Ridgeland Properties Ltd v Bristol City Council

This is an appeal against the decision dated 24^th May 2010 of the Upper Tribunal (Lands Chamber), formerly the Lands Tribunal, determining the compensation payable for the compulsory acquisition of the Appellant’s property, Tollgate House, Houlton Street, Bristol, in the sum of £4.5m. There is, in effect, only one ground of appeal: that the Tribunal wrongly refused the Appellant’s application, made following the publication of the Tribunal’s draft decision on 3^rd June 2009, to re-open the hearing in order to permit further evidence to be given of three letters in August 2002 and April 2003 making offers of between £15.3m and £23m for Tollgate House.

Tollgate House, a 19 storey office building, was constructed in 1976 on the north-eastern periphery of Bristol City Centre. It was acquired by the Appellant in August 1999 with the intention of converting it to residential use. It was included in the Bristol City Council (Broadmead Expansion, Bristol) Compulsory Purchase Order 2003 (“the CPO”) which was made by the Respondent on 3^rd November 2003. The Appellant objected to the inclusion of Tollgate House in the CPO. Its objection at the CPO inquiry, which was held in June and July 2004, was unsuccessful. The Inspector recommended that the Secretary of State confirm the CPO without modification. On 18^th May 2005 the Deputy Prime Minister and First Secretary of State confirmed the CPO. On the 11^th August 2005 the Respondent made a General Vesting Declaration in respect of the land authorised to be purchased by the CPO, and it entered upon and took possession of Tollgate House on 13^th September 2005. Tollgate House was subsequently demolished.

The Appellant claimed compensation. The parties were unable to agree the amount of compensation payable, and the Respondent lodged a Notice of Reference with the Lands Tribunal on 9^th August 2007. The Tribunal ordered the parties to prepare a Statement of Agreed Facts and Issues in Dispute (“the Statement of Facts”). Part 4 of the Statement of Facts dealt with the “Basis of Claim.” The valuation date was agreed to be the 13^th September 2005, the date on which the Respondent took possession of Tollgate House (referred to as “the Reference land” in the Statement). Paragraph 4.4 said:

The hearing of the reference took place over 12 days between the 29^th September and 14^th October 2008. Closing Submissions were received by the Tribunal on 4^th November 2008. The Tribunal made accompanied and unaccompanied site visits in November 2008 and January 2009, and on 26^th January 2009 it was provided with the computer software on which the parties’ valuation experts had constructed their residual appraisals, together with the final versions of those appraisals.

On the 3^rd June 2009 the Tribunal, which had by then become the Upper Tribunal (Lands Chamber), issued its draft decision. The parties’ final residual valuations were as follows: The Appellant valued the Claim Scheme at £26m, the Baseline Scheme at £19.65m and the Bristol Scheme at £15.2m; the Respondent’s valuations of these three schemes were nil, nil and £2.4m respectively. In its draft decision the Tribunal valued the Baseline Scheme at £3.25m and the Bristol Scheme at £4.5m. It did not produce a valuation of the Claim Scheme because it concluded that planning permission would probably have been refused for that scheme.

The draft decision is immensely detailed. It extends, with Appendices, to 90 pages. In its Conclusions in paragraphs 292 – 294 the Tribunal said:

On 16^th June 2009 the Appellant’s then Solicitors, Brecher, wrote to the Tribunal enclosing copies of the three offer letters, applying for a hearing to determine whether the Tribunal would be prepared to receive and consider them as fresh evidence for the purpose of reviewing its determination of the compensation payable. By letter dated 1^st July 2009 to the Tribunal the Respondent’s Solicitors objected to the application. The Appellant changed Solicitors.

A detailed “Statement in Support of Application” (“the Supporting Statement”) dated 24^th July 2009, drafted by Mr. Barnes QC and Mr. Lewis was sent to the Tribunal by the Appellant’s new Solicitors, Berwin Leighton Paisner LLP. The Supporting Statement said (and this is accepted by the Respondent) that it was common ground that the Tribunal had jurisdiction to allow the Appellant’s application to adduce further evidence. It then set out the facts. Having acknowledged that the valuation experts of both parties had “proceeded wholly by the residual method of valuation”, the Supporting Statement said in paragraphs 8 – 11

The Supporting Statement referred to a Witness Statement dated 24^th July 2009 of Mr. Luke Comer, Chairman of the Comer Homes Europe Group of which the Appellant is a member. Mr. Comer referred to the offer letters and said in paragraph 6 of the witness statement:

In his letter dated 23^rd July 2009 to Mr. Comer, Mr. Hewetson had said:

Copies of Mr. Comer’s Witness Statement, the three offer letters, recent correspondence with two of the persons who had written the letters (Mr. Ray, the writer of the letter from Wilson Connelly Homes had died), Mr. Hewetson’s letter, and a letter dated 23^rd July 2009 from a newly instructed valuer, Mr. Highwood of Savills, were annexed to the Supporting Statement. In the final paragraph of his letter Mr. Highwood said:

The Supporting Statement said that the principles upon which the Tribunal should exercise its discretion to admit the three offers as new evidence were those summarised by Neuberger J (as he then was) in Charlesworth v Relay Roads Ltd [2000] 1 WLR 230, at page 238 E-H:

The three requirements in Ladd v Marshall [1954] 1WLR 1489 were those stated by Denning LJ at page 1491:

The Supporting Statement recognised that there was a tension in all such applications to adduce fresh evidence, between the Tribunal’s wish to be able to evaluate all the information which could significantly affect its final decision, and the public interest in the finality of litigation. It was submitted that there were ten considerations, some of which pointed in favour of admitting the new evidence and some against, which showed that on balance the Tribunal should exercise its discretion in favour of allowing the three offers to be adduced in evidence.

The first consideration was identified in paragraph 18:

The second consideration was the possible significance of the new evidence. It was submitted that, in principle, the new evidence appeared to be “something of cardinal importance.” The third consideration was the likely time which would be taken up in a resumed hearing. It was submitted that, with written evidence in advance, which would include valuation evidence as to the significance of the three offers, two days should be allowed for cross-examination. The fourth consideration was described in paragraph 22:

The fifth consideration was that, in view of the decision of the Court of Appeal in Stanton v Callaghan [2002] QB 75 the Appellant would not be able to obtain redress in proceedings for professional negligence against its expert valuation witness, Mr. Hewetson. The sixth consideration was the contention that the first Ladd v Marshall condition was difficult to apply on the unusual facts of this case:

The seventh consideration was that the Tribunal, when deciding whether there were exceptional circumstances which justified the reception of fresh evidence after its draft decision, should adopt a more flexible approach than that adopted in ordinary civil litigation, to reflect the fact that compensation was being awarded for the compulsory acquisition of the Appellant’s land in the public interest. The eighth consideration was the nature of the Respondent. As a corporate and public body, it would not be adversely affected in the same way as a private individual litigating at his own expense, by the additional stress of a re-opened hearing. The ninth consideration was costs: the Appellant accepted that it “may well have to pay any additional costs incurred by the fact that the new evidence is considered at a resumed hearing.” The tenth and final consideration was “the sense of injustice and absence of fair play now felt by the Claimant.”

In an order dated 26^th August 2009 the Tribunal refused the application. In its Statement of Reasons for making the order the Tribunal summarised the factual background. It referred to paragraph 1.1 of Schedule 4 to the Statement of Facts (para. 3 above), and to the closing submissions of Mr. Timothy Mould QC on behalf of the Appellant in which he had said:

The Tribunal accepted that it had a discretion to admit the new evidence. Having set out the relevant passages in Charlesworth v Relay Roads Limited and Ladd v Marshall (paras. 12 and 13 above), the Tribunal said in paragraphs 8-11:

The Tribunal’s final decision dated 24^th May 2010 determined the compensation payable to the Appellant for the compulsory acquisition of Tollgate House in the sum of £4.5m. The Tribunal having refused permission to appeal, the Appellant applied for permission from this Court. Although there were seven grounds of appeal, all of those grounds contended that, for various reasons, the Tribunal had wrongly refused to admit the new evidence. Mr. Barnes accepted that this was the sole basis on which the Tribunal’s decision could be challenged. While the Appellant disagreed with the Tribunal’s residual valuation of £4.5m, that disagreement turned, not on any alleged error of law, but upon matters of fact and valuation judgment which were for the Tribunal, not this Court, to determine.

When giving his reasons for granting permission to appeal, Sullivan LJ said:

In response to the second point, Mr. Owen, who was the Respondent’s expert valuation witness at the hearing before the Tribunal, provided a witness statement which explained his knowledge of the three offer letters, and why he did not refer to them before the Tribunal. He said that he was first made aware of the letters in April 2003, during negotiations by Hammerson UK Properties PLC (“Hammersons”) and Land Securities PLC ( who had formed the Bristol Alliance) to acquire Tollgate House by agreement so that its site could be incorporated into the redevelopment scheme which, in due course, underpinned the CPO.

Following a meeting on 1^st April 2003 attended by (amongst others) Mr. Comer and representatives of the Bristol Alliance and the Respondent, at which those present had been unable to agree terms for the acquisition of Tollgate House, Mr. Comer had sent a letter dated 25^th April 2003 to the Hammerson’s representative at the meeting, enclosing the three offer letters. Mr. Comer made it clear in his letter that,

The three letters were also referred to by the Appellant’s witnesses at the CPO inquiry in June and July 2004 in order to demonstrate that there was serious interest in carrying out a residential redevelopment of Tollgate House. The letters were not produced at the inquiry as evidence of value, which would not have been a relevant matter for the Inspector conducting the inquiry. Following the making of the General Vesting Declaration Mr. Owen was responsible for negotiating on behalf of the Respondent the compensation due to the Appellant. The initial claim made on behalf of the Appellant by a Mr. Laing (who thereafter dropped out of the picture) and Mr. Hewetson was based on a residual valuation. At a without prejudice meeting on 5^th June 2006 Mr. Hewetson and Mr.Owen agreed that the residual valuation method was the most appropriate method for valuing Tollgate House, their researches having failed to identify any direct evidence of sales of any comparable building to Tollgate House in the locality at or around the valuation date. The claim was referred to the Lands Tribunal, not because the parties were in dispute as to the valuation method, but because they could not agree upon the many inputs into the residual analysis: the planning assumptions, costs of construction and value of the completed flats. The three letters were not mentioned by Mr. Laing or Mr. Hewetson at any stage in the discussions prior to, or during the hearing before the Tribunal.

Mr. Owen explained in paragraphs 33-35 of his Witness Statement why he did not refer to the letters in his evidence before the Tribunal.

In response to Mr. Owen’s Witness Statement the Appellant produced a Witness Statement of another valuer, Mr. Earl, a partner in Montagu Evans LLP. In paragraph 10 of his Witness Statement Mr. Earl said:

The RICS Practice Statement and Guidance Note (2^nd Edition) for Surveyors acting as Expert Witnesses states that the surveyor’s duty is

Mr. Earl also considered in detail, and refuted, each of the five points relied upon by Mr. Owen as supporting his view that the offers could not be of any conceivable assistance to the Tribunal. In paragraph 34 of his Witness Statement Mr. Earl said that the introduction of the three offers into evidence:

There is no suggestion that in directing itself as to the law the Tribunal misdirected itself either as to the existence of its discretion to admit the new evidence or as to the principles upon which it should exercise that discretion. The Tribunal cited the relevant authorities: Charlesworth v Relay Roads and Ladd v Marshall (paras 12 and 13 above). We will deal with Mr. Barnes’ submission that in one particular respect the Tribunal misunderstood Ladd v Marshall below (paras 45 and 46). Mr Barnes accepted that this was not a case where the relevant considerations all pointed one way: the Tribunal had to balance competing factors. In order to succeed in this Court the Appellant must demonstrate some error of law on the part of the Tribunal. Mr. Barnes recognised that, in a case such as this, where the Tribunal had to balance competing considerations, an Appellant seeking to establish an error of law faced a considerable burden. He accepted that he had to demonstrate either that the Tribunal’s decision was “wholly wrong”, ie. outwith “the generous ambit within which reasonable disagreement is possible” (see per Lord Fraser at p. 652 of G v G (Minors: Custody Appeal) [1985] IWLR 647), or that the Tribunal had failed to have regard to relevant considerations, or had regard to irrelevant ones, when exercising its discretion.

He submitted that the Tribunal’s decision was “wholly wrong” having regard to: (a) the obviously critical importance of the new evidence as a potent indicator of value; (b) the fact that without the new evidence the Tribunal’s decision was likely to breach the principle of equivalence, the basic rule which underlies the assessment of compensation for compulsory acquisition; and (c) the fact that without the further evidence the Tribunal’s valuation would be based on the residual method of valuation which the Tribunal itself described as “a valuation method of last resort”, when evidence of comparable offers was available.

To some extent this submission overlapped with the submission that the Tribunal had failed to take into account three important considerations: (a) the likely cogency and impact of the new evidence if it was admitted; (b) the reasons given by the Appellant for the failure to adduce the evidence at an earlier stage; and (c) the fact that the Respondent also knew of the three offer letters, had a duty to refer to them (if only to explain why they were of no, or no real assistance), but had failed, without any explanation given to the Tribunal, to do so.

Before considering these criticisms of the Tribunal’s reasons for refusing the application it is necessary to establish why the new evidence is said to be of “critical importance”, and what impact the Appellant contends it would have if it was admitted. Why would the new evidence be “significant”? Reading Mr. Earl’s response to Mr. Owen’s Witness Statement, it might be assumed that the new evidence would merely be used as a check on the end figures produced by the Tribunal’s residual valuation. (see para. 29 above). However, Mr. Barnes made it clear in both his Skeleton Argument and his oral submissions that in introducing the new evidence the Appellant would not be trying to re-open argument on the many details of the residual valuations, but on the contrary, would be attempting

In response to questions from the Court Mr. Barnes submitted that remitting the matter to the Tribunal on the basis that the new evidence would simply be used for the purpose of “testing” the Tribunal’s residual valuation would be “the worst of both worlds.” This point did not emerge with any clarity in the Supporting Statement. The Tribunal did not consider it necessary to investigate whether the offers would constitute useful comparable evidence, but it is now clear in our judgment that the offers would not be “useful” comparable evidence unless they were sufficiently cogent to enable the Tribunal to replace the residual method of valuation which, since June 2006, the parties had agreed was the most appropriate method for valuing Tollgate House. We accept the submission of Mr. King QC on behalf of the Respondent that unless there was to be an attempt to re-open the details of the Tribunal’s residual analysis, merely admitting the evidence of the three offer letters would be of no practical use as a check against the Tribunal’s figure of £4.5m. The offers, of between £15.3m and £23m, are so widely divergent from the Tribunal’s figure, and the Tribunal’s figure of £4.5m is so far apart from the Appellant’s residual valuation of £15.2m for the Bristol Scheme, that a complete reworking of the residual analysis would be required if the Tribunal was to accept the offers as cogent evidence of value, but still adhere to the residual method of valuation.

In reality therefore, the only purpose of “testing” the Tribunal’s residual valuation by reference to the offers would be to seek to persuade it to abandon the residual method of valuation altogether and to adopt a wholly new method of valuation, not by reference to comparable sales because it is agreed that there are none, but by reference to the three offers. Whether the three offer letters would be a sufficiently firm foundation for such an alternative approach would be a matter for the Tribunal to assess. For present purposes it is important to appreciate the practical consequences of admitting the new evidence. This is not a case where the new evidence would supplement, reinforce or qualify the evidence already given to the Tribunal. In order to be of any real significance the new evidence would have to supplant that earlier evidence entirely. In effect, permission was not being sought merely for the admission of some new evidence, in support of the Appellant’s residual valuation, permission was being sought for the presentation of a wholly new valuation case which, if successful, would render the earlier residual valuations otiose, and if not, would be of no real assistance in “testing” the validity of those valuation because, on the Appellant’s case, it will not be attempting to re-open the details of the Tribunal’s residual appraisal.

This may well have been in the Tribunal’s mind when it said that it did not consider it necessary to investigate whether the offers would constitute useful comparable evidence, having previously emphasised in paragraphs 2 and 3 of the Statement of Reasons the parties’ agreement, both in the Statement of Facts and in Closing Submissions, that the residual method of valuation was appropriate. Assuming in the Appellant’s favour that this was not in the Tribunal’s mind, and the Tribunal should have considered the potential significance of the new evidence and failed to do so, on considering this issue the Tribunal would have appreciated that what was being sought was permission to advance a wholly new valuation case. Such an application at such a late stage in such lengthy proceedings would require the most cogent justification.

Its is true that the Tribunal did not consider it necessary to enquire why the Appellant did not refer to or adduce the new evidence in its statement of case, or its experts reports, or at or after the hearing at any time prior to the publication of the Tribunal’s draft decision, and that it referred to “The unexplained failure of the claimant to adduce evidence that was available to it at all material times.” Mr. King submitted that this was readily understandable given that the Appellant had said in paragraph 9 of its Supporting Statement, in the passage cited in paragraph 8 of the Tribunal’s reasons, that it did not have “Complete knowledge of why the information was not provided in evidence to the Tribunal” (see para. 8 above).

The Tribunal was not strictly correct in saying that the failure was “unexplained”. An explanation had been provided for the failure to refer to the offers: Mr Comer had told Mr. Hewetson about them, but Mr. Hewetson had forgotten them, and Mr. Comer did not realise this because he had not seen the evidence that was being submitted to the Tribunal by Mr. Hewetson on behalf of the Appellant. Mr. Comer entrusted the conduct of the Appellant’s case to its lawyers and other experts. Mr. King submitted that reading the Tribunal’s reasons as a whole it was clear that it was not impressed by this explanation.

While it might have been better if the Tribunal had acknowledged that an explanation for the failure to refer to the evidence had been given, it is difficult to see how even the most cursory consideration of the adequacy of that explanation could have materially assisted the Appellant. Mr. Barnes fairly conceded that the state of affairs disclosed by Mr. Comer’s witness statement and Mr. Hewetson’s letter dated 23^rd July 2009 was “extraordinary”. On the Appellant’s case, Mr. Hewetson had not simply forgotten a piece of evidence which was relevant to his valuation, he had forgotten evidence which was of “critical importance”, and this was not a momentary lapse of memory: the critically important evidence had been overlooked in negotiations, and the preparation and presentation of evidence over a period of some 3 years from June 2006 to June 2009.

That would be remarkable enough, given Mr. Hewetson’s experience as a valuer, but the Appellant company’s failure to notice this, on its case striking, omission in the evidence that was being presented on its behalf is no less remarkable. The Appellant, and the group of companies of which it is a part, is a professional developer, keenly interested, as demonstrated by Mr. Comer’s letter dated 23^rd April 2003 to Hammersons, in the value of its property portfolio. It had instructed specialist Solicitors, Brecher, and Brecher had instructed leading and junior Counsel, Mr. Mould QC and Mr. Williams, to appear on behalf of the Appellant before the Lands Tribunal. Was there no consultation to discuss the evidence at which a representative of the Appellant, if not Mr. Comer personally, was present to give instructions if required? Were there no reports from Brecher, who knew of the letters, as to what preparations for the hearing before the Tribunal were being made on the Appellant’s behalf? Presumably the Appellant was informed at some stage about the Respondent’s residual valuations. If so, why did the Appellant not respond, as it did to the Tribunal’s draft decision: the figure is absurdly low, look at the offers we received in 2002/3? These, and many other questions, would have had to be answered before the, on the face of it, most unlikely, explanation proffered on behalf of the Appellant could have been accepted as credible. The Tribunal’s disinclination to inquire further into this aspect of the application did not place the Appellant at a disadvantage in the balancing exercise.

When Sullivan LJ granted permission to appeal he was concerned that it was said by the Appellant that the Respondent had known of the offer letters, had failed to mention them to the Tribunal, and had not explained that failure. Mr. Owen has now explained why he did not mention the letters: he did not see that they could be of any conceivable assistance to the Tribunal. Mr. Earl disagrees with Mr. Owen’s view that the letters were of no assistance, and with the five reasons given by Mr. Owen in paragraph 33 of his Witness Statement in support of his view (para. 26 above). However, Mr. Earl has the advantage of hindsight in two important respects. First, he knows Mr. Hewetson’s explanation that he had forgotten about the letters. Mr. Owen’s view that the letters were of no assistance would have been reinforced by the failure of Mr. Hewetson to mention them. Mr. Owen would reasonably have expected Mr. Hewetson to mention any evidence on which he relied, particularly evidence which was of critical importance to his valuation. Mr. Owen did not know that Mr. Hewetson had forgotten about the letters. The obvious explanation for his failure to mention them would have been that he, in agreement with Mr. Owen, did not think that they would assist the Tribunal.

Secondly, when responding to points (i) and (v) in paragraph 33 of Mr. Owen’s Witness Statement – that the offers appeared to have been made on the basis of the scheme underlying the acquisition, and were “mere offer letters”, Mr. Earl is able to refer to the evidence that is now available from Mr. Comer and two of the three letter writers as to the circumstances in which the offers were made: that the letters were genuine, serious, and unsolicited, offers; and that in making the offers either “the prospect of the Broadmead development was immaterial” (Columbia Estates letter dated 17^th July 2009); or “We….. did not consider the immediate surroundings to be influential in any way” (letter dated 16^th July 2009 from Barry Wood, formerly Managing Director of the Bristol Division of Barratt Homes Ltd.).

Although the disputes between Mr. Owen and Mr. Earl turn on matters of valuation, rather than legal, judgment, I would accept that valuers commonly make adjustments to comparable evidence to take account of factors (ii), (iii) and (iv) – the lapse of time between the offers and the valuation date, the planning assumptions on which the offers were based, and the fact that some of the offers were conditional – but factors (i) and (v) are of much greater significance. Any offer which had been based on the scheme underlying the CPO would have had to be disregarded in the “no scheme world” in which the compensation for the acquisition of Tollgate House was being assessed. While the level of value may, to use the words of the RICS guidance, be gauged through analysis of offer prices, one would have to be satisfied that the offers were genuine and unsolicited, and that they were serious, in the sense that there was a real prospect that a sale would be concluded at the offer price because the offeror had carefully considered the basis on which the offer had been made, and would not withdraw on further investigation. As Mr. Earl says in paragraph 32 of his witness statement:

For these reasons, we consider that on analysis, even if there is force in the Appellant’s submission that the Tribunal failed to take the three matters set out in paragraph 32 (above) into account when carrying out the balancing exercise, a detailed consideration of these matters would not have assisted the Appellant’s application to admit the new evidence. Nor is there any basis for concluding that the Tribunal’s decision was “wholly wrong” having regard to factors (a) and (c) (the “critical importance” of the new evidence and the unsatisfactory nature of the residual method of valuation) mentioned in paragraph 31 (above). We will deal with factor (b) – the principle of equivalence – below (para. 48). Before doing so, we will consider the Appellant’s submission that the Tribunal misunderstood the first requirement in Ladd v Marshall.

This submission is, in effect, a repetition of the argument which the Tribunal rejected in paragraph 10 of the Statement of Reasons (see para. 20 above). The submission is that the “reasonable diligence” referred to in the first requirement of Ladd v Marshall is the reasonable diligence of the party who is prejudiced by the evidence not being put before the Court or Tribunal. A party to litigation acts with due diligence if he instructs a competent expert witness to give evidence on his behalf, assists the witness in every way he can, such as by providing the expert with all relevant facts and information, and allows the expert to discharge his duty to the Court or Tribunal. If the expert then fails to mention a particular piece of evidence, it does not mean that the party has failed to exercise “due diligence” to obtain the evidence for use at the trial.

We readily accept the Appellant’s submission that it is difficult to fit the unusual facts of this case within the first Ladd v Marshall requirement, but we do not consider that this assists the Appellant. In this case the evidence had been obtained. It could have been used at the trial. According to the Appellant, the only reason it was not used is that its expert witness, Mr. Hewetson, forgot about it. It is unnecessary to decide whether it is appropriate, as a matter of principle, to draw a distinction between the “reasonable diligence” of a litigant and the diligence of his expert witnesses. Even if it is assumed that such a distinction can, in principle, be drawn, this Appellant did not act with “reasonable diligence” on the facts of this case. Mr. Comer explains in his Witness Statement that although he is not a qualified valuer, he has spent his “career buying and selling property.” The Appellant is a development company. Mr. Hewetson was not presenting his evidence in a vacuum. Preparation of the Appellant’s evidence for the Tribunal hearing must necessarily have involved a certain amount of teamwork, with contributions from the Appellant, Mr. Hewetson, Brecher, Mr. Mould QC and Mr. Williams. In these circumstances Mr. Comer’s failure to even look at the evidence that was being submitted on behalf of a company in a group of which he is Chairman could not be described as diligent. If he was unable to look at the evidence himself, because he was frequently abroad on business, then he should have arranged for another director or employee of the Appellant to do so. The short answer to the submission that the Tribunal misunderstood the first condition in Ladd v Marshall is that, however that condition is understood, the Appellant, and not simply Mr. Hewetson, failed to show due diligence.

If that is wrong, and Mr. Hewetson alone, or perhaps Mr. Hewetson and Brecher, failed to show “reasonable diligence”, then the fifth consideration mentioned in the Supporting Statement – the Appellant’s ability or inability to obtain redress in proceedings for professional negligence against Mr. Hewetson and/or Brecher – is of particular relevance. In Jones v Kaney [2011] UKSC 13, [2011] 2WLR 823 the Supreme Court overruled Stanton v Callaghan [2000] QB 75 and decided that the immunity from suit for breach of duty enjoyed by expert witnesses in relation to their participation in legal proceedings should be abolished. In our judgment, the ability of the Appellant to obtain redress from Mr. Hewetson and/or Brecher if its explanation for the failure to refer to the three offers is correct is a powerful reason, which the Tribunal was not able to take into account, for not permitting the Appellant to mount an entirely new valuation case before the Tribunal.

Was the Tribunal’s determination “wholly wrong” because the new evidence demonstrates that the Tribunal’s award is likely to amount to a breach of the principle of equivalence? As Sullivan LJ observed when granting permission to appeal (para. 22 above) there is a public interest in ensuring that the correct amount of compensation (no more and no less) is paid by an authority acquiring land under compulsory powers. The Tribunal would have been well aware of the importance of the principle of equivalence. It can be forgiven for not expressly referring to it in its Statement of Reasons, because it was not, in terms, one of the ten considerations relied upon in the Supporting Statement. The tenth condition emphasised the Appellant’s sense of injustice and lack of fair play. The Tribunal said that it had considered all of the other arguments put forward by the parties but none of them outweighed the failure to adduce evidence that was available to the Appellant at all material times. In our judgment, the Tribunal was entitled to strike the balance in that way. When the Appellant’s criticisms of the Tribunal’s reasoning are analysed on the basis of the material now before the Court, that analysis persuades us that, for the reasons set out above, the Tribunal’s decision to refuse the application to admit the new evidence was correct. It could not sensibly be described as “wholly wrong.”

For the sake of completeness we should mention that Mr. Barnes also submitted that the Tribunal’s decision not to admit the evidence was in breach of the Appellant’s rights under Article 1 of the First Protocol to, and Article 6 of, the European Convention on Human Rights, and in breach of the overriding objective which requires the Tribunal to deal with cases justly. We do not consider that either the Convention or the overriding objective add anything of substance to this appeal. The application of the principles set out in Charlesworth v Relay Roads and Ladd v Marshall was the best, indeed on the authorities the only, way of ensuring that the overriding objective and the procedural requirements of Article 6 were complied with. There has been no breach of Article 1 of the First Protocol. The Appellant was deprived of its property in the public interest. It was entitled to compensation for the open market value of that property in the “no scheme” world. After a lengthy hearing an independent Tribunal determined that value on the basis of a method of valuation agreed by the Appellant. What the Appellant was, in reality, seeking in its application to admit the new evidence, was a “second bite at the cherry”: an opportunity to put forward a new valuation based on a different valuation method. Article 1 does not confer such a right. Insofar as the Appellant’s failure to advance the new valuation at an earlier stage was not its responsibility, but was due to some error or omission on the part of its professional advisors, it has a remedy against these advisors.

For the reasons set out above, this appeal is dismissed.