Construction Dispute Resolution by Expert Determination
Non- Binding Expert Determination
This is one of the best, yet least-used, methods of resolving building defects disputes. Expert determination involves the parties to the dispute referring the problem to a suitably independent expert individual or team – the ‘experts’ – who then investigate the drawings, specifications, building, etc. as appropriate. They generally take evidence from the parties as well as from their own investigations but there are no hard and fast rules and a good expert in this role will seek the most effective way of getting at the facts. In contrast to litigation, the experts’ investigations will be carried out openly, allowing all parties to see the methodology and follow their progress. Customarily, the experts will, on concluding their investigations, report their findings and give their opinion on the appropriate remedies. Where their conclusions are not binding on the parties the success of the process depends, to some extent, on the experts’ communication skills. A comprehensive treatment of the evidence and full exposition of their reasoning is a persuasive basis for forming opinions. If the conclusions are shown to flow inevitably from the established facts, they will be most compelling.
Experts cannot enforce agreement and, to be effective, must present the facts on which they have relied and their interpretation of them, clearly. Demonstrably correct facts and conclusions based on good research and well-reasoned arguments can be very convincing. The expert’s findings should, therefore, be presented in sufficient detail to demonstrate that they are adequate in scope, thoroughly researched, logically interpreted and reliable.
If they have properly identified the causes of failure and provided reasoned descriptions of the causal links between faults, defects and damage, they have provided a good basis for resolving the dispute and for correcting the deficiencies in the building.
They may, if asked, go further and allocate blame. Usually, once the mechanisms of failure are clearly understood, matters of responsibility and liability will be self-evident to those concerned. The experts’ decision on accountability may therefore not be required. It will, in any event, not assist if the experts are not legally competent. A good understanding of science and technology is not necessarily linked to a proper understanding of contract, and of the legal principles underlying the correct allocation and apportionment of blame. It is important, in selecting experts, to ensure they are not asked to go outside their areas of expertise, and it is often best to restrict experts to the authoritative explanation of the technical issues which are well within their area of competence.
Binding Expert Determination
Some agreements incorporate expert determination clauses which are binding, e.g. some rent review clauses in leases. Where no undertaking to settle disputes by expert determination is incorporated at the outset, it remains open to the parties to agree this when a dispute arises. There are standard procedures which can be adopted, such as that published by the Academy of Experts, or the parties may prepare bespoke terms. Where the expert(s) are authorised to decide the matters in dispute and issue a binding award this may be regarded as a form of arbitration.