Owen Pell Limited (“Owen Pell”) entered into a contract with Bindi (London) Limited (“Bindi”) for Owen Pell to build an extension and undertake M&E work at Bindi’s property at Holme Lacy. Owen Pell left site before work was complete.

The parties later agreed to have their dispute determined by an independent expert, to be appointed by RICS. The RICS appointed Mr Cartwright as the expert. In September 2007, Mr Cartwright decided that Owen Pell was entitled to be paid £53,487.76 plus VAT within 7 days of the decision and that Bindi should pay 80% of his fees.

Bindi refused to make payment. Owen Pell issued proceedings and sought summary judgment. Owen Pell argued that Mr Cartwright answered the question put to him and therefore his decision was binding, even if it is wrong.

They argued that the rules of natural justice do not apply to expert determination. Bindi argued that it was an implied term of the expert determination agreement that the expert’s decision would be of no effect and/or liable to be set aside if the expert did not abide by the rules of natural justice, was biased or gave the appearance of being biased or was guilty of gross or obvious error and/or was perverse in his conclusions.

Should the term suggested by Bindi be implied into the parties’ contract?