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GAZETTE
' APRIL 1990
his status changes, he is no longer
a negotiator but a witness on oath.
There is no room for two standards
here. A lay witness who con-
sciously distorts the facts commits
perjury. In the same way an expert
witness who, from any motive,
states an opinion which he does
not genuinely hold, also commits
perjury.
" . . . the expert witness
differs from the lay witness in
that . . . he is permitted . . . to
include in his evidence the
opinion he has formed
The expert witness will, of
course, have done a lot of home-
work before the actual hearing of
the case. Let us look at what the
valuer for the Local Authority
should do. Firstly, he will inspect
the site armed with a map and will
note all the relevant physical
characteristics. He will check the
zoning with the planning officer
and see whether the land is
affected by road widening or some
such burden. He will arrange that
the engineers check out the
physical development problems. He
will get details of comparable sales,
inspect the properties concerned
and, if at all possible, verify at first
hand the details of the trans-
actions. He will then re-inspect the
site, prepare his valuation and
incorporate his findings and his
conclusions in a Proof of Evidence.
Lastly the expert should get in
touch with his opposite number
and agree as much as possible with
him so that, at the subsequent
hearing, time is not wasted proving
points which are not at issue, i.e.
the cost of a wall is in dispute. It
should be possible to agree the
height and length or even a
" . . . the expert should get in
touch with his opposite
number and agree as much as
possible with him
specification. One important point:
where a dimension or an area or
any ascertainable fact is material to
the case the witness should check
it himself and, if possible, on the
ground. It should be kept in mind
that any step taken in the course of
a job may have to be justified
long
afterwards
to a third party and
that anything written down or left
unrecorded may be exposed to
examination and criticism. He
should never rely on what someone
else has told him, nor should he
assume that a fact is true just
because it is recited in an official
document.
I give you two examples: an
engineer being cross-examined on
drainage problems relating to a
proposed housing development,
being questioned as to why he saw
no problem with drainage when the
Local Authority plan showed clearly
that he could not get into their
sewer because of the invert level.
His reply was that the invert level
was " V " and so was readily
accessible, he had measured it
again yesterday as he felt this was
a matter that might be contro-
versial. On another occasion an
expert witness was asked the date
of the Development Plan from
which he was quoting. He looked
at the front page for the answer
which of course was not there.
Attention to the smallest detail
always pays off.
I referred to the proof of evi-
dence. This is a written statement,
prepared by the witness in advance
of the hearing, of what he intends
to say in the witness box. It is
generally prepared for the informa-
tion of counsel who is to call him,
but in arbitrations it takes the form
of a Precis of Evidence which the
witness will hand to the arbitrator
when he takes the stand, and a
copy will be furnished to the other
side. It should contain all the salient
facts and conclusions and the wit-
ness will have the opportunity of
elaborating on it when giving evi-
ISLE OF MAN & TURKS
8c CAICOS ISLANDS
MESSRS SAMUEL Mc CLEERY
Solicitors, Attorneys-at-Law of the Turks
and Caicos Islands, Registered Legal prac-
ttoners in the Isle of Man of 1 Castle
Street,Castletown, Isle of Man, will be
pleased to accept instructions by their
senior resident partner, Mr. Samuel
MoCleery from Irish Solicitors in the forma-
tion of resident and non-resident I.O.M.
Companies and exempt Turks and Caicos
Island Companies.
Irish Office.
26 South Frederick Street, Dublin 2.
Telephone: 01 -760780 Fax: 01 -764037.
I
.O.M. Office:
Telephone : 0624-822210
Tefex : 628285.
Fax : 0624-823799
London Office:
Telephone : 01 -8317761
Telex : 297100 Fax : 01-8317485.
dence. It serves a number of pur-
poses. It ensures that his Counsel
will know the evidence he is going
to give, and that he does not leave
out anything of importance; it gives
the Arbitrator a record of the main
points of the evidence, without
having to write it all down
laboriously in longhand and it helps
the opposing side to assimilate
quickly what the burden of his
evidence is, and gives them a
record of it. As well as the facts we
referred to before, the Proof should
state clearly the Witness's name,
professional qualifications and
position. It can be very irritating
having to check through docu-
ments some time later in an
attempt to identify otherwise
anonymous reports.
Next we will deal with such
items as maps and photographs. In
the nature of things, during the
course of an Arbitration, the num-
"[An expert witness] should
never rely on what someone
else has told him
ber of maps and plans put in in
evidence tends to proliferate, and
the unfortunate Arbitrator will have
to sort the lot out when he gets
back to his office and starts to sift
the evidence. It goes without say-
ing that any map or plan submitted
should have a title, scale and a
north point. It will be helpful if the
title is also shown so that it is
legible when the map is folded.
Colouring should also be bold and
where possible as much informa-
tion as possible should be shown
on one map e.g. the subject
property outlined boldly in red, road
improvement line in blue, line of
sewer and nearest manhole in
green etc. So often this vital
information will be shown on three
different maps, where for instance
the particular evidence might have
been given by engineers from
different disciplines or depart-
ments.
Some Counsel like to have
numerous photographs put in in
evidence. Normally photographs
are not necessary unless, for in-
stance, in a case where the
premises have been demolished
between the Notice to Treat and
the hearing or a new road built or
some such circumstance. Where
they are put in they should be
numbered on the face of the photo-
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