1. Diploma in Arbitration Evidence
Paul Jensen FRICS FCIArb Barrister
Paul Jensen Associates

2. Rules of Evidence Application to: The Court Arbitration – S.34 (2) (f)
Adjudication (as applicable)
Definition:
Evidence is material which tends to persuade the tribunal of the truth of the facts.
Note: The Tribunal’s task is not to find the truth but to make a decision based on the evidence presented.

3. Burden of Proof:
He who alleges must prove
The Claimant would lose if the tribunal is not persuaded either way
Standard of Proof:
The degree of persuasiveness which must be attained
In civil cases – the balance of probabilities

4. Types of Evidence Oral – Including written witness statements
Documentary – That is anything in which information is recorded. Includes photographs, audio or video recordings, software and hardware
Real - That is perceived by the Tribunal’s own senses, eg, witness demeanour, building site, certificates, instructions and notices

5. Admissibility of Evidence
Must be:
Relevant
Not excluded by any evidential rules
Relevant means logically probative

6. Exclusionary Rules Similar Fact Evidence
R-v-Smith (1915) – The Brides in the bath case
Admissable if logically prohibitive and not oppressive to the other party
Mood Music Publishing Co Ltd v - de Wolfe Ltd (1976)

7. The Parole Evidence Rule
Extrinsic evidence is not admissible to add to or vary the terms of a contract
Exceptions:
Validity of the document, eg. Fraud, forgery, duress, undue influence, mistake
Absence of illegality of consideration

8. The Parole Evidence Rule (2)
The real nature of the contract
Capacity of the parties
Collateral contracts and oral terms
Variation or discharge
Trade usage or custom or technical terms or parties own dictionary
To show connection with other documents comprising the contract if one refers to the other

9. Expert Evidence
Admissible only where the subject is one for which the competence to form an opinion can only be acquired by special study or experience.
The evidence, not the expert, must be independent.
Expert reports stand as evidence in chief
Experts to meet – preferable before the report

10. Expert Evidence (2) Meetings are without prejudice
No authority to settle issues

11. Opinion of Witnesses as to Fact
Admissible of what the witness perceived if given as a way to convey perceived facts (CEA 1972 – S.3(2))
That is opinion inferred from observed facts is admissible where it is virtually impossible where it is virtually impossible to separate the influences from the facts on which they are based.
eg Identification, age, speed

12. Arbitrator’s Expertise
An arbitrator has expertise to enable him to understand the evidence not to supplement the need for expert evidence.
An arbitrator must not use expert knowledge to provide evidence unless he:
Informs the parties of it
Affords the opportunity for further evidence and/or submissions

13. Arbitrator’s Expertise (2)
Fox-v-PG Welfare Ltd (1981)
Top Shop-v-Danino (1985)
Arbitrator made pavement count for shop rents. The Court said the arbitrator was not to be Perry Mason!
The award was set aside.

14. Judicial Notice
Knowledge attributed by law to judicial persons and includes:
Notorious facts
Knowledge acquired after enquiry
Knowledge of the law and constitution
McQuaker-v-Goddard (CA) (1940)
The Court took judicial notice that camels are domestic animals

15. Privilege Public Policy
Evidence which could seriously affect the security of the state or impair the good administration of affairs is privileged.
Legal Professional Privilege
Communications between client and legal advisor given in a legal capacity are privileged

16. Privilege
Communications between the client or legal advisor on the one hand and third parties on the other hand are privileged only if the dominant purpose is in contemplation of arbitration or litigation
(Waugh-v-British Railways (1980))
Note: Three Rivers District Council-v-The Bank of England (CA) (2003)
Privilege does not extend to documents communicated to a solicitor for advice to be given to them

17. Without Prejudice Communications
Must be:
With intent to settle
The words ‘without prejudice’ not necessary
Consent of both parties necessary to waive privilege
Self Incrimination
Such statements are privileged (CEA 1968 S.14)

18. Hearsay Evidence Civil Evidence Act 1995
Application – S11 – any tribunal where the strict rules of evidence apply by law or by agreement
Definition:
‘Hearsay’ means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and
Includes hearsay of any degree S.1 – evidence shall not be excluded on the ground that it is hearsay

19. Notice Requirements The Requirements include: Identifying the Evidence
Giving the reason where the maker is not being called
Providing a copy of any document upon request

20. What if No Notice?
Still admissible as of right but: may be taken into account
In respect of the course of proceedings and costs: and
As adversely affecting the weight
Cross-Examination
The other party may, with leave, call and cross examine the other witness

21. Weighting of Hearsay Evidence
Regard to be had to any circumstances and in particualar to:
Reasonable to call the maker?
Made contemporaneously?
Multiple hearsay?
Motive to conceal or misrepresent?
Edited or made in collaboration?
Circumstances suggest an attempt to prevent proper evaluation?

22. Questions?
w: rics.org/drs e:
t: +44 (0)