HMS Group Specialising in Arbitration, Adjudication, Expert Determination, Expert Witness Services, and Quantity Surveying.

Definition: Parties agree, typically in a contract or by subsequent agreement, to use expert determination to resolve certain disputes.
Scope: The agreement should outline the nature of disputes or questions suitable for expert determination.

A party formally initiates the expert determination process, often by serving notice on the other party, specifying the nature of the dispute.

Mutual Agreement: Parties might agree on a specific expert.
Nominating Body: If parties can’t agree, an expert may be appointed by a previously agreed upon or relevant nominating body. Qualifications: Expert typically has specific qualifications or experience relevant to the nature of the dispute.

Details: The expert’s mandate is defined, which includes the scope of the dispute, the questions to be answered, the powers of the expert, and the procedure to be followed.
Binding Nature: It should be established whether the expert’s determination will be binding and if there’s any avenue for challenging the decision.

Initiating Party: Provides detailed submission about the nature of the dispute, supporting arguments, and any necessary evidence. Responding Party: Gives their counter-arguments, supporting reasons, and evidence.

Data Collection: The expert might require further information or evidence from the parties.
Site Visits: If the matter is related to a physical subject (e.g., construction disputes), the expert may conduct site visits.
Independent Research: The expert may conduct their own research or consult other experts if needed.

The expert might provide a draft determination to give parties a chance to comment or correct any factual errors.

The expert provides a written determination, detailing their findings, reasons, and any remedies or resolutions.
The determination is generally binding on parties unless they’ve agreed otherwise or there’s a right of appeal on limited grounds.

The costs of the expert determination process, including fees of the expert, are typically borne as agreed upon in the initial contract or as decided by the expert based on the outcome.

The process concludes upon the expert’s determination and any subsequent challenge or appeal (if available).
Typically, expert determinations are confidential between the parties and the expert, unless disclosure is required by law or agreed upon by the parties.

The legal team identifies the necessity for an expert opinion on a specific issue in a case. This can arise in complex cases where the court or tribunal requires specialized knowledge to understand the matter at hand.

Research and Identification: Attorneys research and identify potential expert witnesses based on the subject matter and required expertise. Vetting: Before retaining, the expert’s credentials, prior testimony, publications, and potential conflicts of interest are examined. Engagement: Once chosen, the expert is formally engaged, often through a written agreement detailing the scope of work, fees, and other terms.

The legal team provides the expert with relevant documents and evidence.
The expert conducts a preliminary assessment to determine the strength of the case from their perspective.

Data Gathering: The expert may require additional information or data, which is then collected and analyzed. Drafting the Report: The expert prepares a detailed written report outlining their findings, conclusions, and the basis for their opinion. This is typically submitted to the court, the opposing side, and other relevant parties. Review and Finalization: The report may undergo revisions based on feedback from the legal team or in light of new evidence.

Discovery/Document Exchange: The expert’s report is disclosed to the opposing side as part of the discovery process or as required by court rules. Deposition or Examination for Discovery: The opposing side might question the expert in a deposition (in jurisdictions like the U.S.) or during an examination for discovery to understand the expert’s views and challenge them later in court.

Direct Examination: The side that engaged the expert will first question the expert in court to establish their credentials and present their findings.

Cross-Examination: The opposing side will question the expert to challenge their credibility, methodology, or conclusions.

Redirect: If needed, the expert may be questioned again by the engaging side to clarify any points raised during cross-examination.

Additional Reports or Analysis: Depending on the court’s directions or in light of new evidence, the expert may need to provide supplementary reports or analysis.

Feedback: The legal team may provide feedback to the expert regarding their performance, especially if they might collaborate on future cases.

Once the case concludes and no further analysis or testimony is needed, the expert’s engagement ends. Fees are settled, and the expert is formally released from their obligations.