Expert Determination

A possible alternative

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

Expert Determination is now more commonly used in construction disputes and it is a process that can be well suited to resolving technical issues such as defects or an extension of time claim. As a guide, if a court would rely on expert evidence to resolve the dispute, expert determination will likely be a viable and cheaper alternative.

The process can be tailored to the parties requirements, it can be relatively quick, informal, confidential and inexpensive when compared to other processes. There are not usually 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. There is no requirement for natural justice or procedural fairness however quite often experts feel more comfortable following the established rules of natural justice during the process and not have unilateral contact with either party.

A disadvantage to expert determination is the potential for jurisdictional issues to arise where ambiguity is found as to the question to be determined by the expert. As expert determinations are most suited to technical disputes of a narrow nature, clarity as to the question to be answered by the expert is essential. Unlike in adjudication or arbitration, the expert will not usually determine a whole dispute between the parties but only specific issues falling within their technical expertise. The most frequently cited passage concerning the jurisdiction of an expert determiner under English law is from Nikko Hotels (UK) Ltd vMEPC plc, where the court explained that if an expert “has answered the right question in the wrong way, his decision will be binding. If he has answered the wrong question, his decision will be a nullity.”

The decision can be a binding or non binding determination, but if binding it is only subject to appeal on the 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. This is an important consideration if it is to be used on an international contract.

So if you want your dispute resolved in a relatively quick, informal, confidential and inexpensive manner, expert determination is worth considering.