The Court held that an expert determiner who preferred one party's quantities and rates over the other, applied an onus of proof, and resolved the dispute on the papers without offering cross-examination did not thereby act as an arbitrator rather than an expert, where the contractual framework and agreed procedural orders contemplated that approach. The combined effect of a contractual clause that the expert 'will not act as an arbitrator' and the Resolution Institute Rules deeming the expert not to be acting in an arbitral capacity was to ensure that, provided the expert exercised their own expertise, skill and knowledge within the agreed process, the determination would be treated as an expert determination regardless of overlap with arbitral characteristics. The Court also held that gross negligence was not established where the expert acted in accordance with the contractual process and applied professional judgment, even where the expert did not independently remeasure the works.
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