Flashcards in Independent Expert determination Deck (20)
What is INDEPENDENT EXPERT DETERMINATION?
Parties to a contract ask an independent expert to give a binding decision on a dispute
In construction; can be used effectively for technical issues, where true expertise is required to reach decision / for valuation disputes where liability has already been determined
Expert determination remains, however, one of the least used tools in the dispute resolution toolbox for
What are the advantages of INDEPENDENT EXPERT DETERMINATION?
Expert determination = quicker and cheaper procedure than arbitration / litigation which can often take a year / years to reach conclusion
Thought that it is less likely to damage commercial
relationships going forward than litigation / arbitration
Unless parties restrict an expert in advance, an expert can conduct their investigations into issue to be determined without being restricted to the parties’ submissions as an arbitrator would be
What are the disadvantages of INDEPENDENT EXPERT DETERMINATION?
Unlike arbitration / adjudication, there are no statutory “backup” rules for expert determination along the lines of the Arbitration Act 1996 or the Housing Grants Act
It is purely governed by what the parties have agreed in their contract
There are very limited grounds for appealing an expert’s decision
Lack of ability to compel evidence from witnesses and disclosure means expert determination = less suited to fact-heavy disputes. These often require disclosure and
detailed witness evidence to fully get to the bottom of matters.
Expert Witness – What is a key Guidance Note?
RICS Surveyor as an Expert Witness – Practice Note (Mandatory Requirement) and GN (best practice)
What is an Expert Witness?
Someone with knowledge, skill, education and experience in specialised field
Is appointed by one of the parties in a dispute to assist the tribunal on topic within their expertise
Primary duty = to the tribunal, not the client
What should an Expert Witness' evidence be?
Be independent and unbiased
State the facts and assumptions their evidence is based upon
Remain impartial and uninfluenced by those who appointed them
If a surveyor is appointed as an expert witness, what steps should they take?
Advise their client that the RICS Practice Note will apply
Supply their client with a copy of the RICS Expert Witness client guide
Notify their client that their agreed complaint’s handling procedure will not apply as their duty is to the tribunal, not their client
Check no COI arises – surveyors may be instructed by
their clients to act as expert witnesses and their evidence to the tribunal may conflict with their client’s perspective
Ensure there is a written record of their appointment as an expert witness
What is the RICS Expert Witness Accreditation Service (EWAS)?
Developed by the RICS Dispute Resolution Service after Jones v Kaney, which established it is possible to sue expert witnesses if they are negligent
What does the RICS EWAS ensure expert witnesses are?
Appropriately experienced in the subject matter
Trained and assessed by the RICS
Subject to the RICS DRS quality control regime
The RICS EWAS raises standards in a sector that was not previously subject to quality control by a professional body
What are court proceedings?
The process of engaging in or contesting legal action in court as a means of resolving a dispute
Court = able to enforce / determine one party's rights or obligations
What is litigation?
Litigation = process of taking legal action, i.e. in the construction industry
It will typically be taken to the Construction and Technology Court
What is the Professional Arbitration on Court Terms (PACT)?
A joint initiative set up by RICS and the Law Society as a form of ADR for lease renewal disputes
The determination of all or some of the terms of a renewal lease = ‘delegated’ to an independent third party who may act as an arbitrator / an independent expert
Objective of scheme = increase effectiveness and flexibility of the legal system and to give a greater choice to both landlords, tenants and to their advisers through the lease renewal process
What is the key Note for Surveyor-Advocate?
RICS Surveyor as a Surveyor-Advocate – Professional Statement (Mandatory Requirement) and GN (best practice)
What is a Surveyor-Advocate?
A surveyor acting as advocate = appointed by a party to present the case for the client using argument, showing the tribunal why the client’s case should be preferred
Surveyor advocates have duties to their client and also an overriding duty to the tribunal
What must Surveyor-Advocates ensure?
Surveyor advocates must:
- Act in the best interests of their client
- Advance their client’s case by all fair and proper means
- Have adequate PI cover in place
What does JCT recommend for ADR?
JCT SBC11 clause 9.1 requires each party to give serious consideration to use mediation
Not compulsory for parties to use mediation, however English courts strongly encourage it and have introduced cost sanctions against parties that refuse to resolve a dispute through mediation where it would have been clearly in its interest to attempt to do so
What are some ADJUDICATOR Nominating Bodies and Services Available to Resolve Disputes?
Adjudicator nominating bodies:
o Construction Industry Council
o RICS DRS
What are some ARBITRATOR Nominating Bodies and Services Available to Resolve Disputes?
Arbitrator nominating bodies:
o Chartered Institute of Arbitrators
o RICS Construction and Engineering Arbitration Service (RICS CEAS)
o Construction contracts contain DRS provisions via agreed Alternative Dispute Resolution services
What are some RICS DR Services Available to Resolve Disputes?
RICS Dispute Resolution Service:
o Adjudication and arbitration services
o PACT (lease renewal disputes) – joint initiative with the Law Society
o Dilapidation disputes