Neutral Citation Number: [2011] EWCA Civ 649

Case No: C3/2010/1975
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
THE UPPER TRIBUNAL (LANDS CHAMBER)
ACQ/447/2007
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/05/2011
Before:

THE PRESIDENT OF THE QUEENS BENCH DIVISION
LORD JUSTICE SULLIVAN
and
LORD JUSTICE TOMLINSON
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Between:

	Ridgeland Properties Limited	Appellant	
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	Bristol City Council	Respondent	

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Michael Barnes QC and Robert Lewis (instructed by Berwin Leighton Paisner LLP) for the Appellant
Neil King QC and Rupert Warren (instructed by Ashurst LLP) for the Respondent

Hearing date: 18th April 2011
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Approved Judgment

Lord Justice Sullivan : 
This is the judgment of the Court written by Sullivan LJ

Introduction

1.	This is an appeal against the decision dated 24th 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 3rd 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.
Factual Background
2.	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 3rd 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 18th May 2005 the Deputy Prime Minister and First Secretary of State confirmed the CPO.  On the 11th 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 13th September 2005.  Tollgate House was subsequently demolished.
3.	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 9th 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 13th 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 parties agree that sections 14 to 16 of the Land Compensation Act 1961 are relevant to the assessment of compensation in this case and that it should be assumed that planning permission would have been granted for a scheme of redevelopment of the Reference Land.”
Part 5 of the Statement of Facts described the three schemes of redevelopment which the parties agreed should be considered, for the purposes of valuation, by the Tribunal.  They were the “Claim Scheme”, the “Baseline Scheme” and the “Bristol Scheme”.  Under the sub-heading “Office Conversion” paragraph 6.1 said:
“The parties agree that the value of the Reference Land for one of the Three Schemes exceeds its value based on use as offices either in its actual condition or following a scheme of renovation.”
         Part 11 of the Statement of Facts dealt with “Valuation Issues” as follows:
“The matters that are agreed and the issues that are in dispute between the parties in respect of valuation are summarised in Schedule 4 to the Statement.  Save as set out in Schedule 4, there is no formal agreement of the valuation issues.
Scott Schedules showing the comparative valuation assumptions of the parties in respect of each of the Three Schemes are set out in Appendices 7, 8 and 9 of this statement.”
           Under the sub-heading “Methodology”, paragraph 1.1 of Schedule 4 said:
“It is agreed that the Reference Land is to be valued on the residual valuation basis.  The parties have both carried out their valuation using Circle Developer, a computer based programme.”
4.	The hearing of the reference took place over 12 days between the 29th September and 14th October 2008.  Closing Submissions were received by the Tribunal on 4th November 2008.  The Tribunal made accompanied and unaccompanied site visits in November 2008 and January 2009, and on 26th 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.
5.	On the 3rd 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.
6.	The draft decision is immensely detailed.  It extends, with Appendices, to 90 pages.  In its Conclusions in paragraphs 292 – 294 the Tribunal said:
“292. We have found that the value of the Bristol Scheme is £1.25m more than that of the Baseline Scheme.  We therefore agree with Mr. Owen [the Respondent’s valuation expert] that the Bristol Scheme is the most viable, although we disagree with him that the Baseline Scheme shows a negative value.  This is a significant difference and, in our opinion, the extra value attaches to a scheme which is inherently less risky as well as being cheaper and quicker to build.  Given these figures we do not believe that a developer would have based his bid upon the Baseline Scheme specification as at the valuation date.  The claimant did not devote much evidence to the assessment of the value of the Bristol Scheme but we are satisfied, having had to examine the Baseline Scheme in exhaustive, and at times minute, detail that our conclusion is based upon a rigorous and complete analysis of all the available evidence.
293. Finally we would draw the parties’ attention, as we did several times during the hearing, to the need to consider pragmatically and sensibly how much information a developer would expect and require in order to formulate an open market bid at the valuation date using the residual method of valuation.  This Tribunal has repeatedly stressed its reluctance to use this valuation method.  Its enforced use in this reference does not mean that its faults are any the less; it remains a valuation method of last resort which is inherently very sensitive to even small changes in the input variables.  We have therefore had to spend what we consider to be a disproportionate amount of time in assessing the detail of the parties’ arguments in order to ensure the robustness of our decision.  We have acknowledged the reasons why the parties felt it was necessary to go into such detail (see for instance paragraphs 47 and 94 above), but we were not helped in our task by the seeming inability of the parties to agree upon a common approach to some aspects of the costing and valuation processes; for example Mr Hewetson [the Appellant’s valuation expert] valued each scheme by capitalising the residential element either as units (penthouses) or as floors (flats) whilst Mr Owen valued it by reference to area.  Such differences were time consuming to check and were, in our opinion, unnecessary.  On future occasions we would hope that the respective experts of all disciplines in a reference such as this will be able to agree upon a larger number of variables at an earlier stage without, as here, pursuing an attritional battle of details which descended to the farcical level of the council specifying the cost of, inter alia, shaver sockets on a scheme costing over £40m.  We understand that the President has it in mind to issue practice guidance designed to ensure that, in future, disproportionate demands area not placed upon the Tribunal’s resources in cases such as this.
294. We determine the compensation payable in the sum of £4,500,000.  The parties are now invited to make submissions on costs, and a letter relating to this accompanies this decision, which will only become final when the question of costs has been determined.”
7.	On 16th 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 1st July 2009 to the Tribunal the Respondent’s Solicitors objected to the application.  The Appellant changed Solicitors. 
The Supporting Statement
8.	A detailed “Statement in Support of Application” (“the Supporting Statement”) dated 24th 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
“8. In fact there existed what the Claimant contend is valuable comparable evidence by way of three offers made for the Claimant’s interest in Tollgate House in the period 2002-2003.  The valuation date was 13 September 2005.  In summary the offers were as follows.
(i) On 7 August 2002 Wilson Connolly Home Counties made a                written offer to purchase the freehold interest of the Claimant in Tollgate House for £19.5 million.  The offer was subject to contract and subject to agreed terms of deferment of capital payment, etc.
(ii) On 12 August 2002 Columbia Estates made two alternative written offers to the Claimant to acquire the Claimant’s interest, namely (a) £15,300,000 unconditionally and (b) £23 million conditional upon a satisfactory planning consent being granted as per the documents submitted to the offeror.
(iii) On 16 April 2003 Barratt made two alternative written offers to purchase the Claimant’s interest, namely (a) £21 million subject to planning permission being granted for a scheme as then designed and submitted and (b) £20 million subject to planning permission being granted for a reduced scheme providing 170,000 sq. ft. net saleable floor area equating to 250 flats.
9. The Claimant, Ridgeland Properties Limited, are a company within the Comer Homes Group, a developer of luxury homes throughout the United Kingdom and Europe.  Mr. Luke Comer is a director of the Group and was the recipient of the three letters just mentioned.  Obviously the three letters were known to the Claimant’s company.  Information on them was made available to the Claimant’s valuation witness, Mr. Hewetson, and to their Solicitors, Brecher.  Save as is mentioned in this document the Claimant do not currently have complete knowledge of why the information was not provided in evidence to the Tribunal.
10. Since the decision of the Tribunal on 3 June 2009 the Claimant, through their current Solicitors, Berwin Leighton Paisner, have sought to ascertain from the Claimant’s representatives at the hearing why the evidence of the offers was not put before the Tribunal.  The obvious concern of the Claimant is that the compensation has been determined, subject to any reconsideration as now sought, at £4.5 million when four offers for the property for a residential conversion had been obtained in the range of £19.5 million to £23 million (together with an unconditional offer of £15.3 million based on a fallback position of the continued use of the building for office purposes). The investigation is ongoing, although understandably certain of the former representatives of the Claimant may be concerned as to their own position in relation to professional negligence claims.  To date the following information has been obtained.
(i) Counsel representing the Claimant, Mr. Timothy Mould QC and Mr. Guy Williams, were not aware of the offers.
(ii)  Mr Hewetson was aware of the offers.  He states that he recalls being told of them but forgot or overlooked them when preparing and giving his evidence.
(iii) The Claimant have raised the matter with Brecher but at present have no information from this source.
It is undesirable that an application of the present nature should drag on and for that reason we have set ourselves a timescale of providing a full statement of the grounds of the application by today (24 July 2009), and for that reason we can only do our best to provide full factual information where we are dependent on responses from others.
11. The offers were also known to the Acquiring Authority.  Indeed Ashurst have pointed out that at the inquiry into objections to the compulsory purchase order they were put in evidence.  The Acquiring Authority relied on “the Bristol Scheme” as the only scheme which in their view would have obtained a planning permission and provided a positive value, a value which they put at £1,909,789.  However, for reasons which we do not know they also chose not to refer in evidence to the three offers in the region of £15.3 million to £23 million.”
9.	The Supporting Statement referred to a Witness Statement dated 24th 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:
“As soon as I learned of the Tribunal’s decision I spoke to Mr. James Hewetson of Matthews and Goodman, Chartered Surveyors, who had appeared for Ridgeland to give valuation evidence before the Tribunal. I asked him how the compensation could possibly have been assessed at so low a figure given the existence of these offers.  He told me that although he was aware of the letters in 2002/2003 he had not included them in this evidence and that they had not been put before the Tribunal.  I was extremely surprised to hear this.  The letters were important.  I had assumed that they had been part of Ridgeland’s case.  It is clear from Mr. Hewetson’s subsequent letter to me (attached as Appendix 2) that the explanation for the omission is that the letters were simply forgotten.  Running a large group of property development companies I had not been actively involved in the case and had not seen the evidence that had been submitted on Ridgeland’s behalf.  I am frequently abroad on business and I entrusted the conduct of the case to our lawyers and other experts.”
10.	In his letter dated 23rd July 2009 to Mr. Comer, Mr. Hewetson had said:
“I do of course now recall you receiving those offers in 2002/2003, although I could not be sure that I ever had copies of them, but I would have to say that until you raised the question after receipt of the Tribunal’s Award, I had not given them any thought or consideration.
After I was reminded of their existence, and shown copies of them, I did comment that in my opinion, the Tribunal would expect to see additional commentary from the offerors to support their validity.  I understand that you have now received just such endorsement from the two remaining parties still able to give you that support.
It is of course fair to say that those offers lend complete support to the valuation I prepared in January 2002, and if I had been reminded of their existence in the preparation of the case to the Tribunal, I would have felt that they demonstrated considerable support for my valuations, even though they had been prepared some years earlier, under a different social housing regime.  In that interim period, values would be expected to have moved on, and those offers to have increased, despite the alterations to social housing policy, and there is no reason therefore why they would have undermined the valuations I presented.
In my cross-examination, I was asked what sort of buyer would have been interested in the Tollgate House site, and I cannot now recall whether I mentioned Wilson Connolly or Barratt as one of the likely parties.  If I had seen or recalled the offer letters they had written, I would certainly have made a reference to them, as it would have given clear support for our approach.”
11.	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 23rd 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:
“Considered both separately and together these offers are hard primary evidence of the market in Bristol at the time that they were written.  They constitute the first step in arriving at a valuation of the property, and any valuer would see them as such.  In my view there is no doubt that they have more probative force than a valuation arrived at by the residual method which is inherently vulnerable to a wide range of hypothetical variables.”
12.	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:
“In these circumstances, I conclude that the following principles apply where a party is seeking to call fresh evidence on a new point after judgment has been given but before the order has been drawn up: (1) the court has jurisdiction to grant an application to amend the pleadings to raise new points and/or to call fresh evidence and/or to hear fresh argument; (2) the court must clearly exercise its discretion in relation to such an application in a way best designed to achieve justice; (3) the general rules relating to amendment apply so that: (a) while it is no doubt desirable in general that litigants should be permitted to take any reasonably arguable point, it should by no means be assumed that the court will accede to an application merely because the other party can, in financial terms, be compensated in costs; (b) as with any other application for leave to amend, consideration must be given to anxieties and legitimate expectations of the other party, the efficient conduct of litigation, and the inconvenience caused to other litigants; (4) quite apart from, and over and above, those principles, because it is inherently contrary to the public interest and unfair on the other side that an unsuccessful party should be able to raise new points or call fresh evidence after a full and final judgment has been given against him, it would generally require an exceptional case before the court was prepared to accede to an application where the applicant could not satisfy the three requirements in Ladd v Marshall; (5) almost inevitably, each case will have particular features which the court will think it right to take into account when deciding how to dispose of the application before it; (6) the court should be astute to discourage applications which involve parties seeking to put in late evidence, but cases where new evidence is found after judgment is given and before the order is drawn up will be comparatively rare.”
13.	The three requirements in Ladd v Marshall [1954] 1WLR 1489 were those stated by Denning LJ at page 1491:
“First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
14.	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.
15.	The first consideration was identified in paragraph 18:
“We mention as the first consideration a matter which is against us.  It is that the information on the offers was available to the Claimant before and at the hearing.  This situation is in contrast to a case where evidence was not available, and could not have been ascertained by reasonable diligence, at the hearing, in which event the case for allowing it to be presented later when it is ascertained is obviously that much stronger.  Even so this is not a case in which evidence was deliberately not produced for some tactical or other reason.  The fact is that the Claimant as a company wished and expected that the evidence would be adduced.  They still do not fully understand why the evidence was not presented by their professional representatives even though (as explained in paragraph 10 above) they have made efforts to secure an answer to this question.  The best explanation which at present we have is that the Claimant’s valuation witness, Mr. Hewetson, simply forgot about the offers.”
16.	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 fourth consideration is that the offers were known to the Council before and at the hearing.  As Ashurst have pointed out in their letter to the Tribunal of 1 July 2009 copies of the letters were sent by Mr. Luke Comer to the Council in April 2003.  It would on the face of it be very pertinent to know why the Council and their advisers did not refer in evidence to the offers in the range of £15.3 million to £23 million.  This consideration adds to the sense of injustice felt by the Claimant at the fact that their property has been valued without what now appears to be important evidence being known to the Tribunal, especially when it was evidence known to the Acquiring Authority.  We believe that it will be relevant to know, and we think that the Tribunal will be interested to know, why the Bristol City Council valued this property at slightly less than £2 million in 2005 when to their knowledge offers for it in the range of £15 million to £23 million had been made in 2002-2003 and when they did not draw the attention of the Tribunal to these offers.”
17.	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:
“When in Ladd v Marshall Denning LJ said that the first condition was “that the evidence could not have been obtained with reasonable diligence for use at the trial” he must have had in mind a case in which a party did not have the evidence available at the hearing but could have found it out.   That is not the present case.  The Claimant did have the evidence available at the hearing in the sense that they as a company knew of it.  The situation is that they assumed that the evidence would be produced to the Tribunal but for reasons of which they are not at present fully aware (and of which in the present circumstances they may never be fully aware) that evidence was not in fact adduced.  It would not be correct in law to hold the Claimant to a guideline which was not intended to cover the present unusual type of case.  It was perhaps for this reason that Neuberger J said in the passage in the Charlesworth case cited in paragraph 14 above that in exceptional cases evidence might be admitted after judgment had been given even where the conditions in Ladd v Marshall were not fully satisfied.  As we have just explained the present case does indeed reveal unusual and exceptional circumstances.”
18.	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.”
The Tribunal’s Order
19.	In an order dated 26th 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:
“In the present case, it is common ground that the value of the land cannot be ascertained by reference to sales of comparable properties, since there is no known evidence of such sales.  That being the case, both parties’ valuers have based their valuations upon a residual method.”
20.	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:
“8. The key issue in this application, and one that we consider is fatal to it, is the fact that the ‘new evidence’ of the three offer letters was known to the claimant throughout the reference but not adduced.  In the statement in support of the application Mr. Michael Barnes QC states at paragraph 9:
‘Obviously the three letters were known to the claimant company.  Information on them was available to the claimant’s valuation witness, Mr. Hewetson, and to their solicitors, Brecher.  Save as is mentioned in this document the claimant do[es] not currently have complete knowledge of why the information was not provided in evidence to the Tribunal.’ 
‘9. We do not consider it necessary to inquire about why the claimant did not refer to or adduce this evidence in its statement of case, its expert’s reports or at the hearing, or why it did not raise the issue in the six month’s period from the receipt of closing submissions until the publication of our decision.  Nor do we consider it necessary to investigate whether the offers would in any case constitute useful comparable evidence.  The fact is that at all material times the evidence of the letters was available and, if it had been considered relevant, could have been adduced.  It was not adduced and it seems to us that it would not serve the cause of justice for such evidence to be admitted at this late stage, following the publication of our decision.  As Stuart-Smith LJ said in Imperial Chemical Industries v Montedison (UK) Limited [1995] RPC 449 at 468:
‘It is incumbent upon a party to adduce such evidence as he considers relevant and persuasive relating to the findings of fact which the judge may make.  He cannot wait for the findings and then say ‘Oh well, I could have called more evidence on that point.’
’10. This is not a case where the evidence could not have been obtained with reasonable diligence for use at the hearing.  On this point Mr. Barnes argues that Denning LJ in Ladd v Marshall; [the Tribunal set out the extract from the sixth consideration referred to in para. 17 above].
We do not accept this argument.  The unexplained failure of the claimant to adduce evidence that was available to it at all material times may be unusual but cannot, on our opinion, constitute an exception to the first requirement of Ladd v Marshall, even in a case where a final judgment has not been given and about which Neuberger J said in Charlesworth at 237:
‘I incline to the view that the Court is entitled to be somewhat more flexible, and not to proceed on the strict basis that each of these three conditions always has to be fully satisfied before fresh evidence can be admitted before judgment.’
’11. Neuberger J continued in Charlesworth at 237:
‘Of course, in many ways, an applicant seeking to persuade the judge to receive fresh evidence and/or argument on a new point is in a very similar position to an appellant seeking similar relief from the Court of Appeal.  He has had a full opportunity to collect his evidence and to marshal his arguments, and there must be a strong presumption against letting him have a second chance, particularly after he has seen in detail from the judgment why he has lost.’
We have considered all the other arguments put forward by the parties, but none of them, in our opinion, justifies our taking a more flexible approach or outweighs this strong presumption against the claimant’s application.  We see no justification for a hearing and we therefore refuse the application.”
The Appeal
21.	The Tribunal’s final decision dated 24th 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.
22.	When giving his reasons for granting permission to appeal,  Sullivan LJ said:
“Although this Court is usually most reluctant to interfere with the exercise of a judicial discretion, such as the Tribunal’s decision to refuse to admit late evidence, I am satisfied that the Grounds of Appeal are arguable and that they do raise an important issue of principle.
In particular, it is arguable that when applying Ladd v Marshall principles to disputed compensation claims in CPO cases account should be taken of the public interest in the Tribunal ensuring, on the best available evidence, that the correct amount of compensation (no more and no less) is paid by the public authority.  The position under a CPO should, arguably, be distinguished from that in a private arbitration or claim in respect of the value of land where there is no such public interest.
There is a related point: the acquiring authority was under a duty as a public authority to argue for the correct, not the lowest possible, amount of compensation.  If the acquiring authority knew of the offers, it is at least arguable on the material presently available that both parties were at fault in not drawing them to the attention of the Tribunal (and in the case of the acquiring authority explaining why they should not be relied upon).”
Mr Owen’s Evidence
23.	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.
24.	Following a meeting on 1st 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 25th April 2003 to the Hammerson’s representative at the meeting, enclosing the three offer letters.  Mr. Comer made it clear in his letter that, 
“in the light of the recent Barrett offer I see no reason why we should accept less than £25 million for this landmark opportunity.”
25.	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 5th 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.
26.	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. 
“33. Throughout the period from the valuation date until the Lands Tribunal hearing I remained aware of the three letters – in the sense that I had not forgotten them.  However, at no stage did I consider that (apparently unsolicited) offers made in the period 2002/03 were of any assistance in determining the value of Tollgate House in September 2005 in accordance with the provisions of the compensation code because the offers:
(i) appeared to have been made on the basis that the scheme underlying the compulsory acquisition would go ahead;
(ii) were between 2 and 3 years old at the valuation date;
(iii) seemed to be based on planning assumptions that did not match those which BCC’s planning expert considered appropriate in accordance with the provisions of the Land Compensation Act 1961;
(iv) were in part conditional; and
(v) were mere offer letters which did not constitute (nor did they refer to) evidence of any actual market transaction.
34. In the light of this, I did not consider it either necessary or appropriate to introduce the three letters as part of my evidence to the Lands Tribunal.
35. I was not then, and am not now, aware of any obligation when acting as an expert witness (whether in the Royal Institution of Chartered Surveyors guidance or the Practice Directions) to introduce as evidence material which I consider to be of no assistance in carrying out valuations of this kind.  Furthermore, the claimant’s valuer did not seek to introduce the three letters (although he had clearly been made aware of their existence) and had never suggested that the claim was supported by anything other than a residual valuation.”
27.	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: 
“As a general point, the relevance of offers to the comparative method of valuation is recognised within RICS Guidance.  This states “comparable evidence should be from actual sales completed between unrelated parties where the valuer is aware of all the circumstances of the sale….. it may also be possible to gauge the level of value through analysis of asking (or offer) prices for similar properties”.  The offer letters related to the Property, and are summarised below.”
28.	The RICS Practice Statement and Guidance Note (2nd Edition) for Surveyors acting as Expert Witnesses states that the surveyor’s duty is
“to be truthful as to fact, honest and correct as to opinion and complete as to coverage of relevant matters.”  
Having referred to that Guidance, Mr. Earl said in paragraphs 17-20 of his     Witness Statement:
“17…..It is my opinion that the 3 offer letters were relevant matters, which should have been referred to by Mr. Owen within his expert evidence submitted to the Lands Tribunal.  My opinion is based upon two principal considerations:-
(i) The offers contained in the 3 letters were submitted in respect of the Property.  As such, they represented offers to purchase the interest in land held by RPL which formed the subject of the Lands Tribunal Reference.
(ii) The parties acknowledged that there was not direct evidence of sales of comparable properties at or around the valuation date.
18. It is my opinion that in these circumstances, Mr. Owen owed a basic duty as expert witness to introduce the offer letters to the Lands Tribunal because firstly, they were material valuation particulars for the Property, and secondly, by their introduction Mr. Owen would have given both parties and the Lands Tribunal an opportunity to also consider a comparative approach to valuation which could have been applied by the Tribunal at least as a means of checking the residual approach, with its established shortcomings, when determining market value.
19. In the Statement of Agreed Facts and Issues in Dispute prepared for the Lands Tribunal hearing, in which the parties agreed to adopt the residual approach, it was expressly stated that the value of the Reference Land for one of the Three Schemes exceeds its value based on use as offices, either in its actual condition or following a scheme of renovation.  Given that one of the offers was entirely unconditional (and might therefore reasonably have been perceived to be an offer based on existing use value even before the offeror later confirmed that fact).  I find it difficult to see how a valuer with knowledge of that offer and with it in mind, could have reached that conclusion if his view of the Property’s value based upon a residual valuation approach was a fraction of the offer figure (approximately 1/8th) as Mr. Owen’s was.
20. Mr. Owen notes that Mr. Hewetson made no reference to the offer letters in their discussions over market value prior to the Lands Tribunal hearing.  I am not convinced that this has any particular relevance to the conclusion which I have reached.  Mr. Hewetson, by his own admission, overlooked the presence of the offers and has acknowledged in subsequent correspondence with the Appellant, that they would have “demonstrated considerable support for my valuations”.  In my view, Mr. Hewetson had an identical duty in acting reasonably as an expert witness to bring the offer letters to the attention of the Lands Tribunal.  From what I have read the difference seems to be that Mr. Hewetson had forgotten about the letters whereas Mr. Owen had not.”
29.	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:
“Would at the very least, enable a re-appraisal of the conclusions as to value which the Lands Tribunal Members reached using an approach to valuation, (residual method), which they considered to be not without faults.  In this regard, at various points within the decision the presiding Members offered the view that they would expect a developer bidding for the Property to take a broad brush view in respect of costings and questioned how much information developers in the market would have as compared to the very detailed evidence adduced by the parties.  In my opinion, consideration of the offer letters would at the very least have provided both expert witnesses and Members with a means of testing the outcome of the residual approach against a market based comparative approach and this in turn would have enabled a better informed and more reliable appraisal of market value.”
In conclusion Mr. Earl expressed his opinion that:
“Any valuer behaving reasonably could not have concluded that the offers were of no assistance to the Lands Tribunal”
Discussion
30.	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.
31.	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.
32.	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.
33.	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
“to show that by reason of the further material the whole complex and unsatisfactory residual process could be replaced by what every valuer regards as a simpler valuation technique of higher probative value.”
34.	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.
35.	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.
36.	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.
37.	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).
38.	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.
39.	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 23rd 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.
40.	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 23rd 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.
41.	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.
42.	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 17th July 2009); or “We….. did not consider the immediate surroundings to be influential in any way” (letter dated 16th July 2009 from Barry Wood, formerly Managing Director of the Bristol Division of Barratt Homes Ltd.).
43.	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:
“It is also relevant that the offers were submitted by experienced house builders who were clearly unconnected to the Appellant and who approached the Appellant on an unsolicited basis.  In the case of Columbia Estates and Barratt Homes it is evident from   supplemental information provided that both parties on recollection were broadly aware of the Property’s recent planning history and had carried out some due diligence in the course of preparing their offers.  In the light of this, I can see no reason why the offers should not be considered to have at least some evidential value in determining the value of the Property.  Accordingly, I do not accept that the offers can be dismissed simply because they do not represent completed transactions.”
Apart from the fact that the three letters were written by experienced house builders, that information was not available to Mr. Owen when he formed the view that the offers would be of no assistance to the Tribunal.  It is only with the benefit of hindsight that his view seems somewhat surprising.
44.	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.
45.	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.
46.	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.
47.	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.
48.	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.” 
49.	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.
Conclusion
50.	For the reasons set out above, this appeal is dismissed.