The Court of Appeal has held that a valuer appointed under a settlement agreement was not prevented from being “independent” for the purposes of that agreement merely because he had valued the same property before.
In Re Maximus Securities Ltd sub nom Hopkinson v Hickton & Others [2016] EWCA Civ 1057, a minority shareholder agreed to settle an unfair prejudice petition on the basis that one of the respondents would purchase his shares at the open market value. The company’s only asset was a piece of land, which under the settlement agreement was to be valued by an “independent valuer”. Unbeknown to the parties, the surveyor they jointly appointed had previously overseen the valuation of the same property prior to its sale a few years before. The surveyor himself did not realise this when first appointed, but only when he received the parties’ written submissions. He then declared his previous involvement in his valuation report. The minority shareholder claimed that he would not have agreed to appoint the valuer had he known about this at the time.
The Court of Appeal held that the test for the independence of a valuer was whether, at the date of the appointment, he had (i) a connection with a party, (ii) an interest in the outcome, or (iii) a connection with the property; and if he did have one of these factors, whether viewed objectively, it created a real risk that he might act partially. There was no need to prove actual bias.
In this case, an objective observer would consider the possibility that the surveyor might have an unconscious bias in favour of producing conformity between the old and new valuations. However, he would also take into account the likelihood that an experienced valuer would act professionally, the distance in time between the two valuations, and any other intervening events. Most importantly, at the date of appointment, the valuer himself had not been aware that he had been involved in valuing the property previously, so his independence could not have been compromised as at that date. The court held that the minority shareholder was bound by the valuation.
Comment
Professionals in the property industry called as experts may not be surprised to read the facts of this case given the nature of what they are called to value. This ruling should provide some comfort to experts in all fields and is a clear restatement of the law in this area.
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