ADR: Expert/Neutral Determination

Question 1

What is early/neutral determination?

How is the expert acting in this context?

Give some examples of cases suitable for expert determination?

Answer 1

Process where an expert is appoint by the parties to decide all or part of a dispute

Expert is acting as the decision maker

Examples:
Disputes as to causation i.e cause of subsidence or medial condition
Valuation of company
Boundary disputes

General = useful way of determining disputes of a highly technical nature

Question 2

Does there have to be an agreement in place to use expert determination?

Answer 2

Can be but can be agreed after a dispute arises

Question 3

How will the expert be appointed? What else will this set out?

Will an oral hearing be held?
What else can the parties agree the expert can do?

How simple can the process be?

Answer 3

parties will agree terms in a contract to appoint the expert setting out the issues they want the expert to decide and make clear if the decision will be final and binding on the parties

Oral hearing not usually required (extra cost)
Parties can agree that expert can conduct their own inquiries

Can be very simple, just file submissions and ask expert to decide

Question 4

What will usually be agreed between the parties in relation to the determination?

What happens if a party ignores the expert determination clause in a contract and issues proceedings?

Answer 4

That it will be final and binding

Court likely to order a stay of the proceedings, burden will be on the party who started proceedings to show why the claim should not be stayed and why the expert determination clause should not be invoked

Question 5

What factors is the court likely to consider before exercising its discretion to stay proceedings?

What will the stay allow the parties to do?

Answer 5

Extend of pre-action protocol compliance

If dispute suitable for expert determination

Costs of ligation compared to ADR

If the court could resolve matters quicker than ADR methods

Case as a whole

Is a stay in accordance with the overriding objective

Stay = halts proceedings until post expert determination

Question 6

If a challenge is made against the expert’s decision what is the court likely to consider?

What if the contract says the decision is to be final and binding?

What is the key question for the court?

Answer 6

First = terms of contract (to see if challenge even possible)

If the terms are that the determination is final and binding then as long as expert has acted within their remit, determination cannot be challenge, whether or not it contains reasons for the decision that were reached

Key question = did the expert act early in accordance with their instructions?
(If yes = very difficult to set aside determination)

Question 7

If a party want to

Resolve dispute about interpretation of the expert determination clause; or

Resolve dispute about matters to be referred to an expert; or

Challenge the expert’s decision

What does the party need to do?

Answer 7

Issue pt.8 proceedings

Question 8

What happens if the court decides to set aside the determination?

Answer 8

Then court can make the determination itself or direct the instruction of a new expert

Question 9

How can a decision reached by an expert be enforced?

What can the court order?

Answer 9

Failure by one party to honour the expert’s decision amounts to BREACH of CONTRACT

So would have to issue breach of contract claims

Court can make an order to give effect to the expert’s decision and summary judgment can be given to enforce the decision

Then court’s decision can be enforce in same way as any other judgment