The Gazette 1990

GAZETTE

' APRIL 1 9 90

of committing perjury, it is very

often in his client's interest that he

should not seek to conceal some

material fact because it could be

damaging to his case. It can be a

far better tactic for the witness to

disclose such a fact, state clearly

"The witness should

remember that he has sworn

to tell the whole truth . . . "

that he has taken it into account,

on the assumption that he has, and

why he thinks it should be given no

more weight than he has given it.

Remember that it is the witness's

duty to tell the full truth, but the

weight he attaches to various

aspects is a matter of professional

judgement. Sometimes a witness

will deliberately exaggerate what

he has to say in the mistaken belief

that he is helping his client's case.

This, of course does not accord

with the oath which he has taken,

and quite apart from that, it over-

looks the fact that the Arbitrator,

because of his technical know-

ledge, is well qualified to evaluate

the evidence. Where it is clear to

the Arbitrator that the witness is

exaggerating, he has to decide

whether the witness is misguided

or dishonest. At all event it will raise

a query in the Arbitrator's mind as

to what reliance can be placed on

the evidence and clearly this does

not help the client's case.

It is important to remember that

the purpose of the expert wit-

nesses' evidence is to provide the

Arbitrator with the fact and expert

opinion on which he can make his

decision. As I mentioned before,

the Arbitrator makes a longhand

record of the principle points of

evidence. Therefore, it is essential

that the witness speak clearly and

does not rush. It is useful when

giving evidence to keep an eye on

the Arbitrator's notebook and if he

is writing furiously, pause until he

is ready.

It is essential to remain calm

during cross-examination. When

asked a question, the witness need

not be in too much of a hurry to

reply. He sould take his time, if he

wants to think, but in the meantime

remain silent, because it is easier to

think that way. The interval

between Counsel's question and

the Witnesses' answer will not

seem so long to the Arbitrator as it

may to him. If he is self conscious

about the delay he can always

begin with a brief apology "I am

sorry for taking so long to reply to

your question but I wanted to be

quite sure that my answer was

accurate". He should resist the

temptation to score off Counsel

with a smart reply to his questions.

A witness may get away with this

when it is done with obvious good

humour or when he and Counsel

know one another reasonably well.

Otherwise, bear in mind that

Counsel may be much more pro-

ficient at that game, and if he is so

minded, the witness may end up

getting much the worse of the

contest.

The expert witness should recog-

nise his professional limitations and

admit them. He should not be afraid

to admit that some matter may be

outside his professional compet-

ence, either because it is outside

his particular field or because he

does not have adequate experience

in the particular area. Above all, he

"The expert witness should

recognise his professions!

limitations and admit them."

must not think that because he is

giving evidence as an expert he

must appear to be infallible. If he

makes an error he should admit it,

not compound it by seeking to

justify it. Remember that the expert

witness has no monopoly of

knowledge, he can be wrong or

make a mistake like anybody else,

the main difference being that

when he is wrong it is generally for

more sophisticated reasons.

It sometimes happens that due

perhaps to nervousness or in the

cut and thrust of cross-examination

a witness may be led into saying

something which on reflection he

recognises is not precisely true or

could be misleading. He should not

be afraid to mention that to his

Counsel and ask that the matter be

put right. Certainly nobody will

think the worse of him doing so,

and it will give an indication that he

is both conscientious and honest.

I consider it essential that the

various engineers, architect, valuer

and solicitor should have a briefing,

with Counsel, should one be re-

tained, well in advance of the

actual hearing. This will give an

opportunity to co-ordinate the

evidence to be presented and to

consider the strengths and weak-

nesses of the case to be presented.

I would like to make a particular

point. Sometimes an expert

witness will feel a conflict of

loyalties between the interest of his

client or employer on the one hand,

and the interest of truth on the

other. For example, questions re-

garding the capacity of a sewer to

take additional drainage could be of

great significance in assessing the

value of a parcel of land being

acquired and the temptation for the

Local Authority Expert to give an

answer which will favour the

Acquiring Authority is obvious. It

can take courage in a situation like

that to tell the whole truth, par-

ticularly when there are pressures,

real or imagined, to perhaps, bend

the truth a little. But really there

should be no conflict of loyalties.

Once the witness has entered the

witness box, his duty, like that of

any witness, is clear enough. The

opinion of an expert witness,

whether on value or cost, or sewer

capacity, is the same opinion

irrespective of the party who called

him. Once in the witness box he

must be completely objective: the

effect of his evidence on the

Arbitration, and the extent to which

his opinion may appear to favour

one side or the other, is irrelevant.

I have dealt with the origins of

compulsory purchase and the

Arbitration process at some length.

The actual assessment of com-

penstaion is another matter which

could be the subject of a lecture in

its own right. It is really a matter of

preparing a much more detailed

valuation within the framework of

the legislation contained in the

Lands Clauses Act 1845, the

Acquisition of Land (Assessment of

Compensation) Act 1919, the Local

Government

(Planning

and

Development) Act 1963 and the

Housing Act 1966.

There are there four main

headings to be considered:

(1) Value of Land.

(2) Damage due to Severance.

(3) Damage due to Other Injurious

Affection.

(4) Disturbance and other matters.

I can do no better than quote

from two of the major decisions in

Compulsory Purchase.

Scott L. J. in

Horn -v- Sunderland

Corporation

(1941): the owner

compelled to sell has "the right to

(Contd. on p.96)