The Gazette 1990

GAZETTE

APRIL 1990

It follows that the expert witness

will be drawn from the Disciplines

dealing with land and structures

e.g. Architects, Engineers, Planners

and Valuers. Accountants and

Agricultural Experts will also be

called in for Expert Evidence in

appropriate cases.

The arbitration hearing itself is

like a hearing in Court. It is open to

the public and while it is essential

to maintain a reasonable degree of

formality, the atmosphere will not

be nearly so inhibiting as it can be

in court. Except in small cases,

both parties will be represented by

counsel with their instructing

solicitors. Ideally, the venue should

be a neutral one, to allay the sus-

picions which perhaps some

claimants have that the Arbitration

might not be impartial. In Dublin,

most cases are now heard in the

R.I.C.S. at 5, Wilton Place or at the

Incorporated Law Society Head-

quarters in Blackhall Place.

However, outside Dublin the local

Courthouse or Council Chamber is

generally an acceptable venue and

indeed is very often the only suit-

able one in the locality.

The room will normally be laid

out for the hearing as for, say, a

board meeting. The Arbitrator will

occupy the chairman's position and

the opposing parties will face one

another across the table. It is

essential that the top table should

be big enough to take any docu-

ments or maps which will be

produced in evidence, and that

there will be space for the wit-

nesses to sit and handle their

documentation.

Before the case commences, the

Arbitrator may know a certain

amount of what is in dispute. He

will know the type of case, he may

know how much land is involved

and its location, and he should have

seen a copy of the claim, assuming

one was submitted. Clearly he re-

quires considerably more informa-

tion before he can begin to assess

the case. The first function of the

expert witness is to provide the

technical facts and information

which the Arbitrator needs; being

an expert he can make logical de-

ductions from the facts he

presents, and, based on these

"The first function of the

expert Witness it to provide

the technical facts and

information which the

Arbitrator needs;

deductions, he can arrive at a

conclusion.

For instance take a five acre field

on the outskirts of a provincial

town, what facts will the Artibrator

require? Firstly, he will want to

know the claimants title, the

location of the property, access to

roads, configuration, whether it can

be serviced and at what cost. He

will want to know if it can be

developed and if so whether

development will cost more than

normal due to the nature of the

subsoil or similar problems. Next,

he will want to know what demand

there is for development land in

that particular area, what sales can

be offered as evidence of com-

parable value, and whether the

comparisons put forward have any

characteristics of which he should

be aware to evaluate their rele-

vance.

The engineer should be able to

deal with most of the first points

regarding the physical character-

istics of the land and, based on his

firsthand factual knowledge, he

should be able to give his expert

opinion that the land can, or can-

not, be developed as the case may

be. Armed with this information,

the valuer should be able to give his

expert opinion as to whether or not

there will be a market for the land

and conclude that its market value

is X pounds.

In describing the location and

configuration it should be borne in

mind that the Arbitrator may only

have a very superficial knowledge

of the general area. Therefore it

should be described in detail i.e. the

site is x miles from the town of Nod

on the road leading to Zed, it is on

the North (right) as you leave the

town, it is easily identified as it lies

between the graveyard and the

creamery.

As you know, the expert witness

differs from the lay witness in that,

because of his professional training

and experience, he is permitted,

unlike the lay witness, to include in

his evidence the opinion he has

formed and the conclusions he has

drawn.

Before he begins his evidence he

will take an Oath or Affirm. The

form of Oath is as follows: "I swear

to Almighty God that my evidence

to this Arbitration shall be the truth,

the whole truth and nothing but the

truth". This solemn undertaking

must be observed as strictly by an

expert witness as by a lay witness.

If, for instance, he is a valuer it is

probable that there were negotia-

tions before the parties decided to

go to arbitration. These negotia-

tions may have taken the form of

bargaining by the valuers, where

they quite legitimately inflated or

deflated the figures, which they

proposed as a basis for settlement,

in the hope of achieving a fair

compromise. But once that valuer

enters the witness box as an expert

Doyle Court Reporters

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