In Braceforce Warehousing Limited/Mediterranean Shopping Company (UK) Limited  EWHC 3839 (June 2009 decision, but recently made available), Mr. Justice Ramsey obiter examined whether the Limitation Act 1980 applies to expert review procedures. The Tribunal found that an expert appointed under an expert finding contractual clause was competent to resolve a contractual dispute between the parties. The statute of limitations does not apply to the experts` finding and, even if this were the case, an expert finding request had been made before the expiry of a limitation period. Read more → the determination of experts is not like judicial proceedings, and has very little in common with them, or with expert evidence. In an expert finding, the expert forms the court and makes the decision, and they are by no means a witness. 15. Depending on the decision, neither party will refer the matter to the expert or IDRC (or a collaborator, advisor, officer or representative of IDRC) as a witness, advisor, arbitrator or expert in a dispute or arbitration proceeding concerning the dispute and the expert and IDRC will not act voluntarily in such a capacity. 1.10 The expert acts as an expert and not as an arbitrator. The expert determines [THE MATTER UNDER THE AGREEMENT] [which may encompass all issues relating to the interpretation of a provision in this agreement, its jurisdiction to determine the issues and issues before it, or its mandate].
The expert`s written decision on the issues before him is final and binding on the parties in the absence of obvious error or fraud. Expert research is a useful method of dispute resolution when used in the right circumstances. Think carefully before referring some or all of your disputes to an expert`s decision and make sure it is the right forum for these disputes. Once the parties have agreed to refer a particular dispute to expert notice, the appropriate courts may agree with you and deny jurisdiction to rule on that dispute. In addition, depending on the area of jurisdiction, compensation may be awarded for damage caused by non-compliance with the provisions of an expert determination clause. The courts in England and Wales have previously held parties to their agreement to bring an action against an expert and have awarded damages to costs that have been wasted in the proceedings in violation of the relevant clause.3 Although an error is generally not grounds for challenging a decision, it can be challenged if the expert has departed significantly from his instructions, i.e. he has not fulfilled the mission of his contract. Such an example would be if the expert was asked to evaluate one property, but in fact worth another. Other grounds for challenge are fraud and bias.
CeDR can help by providing appropriate experts who act as experts for our panel. We will also deal with all aspects of expert determination agreements. This implies that it is important to expressly stress that the expert`s decision must be final, but you should also consider why you want to challenge an expert`s decision. As noted above, the expert`s decision, unless the contract expressly provides otherwise, can normally only be challenged on grounds of fraud or material deviation or fraud. The mere fact that the expert made an error is not a reason to challenge his decision. It is therefore customary for the parties to agree that an expert decision is binding, except in the case of a “clear error”. Such an error would occur if the expert made a clear error or a clear error or error. Many of the pitfalls associated with determining experts can be avoided by drawing carefully and tailoredly.