Expert Determination – Instead of Instructing a Traditional Expert Report get the Dispute Decided!
What is Expert Determination?
Expert determination is a confidential and cost-effective alternative dispute resolution process where parties jointly agree to appoint an independent expert to make a legally binding decision on their dispute that can be determined by an expert with specialist knowledge and expertise in the scope of their dispute.
Expert Determination is not too dissimilar to a Single Joint Expert appointment with the difference being there are no court, arbitration or statutory rules that apply and the outcome is not an opinion it is a legally binding decision determining the parties rights.
Typical long established ADR processes that determine the parties rights include arbitration and adjudication. It is of paramount importance for the dispute decider to be an Expert in the field of the dispute with some form of legal qualification relating to the law and the ADR process. It not unusual for dispute deciders to lack that expertise and often in these processes you do not have a choice on who does the deciding. Expert Determination has thus emerged as a practical quick, confidential and commercial way of resolving the dispute such as a Final Account or payment dispute and allows you to choose a properly qualified expert decider.
In commercial construction disputes the Expert Determiner should not be lawyers unless qualified as all Arbicon consultants are who are experienced Chartered Quantity Surveyors (RICS); that understand commercial construction contracts and construction technology; measurement and valuation of construction works; have qualifications in ADR processes such as adjudication, arbitration including law; Expert Witness training; and award writing skills.
The Process
There are no statutory or legal rules for Expert Determination. The rules are defined by agreement between the parties, who will be assisted with this by Arbicon, the Expert firm managing the process together with the Expert.
Arbicon / Arbicon RICS Expert will set out the framework of rules for the process and will include the following for the parties to jointly agree:
- The Scope of the Determination
- The Procedure:
(a) The power of the Expert to direct the extent, form and timetable for submission of the parties statements of position in written documents only, arguments and comments to establish the facts; investigate the facts and the law and ask the parties questions; order meetings/site visits; everything necessary to reach final party submissions.
(b) Expert’s Determination to be in writing and signed and published to the parties
(c) Identify the parties Contract and Contract rights that apply
(d) Identify the account, dispute to be decided and the parties account values
(e) Prepare a Scott Schedule (if applicable)
(f) Expert’s questions and understanding the parties finalised positions
(g) Closing submissions
(h) Timetable to write the Expert Decision / Determination Report
- Fees and Expenses of the Expert and how these are to be paid including a lien
- Party costs if not pay their own costs
- Declarations on Conflicts of Interest
- Joint and Several liability of the parties for the Expert’s fees
- Expert’s immunity from liability save bad faith
- Communications – e.g. email and simultaneous copy to all parties with no direct sole communications with the Expert allowed.
- Confidentiality – Private Proceedings
- Expert’s Determination to Final and Binding on the parties
- Correction of errors – arithmetic only
Disputes in construction are often complex with technical difficulties that only an expert can determine. Experts are always needed in construction disputes at some point to resolve such matters as valuations, payments, delays, defects, contract obligations, repudiation/termination, liability and quantum of damages or final accounts. Expert Determination is the best way to dispense with disputes in a short time at a commercial cost and might also save your project and business relationship.
Expert Determination requires party agreement.
If you are seeking an Independent Joint Expert or any Expert appointment before or during any proceedings, whether on a CPR 35 basis or otherwise basis, why not try turning that requirement into an Expert Determination? Call Arbicon to find out how you can achieve an Expert Determination appointment and obtain an overview on the possibility of dispensing with proceedings, dealing with the dispute, reducing costs and the time involved. Please use our contact form or call any of our offices for a free initial consultation.