Expert Determination

A possible alternative

Expert Determination is the process whereby the parties agree to refer their disagreement to an impartial expert third party and that they will then be bound by his or her decision. Like adjudication and arbitration, the parties can choose who the appointed expert is.

Expert Determination is more commonly used in industries other than construction but it is a process that may be well suited to some types of construction related disputes. In the construction industry it is primarily used to resolve technical issues, such as defects or extension of time claims. As a guide, if a court would rely on expert evidence to resolve the dispute, expert determination will possibly be a viable and cheaper alternative.

The process is relatively quick, informal, confidential and inexpensive when compared to other processes. There are no formal hearings but the expert may meet with the parties, possibly separately if there are no objections. There is no requirement to have legal representation or for each party to see and hear what the other party has seen or heard. However some experts may feel more comfortable following the established rules of natural justice during the process and not have unilateral contact with either party.

The person carrying out the expert determination is not acting as a negotiator, mediator, adjudicator or arbitrator. The processes followed may be entirely at the expertsí discretion or published rules may be followed. Exceptionally the parties may decide not to submit any evidence at all and leave the expert to investigate and ascertain the facts and law, thus keeping costs to a minimum.

The decision to use expert determination will either be stated in the contract or, after a dispute has arisen, the parties agree to use the process instead of those originally stated in the contract. The original contract is then amended or a new contract is drawn up to reflect the parties wishes.

The decision is a finally binding determination and is only subject to appeal on the very limited grounds of jurisdiction, fraud, collusion or bias. Expert determinations are enforceable through the courts in the UK but may not be in other jurisdictions. In international disputes therefore the use of expert determination may not be an appropriate process depending on where the likely place of enforcement is situated.

The use of expert determination does have many advantages over other processes. Speed, informality, flexibility, confidentiality and cost being the main ones. However other processes may contain tactical advantages that expert determination does not, such as a tight and enforceable timescale or greater scope to challenge the decision if required. It is not a general purpose process suited to all disputes but rather a specific process very well suited for resolving technical disagreements.