Court Intervention in Expert Determinations

The Court of Appeal has dismissed an appeal, and upheld a judge’s decision that an expert determination was not valid or enforceable.

Court intervention in expert determinations is rare but, in this case, the respondent successfully demonstrated to the Court of Appeal that the expert had erred in interpreting his jurisdiction or materially departed from the scope of his instruction. Accordingly, the court ordered a fresh determination.

The expert had been appointed to determine the amount to be paid for a share in a dental practice. He identified an error in the treatment of certain leases in the accounts, but concluded that it was outside the scope of his instruction to correct that error and proceeded on the basis of the accounts as they were. The Court of Appeal agreed with the judge that the question of how the leases were to be treated, and the impact on the accounts, were within the scope of the expert determination and the specific wording of the letter of instruction. The expert had, therefore, committed an error in deciding that he was prevented from applying the correct accounting policy.

Unlike a court judgment, an expert determination cannot generally be appealed. This decision illustrates one of the limited grounds on which an expert determination may be set aside. For more detail, see Practice note, Expert determination: Challenging the expert.

Case: Shafi v Rutherford [2014] EWCA Civ 1186 (19 June 2014) (Casetrack).

Written by James Naylor

Partner, CG Naylor LLP.