independent expert determination

An independent expert determination results from the parties in a dispute agreeing to be bound by the decision of a third party who has expert knowledge of the subject matter in dispute.

We have long experience in the value and condition of commercial and residential property.

We accepts appointments as mediator, arbitrator or independent expert.  

Reasons for referral to an independent expert

  1. The cost of referral is much lower than the cost of litigation through the Courts.
  2. The dispute is decided by an expert in the field.  Matters relating to property disputes are decided by a surveyor or valuer with knowledge of that specific type of property and specific property matter.
  3. The parties may have already agreed within the lease or contract that any dispute will be referred to an independent expert.
  4. A dispute is settled more quickly than taking a matter through the Courts.

What is the difference between an arbitrator and an independent expert

An arbitrator determines a dispute only using the evidence provided by the parties.

An independent expert determines the dispute using both the evidence which is submitted and his/her own expert knowledge.  He/she may seek further evidence in addition to that submitted by the parties.

Is an independent expert referred final

Yes.  Each party agrees in writing as a condition of the referral that they will accept the expert determination in their dispute.

Matters suitable for independent expert determination

Most disputes relating to the value of property, the condition of property, the ownership of property and the terms of contracts relating to property are suitable for determination.

These include:-

  1. Value of freehold commercial and residential property.
  2. The rental value of commercial and residential property.
  3. The repairing covenants and any other covenants within leases.
  4. Disputes over restrictive covenants.
  5. Development agreements.
  6. Dilapidations.
  7. Professional fees.
  8. Professional negligence claims.
  9. Boundary disputes.
  10. Joint venture disputes.

What is the procedure?

The parties must first of all agree, in writing, to submit the dispute to an independent expert for settlement and accept that his/her determination is final.  

Following appointment the independent expert sends directions to the disputing parties as to how the matter should proceed.

Typically those directions will stipulate a date when both parties should submit their arguments and reasons for their side of the dispute in writing and in duplicate.  This should include documents and other evidence which may prove their assertions in the dispute.

The independent expert passes one copy of each submission to the opposing party stipulating a date when counter-arguments should be submitted.  Again, a copy of each counter-submission is passed to the opposing party for a further period of time to allow for objections to any of the information which may have been incorrectly submitted, but no further submissions are allowed.

Only at this point will the independent expert read the documents.  In many cases it is necessary for the expert to inspect the property and, sometimes, other properties where the parties have referred to them in the evidence submitted.

In addition, the independent expert seeks further evidence, possibly inspecting other properties, and researching comparable transactions or evidence of relevance to the case.

The independent expert should make determinations on matters of law where this relates to the dispute.  He/she may seek legal advice where the matter is outside his/her knowledge.  A determination is communicated to the parties.  A determination may be ‘reasoned’ where reasons for the decision are given or’unreasoned’ where only the determination is communicated.  

In most cases the determination names the parties, states the terms of reference, summarises the undisputed facts, summarises the disputed facts and the parties contentions, states the findings on the disputed facts and the reasons, and awards costs and interest if applicable.  The determination ends with a clear statement of what has been determined.

An independent expert would not award costs unless the parties had agreed that such an award is within the dispute which has been submitted for determination.

Details of negotiations prior to referring the matter to the independent expert may not be revealed.  This allows the parties to attempt to settle the matter without prejudicing  the case which they submit to the expert.

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How are charges calculated?

Our fees are calculated at an hourly rate.  The fee depends upon the amount of time expended.

Less time is expended if inspection of the property is not required, if the parties agree many of the facts in advance, if a reasoned award is not required and if documents submitted are kept to the minimum of those which are relevant to the dispute.

Costs are minimised if the parties co-operate to ask the independent expert to determine only those matters which are the essence of the dispute.

How are determinations made?

A determination is made by considering the evidence submitted, the contract between the parties, the law applicable and relevant evidence obtained by the expert.  

When is payment made?

An initial fee of £480 plus VAT is payable when the independent expert is appointed.  Our final invoice is issued prior to the determination being published.  We shall inform each party that the determination is available.  Either party may pay the fees or they may decide to each pay part of the fees.  A copy of the determination is then published to each of the parties.

Can a party appeal against the determination?

Limited rights of appeal to the Courts are available relating to areas of law, procedural irregularities or negligence.

If you have a specific problem or question please contact us for further advice.

Lloyd Davies Chartered Surveyors?

Ours is an independent firm of chartered surveyors established in 1996 providing advice on the value and condition of residential and commercial property in the London, Surrey, Hampshire, Sussex and Kent area.

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To contact us please select from the appropriate area link below:

London | Surrey | Sussex | Hampshire | Kent

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