I recently attended Francis Taylor Building’s annual compulsory purchase legal update seminar. Richard Glover QC chaired the afternoon seminar and presented the session on business extinguishment compensation, which was a philosophical but highly thought provoking look at the Lands Tribunal’s latest business loss compensation decision, a case in which I gave evidence.
Filling in the evidential gaps
Intriguingly he started by describing recent research by Peter Carruthers (http://tiny.cc/no-conscious-thought), a Professor of Philosophy, who concludes that judgments, decisions, intentions and goals are not tied to sensory experiences and never figure in working memory or become conscious. Professor Carruthers points out that we only ever recognise our decision-making from what does become conscious, such as visual imagery and the words we hear ourselves say in our heads. As such, Carruthers concludes that conscious thought, judgment and volition are all illusions.
Drawing on Carruthers’ research, Richard contrasted the recent decision with how the Tribunal decided business extinguishment compensation before the Optical Express case. This is partly because it now involves evidence from forensic accountants and partly due to the volume of, often conflicting, empirical evidence that is now much more readily available. Richard suggests the Tribunal is now left to “fill in the evidential gaps”, which is where Carruthers’ conclusions becomes relevant.
Having presented the background, Richard went on to describe the wide range of conflicting evidence that was presented in the latest Lands Tribunal valuation decision on business extinguishment, a £10 million claim by Welcocks Skips Limited (http://tiny.cc/Welcocks) in which I gave expert evidence.
Richard contrasted this case with a typical business valuation case twenty years ago, Klein v Transport for London , where the Tribunal simply adopted three years’ purchase based on custom and practice.
Is the Tribunal now demanding more persuasive evidence?
One particular interesting lesson one can draw from the Welcocks Skips case is the Tribunal’s conclusion that when deciding between conflicting comparables, evidence from those with personal knowledge would be required in order to favour one potential “comparable” company transaction over another. While expert evidence was provided by the Acquiring Authorities’ waste specialist, the Tribunal concluded this was not sufficiently compelling to favour certain transactions and that it is unreasonable to draw conclusions solely from accounts and publicity material. In my view this decision sets a new benchmark for the evidence that will be required by business valuers in future.
Considering the considerable controversy surrounding the low level of compensation currently being offered by HS2 following compulsory purchase, perhaps the Tribunal had in mind the hundreds of potential cases that could be lining up to file claims on Britain’s flagship infrastructure project.
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6 November 2019
#compulsorypurchase #businessvaluation #HS2