Friday, 16 June 2017
Author: Tim Burtenshaw
When you are involved in a dispute or litigation, it is important to consider whether the approach that you are using is the most effective. Often when a commercial dispute arises, the parties will immediately turn their minds to whether the value of the dispute falls within the jurisdiction of the Disputes Tribunal, District Court or High Court. However, there are a range of other processes that can be used to resolve disputes, one of these being expert determination.
If the dispute is process driven or specialist in nature then the parties should consider whether expert determination can play a role in resolution of the dispute. If there is a mixture of legal and technical issues, or if judicial oversight is required for a particular reason, then expert determination may not be appropriate. Some contracts now require particular disputes to be resolved by expert determination.
An instance where it may be of use would be when there is a dissolution of a business relationship. In order to resolve the issues shares may need to be valued. If this was being resolved using litigation then a Judge would need to make decision on the value of the shares. As the Judge would not have this expertise, both parties would need to provide (and pay for) their own experts to provide their opinion to the Court so the Judge can make a decision on which party’s expert evidence is preferred. If the parties already know of a trusted expert in a particular area, then they could instead agree to engage them to make the determination.
If the parties agree to, or are required to, use an expert then some of the key points to be considered at the outset are:
These are just some of the factors to consider. If the scope and process is agreed at the outset then the process is likely to be much quicker and more cost effective. Expert determination can be used to resolve an entire dispute or specific issues. With agreement and clear guidelines as to the process it is an attractive alternative to lengthy and expensive litigation.
At any point during a dispute, the parties should be able to reassess whether the approach they are taking is appropriate. The parties should be open to taking the opportunity to refine what the dispute is about and how it can be sorted out. If expert determination could help the parties, they should seriously consider it. Time spent on reassessing the issues is rarely time wasted.
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