Expert Determination

I act as an independent Expert Determiner in relation to construction disputes and other defined issues falling within my professional expertise.

I am an Accredited Expert Determiner with The Academy of Experts and am included on The Academy’s Register of Qualified Dispute Resolvers as an Expert Determiner. The Academy’s accreditation follows formal training and assessment in the conduct of Expert Determination and the preparation of a determination.

Expert Determination provides parties with a means of referring a defined dispute or issue to an independent expert for decision. It is contractually based and may either be provided for in the underlying contract or agreed by the parties after a dispute has arisen.

1. What is Expert Determination?

In an Expert Determination, the parties appoint an independent person with appropriate expertise to determine the particular issue or dispute referred to them.

The role is distinct from that of an Expert Witness. An Expert Witness provides independent opinion evidence for consideration by a court or tribunal. An Expert Determiner is appointed by the parties to make the decision on the matter referred.

It is also distinct from arbitration and adjudication. The Expert Determiner acts as an expert in accordance with the parties’ agreement, the terms of appointment and any applicable procedural rules, rather than as an arbitrator or adjudicator. Under The Academy of Experts Rules, this distinction is expressly recognised.

The precise nature and effect of any Expert Determination will therefore depend on the agreement between the parties. Under The Academy of Experts Rules, the determination is made in writing and is final and binding upon the parties.

2. Expert Determination in Construction

Construction projects frequently give rise to discrete technical, programme, contractual or commercial questions which may be capable of being determined separately without referring the wider relationship between the parties to formal proceedings.

Depending upon the terms of the referral and the expertise required, matters suitable for Expert Determination may include:

delay, disruption and the time consequences of project events
programme logic, sequencing and critical path issues
the adequacy or reliability of baseline, updated or recovery programmes
questions concerning project progress, milestone achievement or forecast completion
valuation or assessment of particular items, variations or changes
discrete contractual or commercial issues associated with project delivery
particular technical or project-management questions within the Determiner’s field of expertise

The suitability of Expert Determination depends upon the particular dispute and, importantly, upon the question the parties wish the Expert Determiner to answer.

3. Expert Determination During Project Delivery

One of the practical advantages of Expert Determination is that a defined issue can be referred for decision without necessarily waiting for the completion of the project or commencing more extensive formal proceedings.

On live construction projects, this can allow a discrete technical, programme, contractual or commercial issue to be resolved while the works continue, providing the parties with greater certainty on a matter that might otherwise remain disputed for a considerable period.

Expert Determination is generally intended to provide a quicker and more cost-effective means of resolving appropriate disputes than arbitration or litigation, while retaining the benefit of a decision made by an independent person with relevant subject-matter expertise. The process can also be tailored to the particular issue and, where agreed, may be conducted principally through documents and written submissions.

It will not be suitable for every dispute, particularly where extensive factual or legal issues require a more formal process. However, for appropriately defined issues, it can provide a proportionate means of obtaining a clear and binding decision without the time and cost associated with full arbitral proceedings.

4. Defining the Question

The scope of an Expert Determination is fundamental.

The Expert Determiner derives authority from the parties’ agreement and must determine the matter that has actually been referred. The issues to be decided, the applicable rules, the information to be considered and the extent of the Determiner’s powers should therefore be clearly established at the outset.

This is particularly important where a construction dispute contains several interconnected issues. Expert Determination may be used for a single discrete question or, where appropriate, a number of clearly defined matters, but the Determiner must remain within the scope of the appointment.

5. Procedure

Expert Determination is capable of being adapted to the nature and complexity of the dispute.

The procedure may be conducted primarily through written submissions and documents, although meetings, hearings, site inspections or further information may be required depending upon the circumstances and the applicable rules.

Under The Academy of Experts Rules, the Expert may seek further evidence, require information, arrange meetings or hearings, inspect a site, property, product or process and, where appropriate, seek technical assistance from a suitably qualified professional.

The procedure adopted in any particular appointment must nevertheless remain consistent with the parties’ agreement and the authority given to the Expert Determiner.

6. Specialist Assistance

Some construction disputes involve issues extending across more than one professional discipline.

Where a referred matter falls principally within my own expertise but requires specialist input in another discipline, the ability to obtain that assistance will depend upon the terms of appointment and the applicable rules.

For example, The Academy of Experts Rules expressly permit an Expert Determiner to obtain technical assistance from an appropriately qualified professional at the parties’ cost.

Any such assistance does not transfer the decision-making function. The Determination remains the responsibility of the appointed Expert Determiner.

7. Independence and the Determination

The Expert Determiner must remain independent and impartial throughout the appointment.

Before accepting an appointment, I consider the nature and scope of the referral, the parties involved, potential conflicts of interest, the applicable procedural framework and whether the subject matter falls appropriately within my expertise.

Once appointed, my role is to establish an appropriate and proportionate procedure, consider the information and submissions presented, obtain any further information permitted or required by the appointment, and determine the questions referred.

The resulting determination must be clear, confined to the matters within the appointment and capable of implementation by the parties.

8. Appointment

Expert Determination may arise from an existing contractual provision or may be agreed by the parties once a particular issue or dispute has developed.

The parties may agree upon the Expert Determiner directly or use a nominating body where agreement cannot be reached. The Academy of Experts acts as a nominating authority and maintains a register of accredited Expert Determiners.

Conclusion

Expert Determination can provide a practical means of resolving clearly defined construction disputes where the parties wish to obtain an independent decision from someone with relevant subject-matter expertise. Its suitability will depend on the nature of the issue, the parties’ agreement and the scope of the appointment.

Where appropriate, it can offer a proportionate alternative to more extensive dispute proceedings while allowing the underlying project or commercial relationship to continue.