Expert determination set aside

In Griffin v. Wainwright and another [2017] EWHC 2122 (Ch), the High Court set aside an expert determination on the grounds of procedural unfairness. After completing her original determination, but before releasing it, the expert had communicated with one of the parties (G) but not informed the other party, W, of those communications. The expert later revised her determination and then released it. The court held it was unfair given that she had not given W a chance to make submissions on the issues raised in her communications with G.

Parties who appoint an expert to determine a [usually technical] dispute, should remember that any approaches to the expert must be shared with the other party to ensure fairness and transparency in dealing with the disputed issues.

Also, be aware that an expert has power to change her/his decision up until the point it is released to the parties. At that point, she/he becomes "functus officio" and has no further powers to act in relation to the expert determination.

Resolving consumer disputes and the effectiveness of ADR and the courts

The Department for Business, Energy & Industrial Strategy (BEIS) has issued its final report on "Resolving Consumer Disputes: Alternative Dispute Resolution and the Court System". ICF Consulting Services Limited carried out a study for BEIS into the impact and effectiveness of ADR and the courts in resolving consumer disputes with traders.

While Dentons' clients deal mainly with other traders and business organisations rather than direct with a consumer, it is interesting to note the reasons why the traders and consumers involved in the study did not use ADR to solve their disagreements. Reasons included: consumers' lack of confidence that ADR would be effective (13 per cent); traders refusing to participate (70 per cent of consumers who had not used ADR before); ADR providers not responding (7 per cent); or the parties being unaware that ADR was available (5 per cent).

Clearly, there is much work still to be done to persuade people of the benefits of ADR. 

Further reading

If you are struggling to persuade another party to engage in ADR, take a look at our article: Just get on with it – more reasons to mediate (and a look at some of the excuses people use to avoid ADR). It sets out some of the common responses that are received to requests to mediate and sets out some suggestions on how to deal with those who are unwilling to engage.

We considered the construction industry's gradual embrace of ADR procedures as well as conflict avoidance schemes in this article: How to tackle disputes: Conflict avoidance and ADR (which was first published in Construction News, 20 March 2018).

The future role of ADR: Law Society and Bar Council responses

In that last article (How to tackle disputes …), we reported on the Civil Justice Council's (CJC) ADR consultation into the future role of ADR in the civil justice system. The CJC's interim report was published in autumn 2017 and various bodies have now published their responses.

The Law Society supports the CJC's work on ADR issues and agrees with the CJC that: the take-up of ADR is patchy and inadequate; there should be better signposting for ADR to increase its take-up; and, notably, ADR should not be mandatory before the issue of court proceedings.

The Bar Council advocates making ADR culturally normal. It believes that the focus of any reform needs to be on continuing education and improving communication with professionals and the public – with a view to enabling disputing parties to be better served by settling a case without having to go to court.

Other groups and bodies have expressed their views and these can be viewed on the CJC website here.