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Jeremy's Blog 18th June 2020: Towards Better Arbitration

19 June 2020

 

This article by Jeremy Moody first appeared in the CAAV e-Briefing of 18th June 2020

The Agriculture Bill, moving to its Committee stage in the House of Lords, means that the CAAV is working to be ready for the President’s role as a statutory appointer of arbitrators under the 1986 and 1995 Acts.  That work is also looking more broadly at all forms of dispute resolution, with a wider application than tenancies and across the United Kingdom.  The aim is a service to the rural economy that will enhance what agricultural valuers can do to achieve better answers for their clients.

From Inheritance Tax cases and direct payments to tenancy and planning issues, agricultural valuers are needed to assist clients on a path that can lead from an initial issue through negotiation to full blown dispute resolution, whether arbitration, expert determination, tribunal or court and with or without mediation.  All stages need facts assembled and analysed for effective arguments to be developed.    

This is not only about “dispute resolvers” – whether arbitrators, experts or mediators.  Much more professional work is involved in advising, acting for and representing clients throughout that path from negotiation to resolution.   Competence and confidence in that are as substantial a service as having good arbitrators. 

Many will feel their real successes were in achieving a good answer without a dispute, through careful preparation, realistic assessment and good presentation.  However, where a dispute arises, a well-prepared case with good evidence, drafted so that an independent third party has the material to be able to find for the client, is more likely to succeed.  The Charnley IHT case showed that a good argument (he was “farming the land using my animals”) backed by solid evidence, there from witnesses of fact, will count.

The expert witness is a privileged and responsible central figure in this process; privileged because evidence is normally limited to facts, not opinions, and responsible with the expert’s duty to provide professional opinion founded on skill and experience to the tribunal and the process, not the client.  

Recent cases have shone a spotlight on this role.  Better reported ones, such as Carr v Evelyn where the expert’s role was penalised with indemnity costs, highlight failure.  Others, more quietly as in Stubbins, see a CAAV Fellow tested by “rigorous” examination give “accurate” and “appropriate” assistance to the court.   We see the courts setting a professional standard for a professional job and members able to fulfil that.

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