ch 24

Question 1

1) What happens with a dispute review panel?

Answer 1

• Each party appoints members to a panel
• They appoint a chairman (don’t have to be experts)
• Make a binding decision

Question 2

2) Is an expert immune from suit?

Answer 2

no

Question 3

3) can experts insert clauses to make them immune suit?

Answer 3

• No UCTA 1977=unenforceable

Question 4

4) Are expert decision enforced same way it would be in court?

Answer 4

• No

* Amounts to a breach of contract

Question 5

5) How can court enforce expert’s decision?

Answer 5

• Make an order giving effect to decision of expert

* Summary judgment to enforce the decision

Question 6

6) Procedure to challenge expert’s determination?

Answer 6

part 8 proceedings

Question 7

7) What can happen if the decision is set aside?

Answer 7

• The court may make the determination itself

* Or direct a new expert

Question 8

8) Other grounds expert determination can be challenged?

Answer 8

• Material departure from instructions
• Fraud
• Collusion=showing the expert was bias-VERY high chance where they act as both mediator and determinator

Question 9

9) What are the contractual grounds for challenging an expert?

Answer 9

• No reason for decision
• Manifest error
• Error of law-doesn’t apply if parties stated for expert’s decision to be final and conclusive
• Failure to act lawfully or fairly-only applies if there was an agreement on the procedure expert ought to take
• Decision not intended to be final on matters of construction-only if parties agreement did not intend to oust jurisdiction of court, otherwise it’s irrelevant if the court would have reached the same decision

Question 10

10) What is a manifest error?

Answer 10

• Oversights and blunders

Question 11

11) When can the court be asked to determine the extent of an expert’s jurisdiction?

Answer 11

• Before matter is referred to an expert
• During expert’s determination and before they have reached a decision
• After determination when one party alleges they are not bound as expert went beyond jurisdiction

Question 12

12) What will happen if application is made to assess jurisdiction before matter is referred to expert?

Answer 12

• Court will consider if the dispute is real and not hypothetical
• Real=is it in the interest of justice and convenient for the court to determine the matter first
• This won’t always happen

Question 13

13) Does the court have jurisdiction to stay legal proceedings where party ought to have referred to expert?

Answer 13

yes

Question 14

14) What happens to party when they proceed with litigation and not expert determination?

Answer 14

• Bear burden of proof to show claim should not be referred to this ADR

Question 15

15) When considering whether to stay proceedings what will court consider?

Answer 15

• If dispute is suitable for ADR
• Extent of compliance with pre-action protocol and procedure
• Cost of ADR compared to litigation
• Whether litigation will be faster
• If a stay is in line with overriding objective

Question 16

Does an expert have to provide reasons for their decision?

Answer 16

• Only if stated in parties’ agreement

Question 17

17) Can an expert grant an order or an award?

Answer 17

no

Question 18

18) can the expert be given confidential information?

Answer 18

no

Question 19

19) what will parties normally have to send to expert under procedure?

Answer 19

• Written submissions
• Copies of all relevant documents
• List of attendees

Question 20

20) If not stated in agreement, who decides procedure?

Answer 20

• Party and expert

Question 21

21) Simplest way expert determination can be done?

Answer 21

• Both parties provide written decisions on paper

* Expert provides their determination in writing

Question 22

22) How can expert be selected?

Answer 22

• Parties agree

* Help of ADR provider

Question 23

23) When may the court intervene in appointment of expert?

Answer 23

• Deadlock

Question 24

24) What might parties consider when forming agreement?

Answer 24

• Qualification
• Expert vs. arbitrator
• Fees
• Time for challenge
• Procedure for determination
• Types of dispute applicable
• Reasons provided
• Time for payment