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Spotlight On: Expert Determination

April 27, 2021 Civil Litigation,Covid-19

Many parties seek to avoid the traditional adversarial methods of litigation for a number of reasons. There are different procedures which can be used as alternatives to court proceedings such as mediation, arbitration and adjudication (as covered in previous weeks of this series). Another such method is Expert Determination.

Expert Determination is a procedure where parties submit the dispute between them to a suitably qualified expert to make a determination on the matter in question. Expert Determination is generally most appropriate in a commercial context. It is usually a pre-agreed method of dispute resolution in that it arises where parties have contractually undertaken that Expert Determination is the forum to which disputes will be referred and hopefully resolved. When a dispute therefore arises, the contract provides that the procedure requires to be used to determine the dispute, and should also dictate that the determination is binding, unless otherwise agreed. Having this contractual agreement does not completely prohibit parties from bringing a matter straight to court, however, is helpful in setting out the procedure.

Expert Determination relies upon consensus both in terms of the selection of an expert with the relevant expertise, and the submission of the dispute as a whole to the instructed expert. If there is any disagreement over the use of Expert Determination at the outset it is probably not the sensible next step as the question mark over any finding may continue for an aggrieved party and lead to litigation. Once Expert Determination has begun, it should remain entirely confidential. This is a commercial benefit to parties who may wish to keep their interests out of the public domain. Expert Determination should generally also be more economical financially as well being likely to bring about a quicker resolution than court proceedings.

The subject matters which are well suited to Expert Determination are issues where there can be monetary or technical certainty such as; determination of a price, or for a ruling on the fitness for purpose of a machine. An example of this is that an Expert Determination clause could be used to resolve disputes over rent reviews. Expert Determination is also appropriate for disputes of a technical nature where an expert can readily apply their knowledge with accuracy, such as to determine a fault in a machine and the responsibility of each party. Expert Determination should avoid asking any legal questions of the experts.

The Scottish Courts have generally resisted finding that Expert Determination is the exclusive domain for resolution of certain disputes. In recent cases the courts have demonstrated a willingness to allow parties the right to refer the dispute to court, even where Expert Determination is the contractually agreed arena for resolution. This should be considered when proceeding with Expert Determination, as the result may not be the final conclusion if one party is left unsatisfied.

If you have a dispute which you would like to discuss the suitability of Expert Determination for, please contact our specialist team at Jones Whyte who will be able to assist you moving forward. Call 0141 375 1222 or email .

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