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)

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