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 Principal: Áine O'Farrell

Court and Conference Verbatim Reporting Specialists in Overnight Transcription . 2, Arran Quay, Dublin 7. Tel: 7 2 2 8 33 or 8 6 2 0 97 (After Hours) Tjeettence in 'Reporting since 1954

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