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-

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" 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.

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