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.

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

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

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

" [ T he 1919 Act] provided a

basic framework of rules for

the assessment of

compensation . . . "

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