The Gazette 1990

GAZETTE

'

APRIL 1990

Arbitration - the expert witness and compensation

In this article I want to discuss two related subjects. Firstly, the Expert Witness with wh i ch I will deal at some length and then Compensation wh i ch I will briefly touch on. I think it would be best if I start by saying a little about Arbitration and the post of Property Arbitrator - before we look at the Expert Witness in the Arbitration Context. I may cover ground with wh i ch some of you will be familiar, but I have found that Arbitration generally, and in particular the Property Arbitrator's function, is something of a mystery to most professionals apart from those who have been involved in a few cases.

variety of State and Semi State agencies have the right to acquire land compulsorily for purposes as diverse as the construction of power stations, the development of bogs and slum clearance. In 1919 The Acquisition of Land (Assess- ment of Compensation) Act was passed. This was the second most important statute as it provided a basic framework of rules for the assessment of compensation and also established the position of the Arbitrator and the machinery whereby the Arbitrator was appointed. Subsequent legislation in 1925 and in 1960 modified the provisions slightly to accord with conditions in the independent State, and now, of course, the Planning and Housing Acts have amended the Code. The Arbitration Act 1954 is the principal act gov- erning matters relating to arbitration. The Property Arbitrator, for that is his statutory title (not Official Arbitrator as often quoted), is appointed by a body known as the Land Values Reference Committee. This Body comprises the Chief Justice, the President of the High Court and the Chairman for the time being of The Republic of Ireland Branch of The Royal In- stitution of Chartered Surveyors. It is a full-time post, and the basic qualification for it, set down in the 1919 Act, is "that the person should have a special knowledge in the valuation of land", has been little changed. Prior to 1979 there had been four previous holders of the office since 1922. Due to the increase in the number of cases being referred it was decided to appoint a second Arbitrator. The two property Arbitrators cover the " [ T he 1919 Act] provided a basic framework of rules for the assessment of compensation . . . "

Arbitration is a method of sett- ling disputes where the dispute is referred to a third party to deter- mine after a Quasi Judicial hearing. Generally, the subject matter of the Dispute will be of a technical nature, and the Arbitrator will almost invariably be a person with some expertise in the particular technical field. Examples are dis- putes arising under building con- tracts, insurance contracts, rent reviews in leases and matters of that nature. In most cases reference to arbitration will by agreement, generally contained in the original contract, but the arbitrations with which we are primarily concerned are directed by statute. These will include cases arising under the Compulsory Purchase Code, Planning Compensation, Arterial Drainage, Gas Pipelines etc. Practically all will involve the ass- essment of compensation payable to the owners and occupiers of property as the result of the action of a Public Authority. We have to go back to the middle of the last century to trace the origins of our compensation code. In the late eighteenth and the first half of the nineteenth centuries compulsory purchase powers were given on a large scale to statutory undertakings such as canals and railways which, although in the national interest, were carried out by private enterprise. To obtain these compulsory powers, the pro- moters had to present a Private Bill

to parliament for each scheme and the resultant Special Act would spell out how the compulsory

By J o h n R. Sh a c k l e t on A . R . I . C . S. P r ope r ty A r b i t r a t or

powers were to be implemented and the provisions for the assess- ment of compensation. Owing to the special nature of the process, and the need for expert technical knowledge to arrive at a just estim- ate of compensation, Arbitration was regarded as a very convenient method of settling Disputes arising, and in 1845 the Land Clauses Consolidation Act was passed. This Act provided a complete Code of Law covering Compulsory Pur- chase procedures, and the rights of " . . . The Land Clauses Consolidation Act [1845] . . . provided a complete Code of Law covering Compulsory Purchase . . . " the parties, and provided that, in default of agreement, in most cases compensation was to be assessed by Arbitration. Subsequently, the rapid and un- controlled growth of manufacturing towns greatly increased the necessity for compulsory acquisit- ion of lands for public health purposes, until today when a wide

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