The scope of an expert’s remit will depend on the terms of reference agreed by the parties. If they stipulate that his decision is final, the court cannot set it aside, even if the decision is wrong, because the parties have agreed to abide by it. However, if the expert exceeds his authority because he answers the wrong question or fails to comply with any conditions agreed by the parties, the court can set aside the decision because it is not one that the parties have agreed to accept. The court may also be able to set aside a decision if the parties have agreed that the expert’s decision will be final and binding, except in the case of manifest error.
The court can also rule on the limits of an expert’s jurisdiction before he reaches a decision, or on the conditions with which he must comply, but will usually decline to intervene until he has completed his task to avoid wasting time and costs on hypothetical issues that may never arise. However, the issue of whether to intervene at an early stage is ultimately a matter for the discretion of a judge.
In Thorne v Courtier [2011] EWCA Civ 460; [2011] PLSCS 113, the parties agreed to settle a dispute on the basis that the defendant would pay “damages for trespass” in a sum to be determined by a chartered surveyor acting as an expert. Unfortunately, they soon began to argue over the meaning of the phrase “damages for trespass”. Had the trespasser agreed to pay for any loss that the landowner might have suffered because she was unable to sell her property while the defendant was trespassing? Or was the trespasser liable to pay damages for use and occupation only?
The landowner claimed that it was up to the expert to decide what the expression meant or, if the court did have the jurisdiction to deal with this, that the judge in the county court – who had decided that “damages for trespass” meant damages for use and occupation only – should have refused to intervene until the expert had reached a decision (which would have been unassailable if the expert had declined to give any reasons for it). The landowner also argued that the county court judge had wrongly interpreted the phrase.
The Court of Appeal upheld the county court decision. It accepted that the court should intervene only in exceptional cases but ruled that it had been in both parties’ interests for the judge to indicate what “damages for trespass” meant because this had a direct bearing on the nature and scope of the expert’s task.
Expert determination clauses are widely used in agreements relating to land. This decision highlights the importance of defining precisely what an expert is being invited to decide at the very outset, in order to avoid the need for costly and time-consuming litigation at a later date (which the parties usually hope to avoid by selecting an expert to deal with their dispute instead of the court).
Allyson Colby is a property law consultant
