Overturning a decision made by an expert in a dispute-deciding ‘expert determination’ is like trying to roll a fat lady up a hill while singing Siegfried – well, anyway, terribly hard
Attempting to torpedo an adjudicator’s decision or an arbitrator’s award is an uphill task. Even more difficult to upset is an award made by an expert in the dispute-deciding process of expert determination.
An expert determination took place in a dispute between builder Owen Pell and employer Bindi (London). It was a sound dispute resolution choice because the argument was mainly about valuing work done, valuing alleged defects and valuing the cost of cure. Mind you, all that can be done by adjudicators and arbitrators and even judges in the TCC, provided they don’t mind measuring drains and brickwork. The best person for all this, though, is a QS. More accurately, it is a QS who has done masses of adjudications and arbitrations as the dispute decider.
Now then, expert determination has a crucially different characteristic. It is a voluntary agreement between the disputants to appoint a person to make a binding decision – one that the court will enforce. Adjudication is only binding pro-tem; a court or arbitrator can hear that same dispute all over again. Expert determination is thank you and good night. The opera is over, the fat lady has sung. So, how does a disgruntled losing party torpedo this one? Bindi tried, and Bindi failed.
The target of its attack was the expert. According to Bindi, his binding valuation of £54k to be paid to the builder was all wrong for all sorts of reasons. So when the builder came to the High Court to enforce the award, Bindi deployed a shopping-trolley of reasons to say no.
Attacks on referees have at their heart an attack on their competence or fairness. There may even be a suggestion of malevolence. The motive is to demonstrate to the High Court that this was not even-handed decision making. Earlier I said all this was an uphill task. One of the reasons is that the court is extremely mindful about the effect its decision may have on other experts, adjudicators, and arbitrators. If a referee is lambasted by the High Court, there is a real chance that other referees reading the story will be unwittingly influenced when deciding other unconnected rows. It is vital that the referee’s independence is rock solid. He or she must be allowed to make unpopular decisions without fear.
It was said the referee ‘took against’ the eventual loser because he showed a ‘dismissive approach’ to some of its claims
The expert here is well-known. His experience is massive, and I bet he has taken all this in his stride. No, he won’t like being undressed and poked with a stick but neither would the fat lady. He was accused of (1) failing to conduct himself in accordance with the principles of natural justice (call it “fairness”); (2) being biased or giving the appearance of bias; (3) being guilty of gross or obvious error and deciding against the weight of evidence.
Let’s take all this in reverse order. The short answer to errors of law or errors of fact is: no chance. The parties had volunteered to use this system, volunteered to use a QS to decide facts and legal principles, volunteered, too, that this QS’ decisions would bind the parties. So, if the referee reads the evidence one way and you or I or Brünnhilde riding into Siegfried’s funeral pyre reads it different way – tough.
It was said the referee “took against” the eventual loser because he showed a “dismissive approach” to some of its claims. And, seemingly, during an inspection of works he “gave an indication of his thinking”. I say good for him. At least the “indication” gave the disappointed party the chance to lobby for a better result. None of that is bias.
As to unfairness, it was argued that submissions in a letter of the complaining party were ignored. That was true. The expert decided that it had arrived out of time so that was that. The court would not interfere.
So you see, the procedure was entirely a matter for the appointed expert referee. And provided the expert answered the dispute put to him, he had done the job he was asked to do. If one party doesn’t agree the referee’s decisions, or even if neither of them do, it doesn’t matter; he has refereed the game. He is that fat lady.
Tony Bingham is a barrister and arbitrator