Clive Freedman & Christopher Harris expose the dangers of unilateral communications
Disputes about expert determinations have reached the Court of Appeal three times in recent months.
In Barclays Bank Plc v. Nylon Capital LLP [2011] EWCA Civ 826, [2011] 2 Lloyd’s Rep 347 it was held that it was for the court to decide a disputed issue of construction on which the expert’s jurisdiction to reach a determination depended. In Cream Holdings Ltd v. Davenport [2011] EWCA Civ 1287 it was decided that where the expert’s proposed terms of engagement are reasonable and are consistent with the requirements of the agreement between the parties, it is necessary to imply a term requiring the parties to co-operate in the valuation process by accepting the appointment on those terms.
A two-stage expert determination procedure was the subject of the dispute in Ackerman v. Ackerman [2011] EWHC 3428 (Ch), the first-instance decision of Vos J, and [2012] EWCA Civ 768, the decision of the Court of Appeal granting limited permission to appeal.
The proceedings had their origin in a dispute between the two sides
