What is Expert Determination?
Expert determination is a private, contractually agreed way of resolving disputes. It involves appointing an independent expert to make a decision on things like liability and who’s responsible for costs. Unlike traditional courtroom litigation or even arbitration proceedings, expert determination is not governed by a strict set of procedures and rules. Instead, the expert is the decision maker, and their authority comes directly from the agreement between the two parties, or a specific process may be set out in the contract
This process is especially suited to disputes where the technical matters are more important than the legal interpretation. For example, determining the cause of a defects, delay, establishing workmanship, or even clarifying measurement or boundary issues are all better served by expert opinion. Because these things rely on specialist knowledge, the first step is to appoint an expert to provide practical and informed judgements, and that expert is often a building surveyor.
Why Choose a Building Surveyor as Your Expert?
Building surveyors are the perfect choice for expert determination, because they are not only qualified, but they have hands-on experience working with buildings and construction projects. They understand construction methodology, regulations and diagnostics in a way a legal professional would not. A surveyors’ technical background allows them to:
• Identify and analyse defects
• Review and interpret plans, specifications and records
• Assess workmanship against industry standards
• Estimate reasonable costs based on recognised methods
• Provide authoritative views on compliance and best practice
These skills are particularly valuable when the dispute needs a solid, real-world understanding of construction issues. Instead of relying on multiple expert witnesses, the decision-maker themselves is the expert, which simplifies the whole process.
How Does the Expert Determination Process Work?
Although expert determination is a flexible thing, most will follow a recognisable set of steps:
1. Agreement to use expert determination: First, there needs to be an agreement. This is either a clause in the original contract or a separate agreement that’s made after the dispute arises. It’s important for both parties (or the agreement) to specify whether the determination will be binding, what the expert’s powers and responsibilities are, the timetable and procedures to be followed, and how the fees will be shared or determined. Clear scoping is essential to the process, as the expert has to stay strictly within the authority given by both parties.
2. Appointment of the building surveyor: The parties either agree on a suitable surveyor, or they ask a professional body like the RICS to nominate one. The chosen expert must be independent, impartial, and technically competent in the subject matter. They will then formalise the appointment with terms of engagement, and outline the exact procedure they intend to follow.
3. Defining the issues: Next, all parties need to confirm the exact questions the expert must answer.
These can include:
• Does a defect exist, and what is its cause?
• What’s the reasonable cost of proposed remedial works?
• Has the contractor met the required standard of workmanship?
• How should a boundary be interpreted from the available evidence?
Once defined, the expert can’t go beyond those questions, which is why you need to be clear in choosing them up-front. Careful consideration can prevent further challenges or misunderstandings in the future.
4. Gathering evidence and submissions: Both parties now need to submit their evidence.
This might include:
• Plans, drawings and specifications
• Site photographs and inspection reports
• Communications between contractors, clients or consultants
• Schedules of work or valuations
• Technical reports and previous expert opinions
The expert has the flexibility to request additional documentation, ask questions, or seek clarification from either party.
5. Site visits and technical investigation: One of the bonuses of choosing a building surveyor as your expert is the fact that they can assess the physical issues directly. For example, they can inspect the building or the land, take measurements and photos, use diagnostic tools to identify defects, review workmanship alongside specifications, and compare completed work to industry standards. This hands-on approach leads to decisions that are grounded in practical reality, rather than abstract legal argument.
6. Analysis and decision-making: Using their professional judgement, industry knowledge and technical training, the expert must now analyse all of the information. They’re not bound by the strict evidential rules of court or arbitration, which means they can reach a practical and reasoned decision efficiently.
7. Issuing the determination: Finally, the expert issues a written determination, addressing each question clearly. If binding, it’s final and has limited grounds for challenge. If it’s non-binding, it still provides a strong basis for settlement or negotiation.
The Advantages of Expert Determination
Expert determination has a range of advantages over traditional court systems as a method of dispute resolution, including:
Technical expertise: An expert will have specialist, expert knowledge. Building surveyors understand construction much better than most legally trained decision makers, which means their decisions are going to be more informed and reliable.
Speed and efficiency: Without any formal hearings or complex procedures to follow, expert determinations are usually faster than arbitration or litigation. Disputes can be resolved within weeks instead of months.
Cost-effectiveness: Because the process is simpler (and doesn’t involve multiple legal professionals) it’s also a much more cost-effective option to resolve disputes.
Flexibility: The parties involved are the ones who control the process. Evidence can be informal, timetables can be tight, and the procedures followed can be tailored to the dispute’s needs.
Confidentiality: The whole process is private, which protects commercial relationships and reputations moving forward.
Finality: For binding determinations, the outcome is decisive and delivers a level of certainty, which can be particularly valuable in construction relationships that are ongoing.
Disadvantages of Expert Determination
Of course, like most things, there are some limitations to expert determination too. It’s worth considering things like:
Limited ability to appeal: Because the process is designed for finality, any errors are difficult to challenge – unless they’re serious or procedural. Courts very rarely overturn determinations unless the expert exceeded their authority.
Not suitable for legal or multi-party disputes: If the dispute turns on legal interpretation or involves many parties, processes like arbitration or litigation are often more appropriate.
Quality depends on the expert: Choosing the wrong expert can lead to flawed outcomes. After all, the entire process hinges on the skill and impartiality of the building surveyor.
Less procedural protection: The informal nature of the process can be uncomfortable for people who want structured evidential rules.
Enforcement is contractual: While binding determinations can be enforced, they don’t carry the same statutory weight as arbitration awards or court judgments.
There’s no denying that expert determination led by a building surveyor is a powerful tool for resolving technical construction disputes quickly and efficiently. While it’s not perfect for every situation, it’s ideal when the issues are technical, and where both parties value speed, expertise and confidentiality. In fact, with careful planning, it can be one of the most effective methods of resolving disputes out there. At Harrison Clarke, we are happy to assist in dispute resolution, including expert determination. If you’d like to know more, or to discuss an issue with us, just get in touch with one of the team today.
For more expert advice on surveying and property matters, check out our range of informative videos on our website or YouTube channel. Harrison Clarke Chartered Surveyors is here to guide you every step of the way!
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