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Independent Expert Determination Explained

The role of an independent expert

Expert determination is a process in which an independent third party, acting as an expert rather than a judge or arbitrator, is appointed to decide a dispute (as an independent expert or ‘expert determiner’ — not to be confused with an ‘expert witness’). His/her appointment is by the contract between the parties, which often provides for a nominated appointment.

The duty of an independent expert is to make proper and reasonable investigation and to arrive at a non-negligent decision, tested by what may be expected from the body of professional opinion. He/she may choose, or be so required by contract, to receive, and may take into account, evidence and arguments from the parties to a dispute, but, unlike arbitration, cannot usually be bound by them.

The independent expert should be able to:

  • base his/her determination upon his/her own knowledge and his investigations to discover the facts and all other information, including principles of law, relevant to his/her valuation or other issues in dispute;

  • Settle his/her own contractual terms with the parties, e.g. as to remuneration, extent of inspection, assumptions; and

  • Carry out the whole of the determination by him/herself

The advantages of independent expert determination

A Chartered Surveyor acting as an independent expert must have in-depth knowledge of the subject matter of the dispute (otherwise he/she is not an expert) and is free to make his/her own investigations. As a result, the dispute can be determined quickly and ‘expertly’ and, usually, once and for all. Expert determination is particularly suited to disputes on discrete technical issues, including disputes of valuation or quality of work and/or materials.

The Expert’s decision is normally final and binding unless indicated to the contrary in the contract. In that context, it is somewhat similar to Arbitration or indeed litigation but the fundamental difference is that the Expert normally has much more procedural scope than an Arbitrator or a Judge. The Expert is not normally bound by all the rules of Natural Justice and so can and is frequently encouraged to rely on his own knowledge or investigations without reference to the parties.