The Gazette 1990

GAZETTE

' APRIL 1990

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-

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

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-

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.

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