Civil Engineering Reference
In-Depth Information
Incasesoffraudorcollusionbytheexpert,thedeterminationwouldnotbebinding,
irrespective of whether this affected the result, see
Veba Oil Supply & Trading GmbH
and
Campbell
.
he expert does not have immunity if he has acted negligently and it would be open
to the party who sustained a loss due to such negligence to pursue a claim against the
expert for loss suffered. In this respect the position of the expert is different from that
of arbitrators and adjudicators. See
Arenson
v.
Casson, Beckman Rutley & Co
(1977)
and
Palacath
v.
Flanagan
(1985). It is of course open for the parties to agree to exclude
any such liability on the part of the expert by means of an express term in the appoint-
ment, and it is common for an expert to insist on such an exclusion as a condition of
him accepting an appointment.
The advantages of expert determination are that it is private, it can be cost-effective
andspeedyandthedecisionismadebyapersonskilledintherelevantarea.hedis-
advantages are the lack of control which may be exercised by the courts in a situation
where an expert is making a final and binding decision, given the unavailability of any
appeal and the very restricted grounds for challenge available.
18.4 Early neutral evaluation
Early neutral evaluation is a process whereby parties may present their cases to an
independent third party who will then give their preliminary views of the likely ulti-
mate outcome of the case or of particular aspects of it. The evaluation of the case is
non-binding but may assist parties in any negotiations or avoid unnecessary other
forms of procedure. Parties agree the matters to be submitted to the process and the
material to be presented to the evaluator. It is possible for this to be dealt with on the
basis of only written submissions and documents or to include a hearing with oral
submissions.hiswouldbeamattereitherforagreementbythepartiesorforthe
evaluator to direct.
This is a process which is offered by the English courts and there is provision in
their court rules for a judge to act as the evaluator. The rules provide that in what are
considered to be appropriate cases, and with the agreement of all parties, the court
will provide a without prejudice, non-binding evaluation of a dispute or particular
issue. The judge who conducts the evaluation is then not involved any further in the
case, and if the case proceeds following the evaluation it is dealt with by a different
judge.
The advantages of the procedure are that at an early stage, and before significant
costs are incurred, parties can be given an indication of where matters might ulti-
mately end up, thereby facilitating negotiations and resolution. Should the view be
negative for one party, it allows them to make an early decision on whether or not to
proceed further and, potentially, to obtain the further evidence which is required to
avoid the predicted outcome. The procedure is confidential. The disadvantage, if one
party receives a negative appraisal of their prospects, is that that party has effectively
'shown its hand' and others will be aware that there exists a poor view on prospects,
which could make a negotiated settlement on good terms more difficult to achieve.
