different things.
Advocacy is about persuasion – the advocate does not necessarily need to personally believe in the position they are being retained to advance. In contrast, expert evidence is about the presentation of material that is supposed to be the honest opinion of the author.

To blur the line between the two undermines the credibility of expert evidence and ultimately risks undermining the rent review arbitration process itself. If arbitrators cannot work out if and when the view of the expert is sincerely held, an extra layer of uncertainty is added to the process, which sells itself on being commercially responsive.

Unfortunately, the Royal Institution of Chartered Surveyors’ (RICS) practice statement does not provide clear guidance: it suggests that surveyors should “consider the wisdom of undertaking both roles”, but does not suggest any criteria for RICS members to determine when it is wise and when it is unwise to act both as expert witness and advocate.

Furthermore, there is only a limited number of surveyor arbitrators that are prepared to reflect the distinction between advocacy and evidence in the directions that they make.

One leading commercial rent review arbitrator, for instance, will include a direction to the effect that each party’s expert witness report is to be accompanied by a statement confirming that the representations do not reflect advocacy but are independent, objective and unbiased.

Few other rent review arbitrators, though, are this far advanced in appreciating the need to separate advocacy and expert evidence.
Ultimately, then, practitioners must make their own decisions: surveyors and solicitors must together decide what to advise the client as to who should perform the advocacy at the rent review.

Cost and convenience certainly weigh in the balance as factors suggesting that the surveyor alone is capable of performing both roles.

But three other factors imply that the surveyor should act only as expert witness and that the solicitor should perform the advocacy, at least in high-value cases, where the extra expense can be more easily justified.

The first is that the only sensible way to make a clear distinction between advocacy and expert evidence in rent review arbitrations is for both an expert’s report and a skeleton argument to be submitted. That makes plain what is argument and what is evidence.
The solicitor, however, is likely to have much greater experience in the preparation of a skeleton argument.

The second is that it is all too easy for a tribunal’s detrimental view of the proficiency of the expert’s advocacy to impact for the worse on its view of that expert’s evidence. Similarly, a negative view of the expert’s evidence may damage the tribunal’s receptiveness to the expert’s advocacy. In short, when the roles of expert and the advocate double up and are performed by one individual, the risks of a rent review arbitrator taking against a party double.

The third is that separation of the expert from the advocate can, if necessary, allow the advocate the ability to ‘cut loose’ from their own expert’s evidence if it looks as if that evidence is not going to be accepted. This tactic – one of last resort but still a valuable one in the armoury of the advocate for in extremis situations – would less easily be available to the combined advocate-expert.

The result is that commercial landlords and tenants who find themselves in a rent review arbitration should consider carefully whether combining the roles is not, especially in high-value cases and where there is an oral hearing, a false economy.

Jonathan Seitler QC is a barrister at Wilberforce Chambers