Expert Determination in Construction Disputes Using Building Surveyors

What Is Expert Determination?

Expert determination is a private, contractually agreed method of resolving disputes by appointing an independent expert to make a decision. Unlike courtroom litigation or even arbitration, expert determination is not governed by complex procedural rules. Instead, the expert’s authority comes directly from the agreement between the parties.

This process is particularly suited to disputes where technical matters are more important than legal interpretation—for example, determining the cause of a defect, establishing the reasonable cost of repairs, clarifying measurement or boundary issues, or evaluating workmanship. Because these matters rely on specialist knowledge, the appointment of a building surveyor provides practical, informed judgment rather than purely legal reasoning.

Why Choose a Building Surveyor as the Expert?

Building surveyors bring not only qualifications but extensive hands-on experience with buildings, construction methodology, regulations, and diagnostics. Their technical background allows them to:

These skills make building surveyors especially valuable where the dispute depends on understanding real-world construction issues. Instead of relying on multiple expert witnesses, the decision-maker themselves is the expert, simplifying and streamlining the entire process.

The Expert Determination Process

Although expert determination is flexible, it generally follows a recognisable sequence of steps.

The starting point is an agreement—either a clause in the original contract or a separate agreement made after a dispute arises.

It is important for the parties or agreement to define the issues the expert is to determine, whether the determination will be binding, the expert’s powers and responsibilities the timetable and procedures, how fees will be shared

Clear scoping is essential because the expert must stay strictly within the authority given by the parties.

The parties either agree on a suitable surveyor or ask a professional body, such as the RICS, to nominate one. The chosen expert must be independent, impartial, and technically competent in the subject matter. They formalise the appointment with terms of engagement and outline the procedure they intend to follow.

3. Defining the Issues

A key early step is confirming the exact questions the expert must answer. These may include:

Once defined, the expert cannot go beyond these questions. Clarity here prevents future challenges or misunderstandings.

4. Gathering Evidence and Submissions

Both parties then submit their evidence. This might includes:

The expert has flexibility to request additional documentation, ask questions, or seek clarification from either party.

5. Site Visits and Technical Investigation

One of the strengths of appointing a building surveyor is their ability to assess the physical issues directly. The expert may:

This hands-on approach leads to decisions grounded in practical reality rather than abstract argument.

6. Analysis and Decision-Making

Using their professional judgment, industry knowledge, and technical training, the expert analyses all information. They are not bound by the strict evidential rules of court or arbitration, allowing them to reach a practical, reasoned conclusion more efficiently.

7. Issuing the Determination

The expert issues a written determination addressing each question clearly. If binding, it is final with limited grounds for challenge. If non-binding, it still provides a strong basis for settlement or negotiation.

Advantages of Expert Determination

Expert determination offers several notable benefits.

The greatest strength is the expert’s specialist knowledge. Building surveyors understand construction better than most legally trained decision-makers, resulting in more reliable and informed decisions.

2. Speed and Efficiency

Without formal hearings or procedural steps, expert determination is usually faster than arbitration or litigation. Many disputes are resolved within weeks instead of months.

The simplified process and reduced need for lawyers or multiple expert witnesses typically make it one of the most economical ADR options.

4. Flexibility

The parties control the process. Evidence can be informal, timetables can be tight, and the procedure can be tailored to the dispute’s needs.

5. Confidentiality

The process is private, protecting commercial relationships and reputations.

6. Finality

For binding determinations, the outcome is decisive and delivers certainty, which can be particularly valuable in ongoing construction relationships.

Disadvantages of Expert Determination

Despite its strengths, expert determination also has limitations.

1. Limited Ability to Appeal

Because the process is designed for finality, errors—unless serious or procedural—are difficult to challenge. Courts rarely overturn determinations unless the expert exceeded their authority.

2. Not Suitable for Legal or Multi-Party Disputes

If the dispute turns on legal interpretation or involves many parties, processes like arbitration or litigation may be more appropriate.

Choosing the wrong expert can lead to flawed outcomes. The entire process hinges on the skill and impartiality of the building surveyor.

4. Less Procedural Protection

The informal nature of the process can be uncomfortable for parties who want structured evidential rules.

5. Enforcement is Contractual

While binding determinations can be enforced, they don’t carry the same statutory weight as arbitration awards or court judgments.

Conclusion

Expert determination led by a building surveyor is a powerful tool for resolving technical construction disputes quickly, efficiently, and cost-effectively. While not appropriate for every situation, it excels when the issues are technical and where parties value speed, expertise, and confidentiality. With careful planning and expert selection, it can be one of the most effective forms of ADR available.

At Harrison Clarke we can assist in dispute resolution including Expert Determination. For more content or to make contact with us head over to our website Harrison Clarke.co.uk

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