ch 24 Flashcards
1) What happens with a dispute review panel?
- Each party appoints members to a panel
- They appoint a chairman (don’t have to be experts)
- Make a binding decision
2) Is an expert immune from suit?
no
3) can experts insert clauses to make them immune suit?
• No UCTA 1977=unenforceable
4) Are expert decision enforced same way it would be in court?
- No
* Amounts to a breach of contract
5) How can court enforce expert’s decision?
- Make an order giving effect to decision of expert
* Summary judgment to enforce the decision
6) Procedure to challenge expert’s determination?
part 8 proceedings
7) What can happen if the decision is set aside?
- The court may make the determination itself
* Or direct a new expert
8) Other grounds expert determination can be challenged?
- Material departure from instructions
- Fraud
- Collusion=showing the expert was bias-VERY high chance where they act as both mediator and determinator
9) What are the contractual grounds for challenging an expert?
- No reason for decision
- Manifest error
- Error of law-doesn’t apply if parties stated for expert’s decision to be final and conclusive
- Failure to act lawfully or fairly-only applies if there was an agreement on the procedure expert ought to take
- Decision not intended to be final on matters of construction-only if parties agreement did not intend to oust jurisdiction of court, otherwise it’s irrelevant if the court would have reached the same decision
10) What is a manifest error?
• Oversights and blunders
11) When can the court be asked to determine the extent of an expert’s jurisdiction?
- Before matter is referred to an expert
- During expert’s determination and before they have reached a decision
- After determination when one party alleges they are not bound as expert went beyond jurisdiction
12) What will happen if application is made to assess jurisdiction before matter is referred to expert?
- Court will consider if the dispute is real and not hypothetical
- Real=is it in the interest of justice and convenient for the court to determine the matter first
- This won’t always happen
13) Does the court have jurisdiction to stay legal proceedings where party ought to have referred to expert?
yes
14) What happens to party when they proceed with litigation and not expert determination?
• Bear burden of proof to show claim should not be referred to this ADR
15) When considering whether to stay proceedings what will court consider?
- If dispute is suitable for ADR
- Extent of compliance with pre-action protocol and procedure
- Cost of ADR compared to litigation
- Whether litigation will be faster
- If a stay is in line with overriding objective
