The Gazette 1990

GAZETTE

' APRIL 1990

whole country and both are

Chartered Valuation Surveyors.

Once a Notice to treat has been

served and no agreement is forth-

coming either party may apply for

the appointment of an Arbitrator.

The application is normally made

on a special form, available from

the Reference Committee. This

form, completed, signed and

stamped (£3), together with a copy

of the C.P.O., the Ministerial

Confirmation order, the Notice to

Treat, a copy of the Statement of

Claim (if received/made) and any

relevant maps is lodged with the

Reference Committee in the Four

Courts. The Committee then nom-

inate an Arbitrator and notify the

parties of his name. The Arbitrator

will then communicate with the

parties to fix a date, time and place

for the Hearing.

I mentioned earlier that the

Arbitrator makes his decision after

a Quasi Jusicial Hearing. This

means not alone that there will be

a hearing, as there is in Court, with

witesses giving evidence under

oath, but also that the arbitration

and the Arbitrator's Decision,

known as his Award, have a num-

ber of characteristics in common

with a Court Hearing and

Judgment.

. . there is no financial limit

to the Property Arbitrator's

jurisdiction, nor is there an

appeal f rom his awa rd except

on a point of l aw . "

The Arbitrator acts, as does a

Judge, only on the evidence and

argument submitted to him, and

basis his Decision solely on that

evidence and argument. The

Arbitrator cannot make a decision

unless he receives evidence or un-

less he is appointed solely because

of his expertise and this is ex-

pressed in the Arbitration Agree-

ment. Thus, where one party only

to an arbitration submits evidence,

and nothing to the contrary is put

forward by the other side, the

award must be in accordance with

the evidence given.

The Arbitrator can, through the

courts, if necessary, compel dis-

closure of documents. Normally, it

is not necessary to resort to the

Court to compel discovery, as the

knowledge that the power exists is

generally sufficient to ensure that

documents required are produced.

Of course it is only where one of

the parties might not comply with

the Arbitrator's direction to pro-

duce the required documentation

that the Arbitrator would seek the

assistance of the Court. The same

applies to witnesses where any

party to a reference may subpoena

a witness.

The Arbitrator's Award, i.e. his

decision, may be enforceable as a

Judgement of the Court. This is an

important provision, particularly in

private arbitrations, but it can also

be important in Statutory Arbitra-

tions. For instance, in times of

acute shortage of public finance

such as we are at present

experiencing, Public Authorities

can, understandably, be reluctant

to implement the Award and have

been known to make haste very

slowly.

It is important to note that there

is no financial limit to the Property

Arbitrator's jurisdiction, nor is there

an appeal from his award except on

a point of law. This means that

even if one of the parties disagrees

violently with the Award he has no

appeal against it unless he can

show that the decision was arrived

at through misinterpretation or

misapplication of some legal pro-

vision or, of course, if he can show

misconduct on the Arbitrator's

part. Misconduct is used in the

sense of mistaken conduct in the

course of the reference. If such an

appeal were upheld, the Court

would not amend the award more

to the Appellant's liking, but would

direct that the matter be referred

back to the Arbitrator for reassess-

ment on the correct legal basis. It

is unusual for this situation to arise,

because when a point of sufficient

legal importance arises during a

Hearing, and a measure of agree-

ment is not reached on it, it will be

referred to the High Court for a

decision using the Special Case

procedure. In extreme cases the

Court may direct the award to be

set aside instead of being remit-

ted.

The Arbitrator may, at any stage

during the proceedings, state a

case for the decision of the High

Court. This would arise where there

is a question of law arising in the

course of the Hearing. This does

not often arise except in compensa-

tion claims under the Planning Acts

where there have been a consider-

ANNUAL

CONFERENC E

1990

Thursday, 3rd May

Sunday, 6th May

1990

HOTEL EUROPE

KILLARNEY

CO. KERRY

" T he Arbitrator may . . . state a

case for the decision of the High

Cou r t ."

able number of cases stated to the

High Court. The decision on

whether or not to state a case is

entirely at the discretion of the

Arbitrator but he can be compelled

by the High Court to state a case.

As a matter of interest I have twice

refused to state a case and been

taken to Court. In both cases the

Court upheld the absolute dis-

cretion of the Arbitrator in deciding

that he did not require the assist-

ance of the Court on the points

raised. Needless to say, the

decision to refuse to state a case

was not taken lightly.

As we have seen, assessment

powers can arise in a wide range of

cases and in default of agreement

will be determined by the Property

Arbitrator. Apart from these cases

the Property Arbitrator also deals

with Planning Compensation,

Stamp Duty Appeals, and Capital

Acquisition Tax Appeals. The com-

mon thread is that all disputes

relate to the valuation of land or

interest in land and related matters

such as disturbance.