Expert determination to settle your technical issue or dispute

Expert Determination is a procedure whereby an expert whose decision is final and binding resolves a dispute, usually of a technical nature.

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Appointing an expert determiner

The expert is appointed under contract, either by a procedure set out in a previous legal agreement (the dispute resolution clause or DRC in a shareholder agreement or lease, for example) or by agreement at the time of the dispute between the parties and the expert. It is not arbitration or litigation, so their rules and precedents need not be followed. The expert determiner must act under the terms of the contract with the parties in dispute, so the three- or more- of them can agree those terms to suit the situation.

Chris performs expert determinations (also known as ED) by private appointment, and from the Institute of Chartered Accountants in England and Wales.

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An introduction to expert determination

For more information on expert determination, here are the slides which Chris presented recently for International Mediation Awareness Week:

Expert Determination Webinar by Chris Makin from Chris_Makin

Is Expert Determination a form of ADR?

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Advantages of Expert Determination

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Why appoint Chris as Expert Determinator?

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What Is The Expert Determination Process?

Think of it as a simplified version of arbitration.  Both parties to a dispute appoint a suitably qualified expert to settle that dispute between them.  Both parties can make oral and written submissions to the expert.

So Is It A Form Of ADR?

Yes and no.  Pure forms of ADR are when the parties are in charge throughout.  With ED, the parties choose the decision-maker and are involved in agreeing to the rules under which he should act, but thereafter the appointed expert is in charge of the process and gives the binding decision.

This question is discussed in Chris’s article which appears on the ICAEW website.

Can I Appeal Against An Expert Determination?

Appeals against an expert’s decision are very rare, and that is what the parties seek: finality to their dispute.  There are articles on expert determination on Chris’s blog . 

Why Choose Expert Determination?

Expert determination is a good choice for settling disputes, especially disputes of valuation or of a technical nature, and those which might wreck working relationships if pursued through the courts. It is totally confidential, and usually quick and at modest cost.  On all these it compares very favourably with arbitration and formal court proceedings. 

How Is An Expert Determiner Appointed?

In one of two ways:

In contracts, there is very often a Dispute Resolution Clause (DRC) which obliges the parties to follow Expert Determination in cases of dispute.  For example, in the sale and purchase of a company, the parties have to agree the Completion Accounts and/or the Earn-Out.  If they can’t agree, it is usual for the contract then to say that the President of ICAEW shall appoint the expert.  But the President now discourages this, and will appoint only under a court order or by payment of a handling fee of £10,000.  But parties can make their own choice of expert from the list (for nothing!).  

It is also possible, and easy, for an appointment to be made at any time by agreement between the parties.  If negotiations have failed and a court hearing looms, the parties may simply agree to have the matter determined by an expert.  That takes the matter out of the hands of the court, at significant savings in legal costs and management time.

How Versatile Is Expert Determination?

Very.  Except in very limited circumstances, for example where it is necessary to establish a precedent, virtually any dispute may be settled by ED.   Chartered surveyors are often appointed to settle rent or valuation disputes, and chartered accountants such as Chris are often appointed to settle company sale/purchase disputes.

But it goes far wider.  For example, Chris has settled these disputes:

  • The amount to be paid to the retiring senior partner at a law firm.
  • Dilapidations at the end of leases for department stores.
  • The amount to be paid by a partner in a chartered accountancy practice, who left and took with him a block of fees and some key staff.
  • The amount to be paid to a farmer by a company operating wind turbines on his land.
  • The amount due in royalties (a multi-million dollar sum) for music downloads on YouTube.

Who Should The Expert Be?

Unlike a judge who does not profess such knowledge, the expert should have expertise and technical knowledge relevant to the dispute. The parties will try to agree on which fields of expertise the expert must have and which expert is chosen.   And the experts do choose the expert; at court the judge is imposed.

In the event that the parties can’t agree on an expert, an appropriate professional institution can be called upon to appoint, or The Academy of Experts can make a choice – see the Academy of Experts for more information .  The Academy is the only professional body in the world with a scheme for training and accrediting expert determiners, of many professions.

How Do I Enforce An Expert Determination Decision?

The parties appoint the expert by contract, and the experienced expert determiner can provide the wording.  It is between three parties: the two in dispute and the expert.  The parties are obliged to cooperate with the expert and to accept his decision, and the expert is obliged to make the decision – see Campbell -v- Edwards, discussed in one of my blog posts.  So, since it is a valid contract, the “winning” party can sue on it, and the court will (almost) inevitably grant judgment to the winner.

What Are The Expert’s Powers?

These are as defined by the rules which the parties and the expert agree at the start of the process.  A pro forma set of rules may be found on the ICAEW website. These were devised by The Academy of Experts and settled by counsel, and Chris was involved in their adoption by ICAEW when he served on the ICAEW Forensic Committee.

Chris is now the chief examiner in expert determination at The Academy of Experts.

How Much Does Expert Determination Cost?

Chris always agrees his pricing structure before the assignment gets under way. All fees are payable equally between the parties. More information can be found in the expert determination section on the fees page

How Long Before A Decision Is Reached?

It varies.  Each party must have the right to make representations to the expert, and for the other side to respond (each way).

One of Chris’s Expert Determinations took seven years, but only because it was necessary to await an important decision from the tax tribunal.  By contrast, he completed one in no more than five working days.  That was exceptional; the parties wanted a quick decision and had all their representations ready in advance.

In normal circumstances, one can expect the process to take a few weeks, which puts it in a better light than a High Court hearing which can take many months even without appeals.

So Expert Determinations suits those parties who want a confidential process, a relatively inexpensive one, a prompt result, and a decision which cannot be appealed.  The watchword is finality.

Still have a question? Ask Chris.