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EXPERT DETERMINATION PROCESSES |
7.0 Procedural Rules and Requirements
7.1 Timetable: the timetable shall be variable at the discretion of the Expert.
7.1.1 Within ten days of the date on which the Expert accepts appointment, the Claimant shall provide the following to any other party and to the Expert: (a) a written document setting out the nature of the disagreement, the contractual and factual issues involved, his submissions in relation to those issues of his claim; and (b) all documents and other evidentiary material on which he relies (‘the claim’).
7.1.2 Within ten days after receipt of the claim, all parties shall provide any other party and the Expert with: (a) a written document indicating whether or not he agrees with the Claimant’s description of the disagreement and, if not, his statement of the nature of the technical issue/s (including any cross claim), the contractual and factual issues involved in the claim and any cross claim, his submissions in relation to those issues, and any cross claim and (b) all documents and other evidentiary material on which he relies (‘the response’).
7.1.3 Within five days after receipt of the response, any party may provide to the Expert and the other party: (a) a written document indicating whether he agrees with the response and, if not, why he disagrees; and (b) any documents or other evidentiary material in relation to the response and/or the cross claim (‘the reply’).
7.1.4 If a cross claim is made under rule
7.1.2 then the cross claimant may serve a reply to the written material served in response to such a cross claim under rule 7.1.3. Such reply shall be served within five days of receipt of the reply under rule 7.1.3.
7.2 Meetings/hearings
7.2.1 If he considers it necessary, the Expert may at any stage hold a meeting or teleconference/web conference with both of the parties, but not with one in the absence of the other, to clarify the issues in disagreement and make such orders as he considers necessary for the fair and expeditious determination of the matter.
7.2.2 All parties will be given at least five days notice (or such shorter period as the parties and the Expert agree) that such a meeting/teleconference/web conference is to be held.
7.2.3 At least three days (or such shorter period as the parties and the Expert agree) before such a meeting or teleconference/web conference the Expert must inform the parties in writing of any specific matters to be addressed at the meeting.
7.2.4 The Expert may also hold a substantive hearing if he considers it necessary to determine the matter.
7.2.5 All parties will be given at least ten days notice that such a substantive hearing is to be held.
7.2.6 At least five days before such a substantive hearing the expert must inform the parties in writing of any specific matters to be addressed at the hearing.
7.3 Expert Evidence
7.3.1 Where exceptionally a party or both parties has considered it desirable to engage their own expert, the Expert may, if he considers it appropriate, direct that the party’s or parties’ expert(s) attend a meeting with him so as to narrow the issues in disagreement; or direct that the parties’ experts shall meet and discuss matters relevant to their expertise, and produce a joint statement of experts, setting out those matters on which they are agreed, and those matters on which they do not agree, with reasons for such disagreement. Where the Expert attends a meeting of parties’ experts, the Expert shall have total discretion over the procedure adopted and the recording of any decisions made at such a meeting.
7.4 Withholding information by reason of confidentiality
7.4.1 A party may invoke the confidentiality of information it wishes or is required to submit for Expert Determination. The party shall submit the information to the Expert stating the reasons for which it considers the information to be confidential. If the Expert determines that the information is to be classified as confidential, he shall decide under which conditions and to whom the confidential information should be disclosed.
7.5 Power to impose sanctions
7.5.1 Where a party has failed to provide the Expert with information which he has requested or where a party has failed to attend a meeting, the Expert may serve on the party a notice stating that unless the information is served within five days or the party attends a meeting on a set date he will proceed to determine the matter in the absence of the information/the meeting.
7.5.2 The Expert is entitled to draw adverse inferences, where appropriate, from the non- production of information or non-attendance at a meeting.
7.5.3 The Expert shall determine the dispute on the basis of information that is before him.
7.6 The Expert Determination
7.6.1 Subject to any mutual agreement otherwise by the parties, the Expert shall deliver his Expert Determination in writing within 14 days after the close of submissions from all parties, and in any case, after the parties have paid all deposits and payments required by the Expert for the Expert Determination. If any party has not paid the deposit and costs, the other party may do so on behalf of the defaulting party and claim such amounts as a debt from the other party, unless otherwise agreed in writing by all the parties.
7.6.2 The Expert may make separate Expert Determinations as to separate specific dispute/s referred to him for his determination if so mutually agreed by the parties.
7.6.3 The Expert may in writing, within 14 days after issue of his Expert Determination, correct his Expert Determination for any clerical mistake, error arising from accidental slip or omission, pure mathematical miscalculation of figures, or clerical mistake in description of an item or matter, and such correction will not be deemed to affect the finality of his Expert Determination as provided by these Rules.
7.6.4 Unless otherwise agreed by the parties and communicated to the Expert in writing at the time of his appointment, the Expert will not give reasons for his determination.
7.1 Timetable: the timetable shall be variable at the discretion of the Expert.
7.1.1 Within ten days of the date on which the Expert accepts appointment, the Claimant shall provide the following to any other party and to the Expert: (a) a written document setting out the nature of the disagreement, the contractual and factual issues involved, his submissions in relation to those issues of his claim; and (b) all documents and other evidentiary material on which he relies (‘the claim’).
7.1.2 Within ten days after receipt of the claim, all parties shall provide any other party and the Expert with: (a) a written document indicating whether or not he agrees with the Claimant’s description of the disagreement and, if not, his statement of the nature of the technical issue/s (including any cross claim), the contractual and factual issues involved in the claim and any cross claim, his submissions in relation to those issues, and any cross claim and (b) all documents and other evidentiary material on which he relies (‘the response’).
7.1.3 Within five days after receipt of the response, any party may provide to the Expert and the other party: (a) a written document indicating whether he agrees with the response and, if not, why he disagrees; and (b) any documents or other evidentiary material in relation to the response and/or the cross claim (‘the reply’).
7.1.4 If a cross claim is made under rule
7.1.2 then the cross claimant may serve a reply to the written material served in response to such a cross claim under rule 7.1.3. Such reply shall be served within five days of receipt of the reply under rule 7.1.3.
7.2 Meetings/hearings
7.2.1 If he considers it necessary, the Expert may at any stage hold a meeting or teleconference/web conference with both of the parties, but not with one in the absence of the other, to clarify the issues in disagreement and make such orders as he considers necessary for the fair and expeditious determination of the matter.
7.2.2 All parties will be given at least five days notice (or such shorter period as the parties and the Expert agree) that such a meeting/teleconference/web conference is to be held.
7.2.3 At least three days (or such shorter period as the parties and the Expert agree) before such a meeting or teleconference/web conference the Expert must inform the parties in writing of any specific matters to be addressed at the meeting.
7.2.4 The Expert may also hold a substantive hearing if he considers it necessary to determine the matter.
7.2.5 All parties will be given at least ten days notice that such a substantive hearing is to be held.
7.2.6 At least five days before such a substantive hearing the expert must inform the parties in writing of any specific matters to be addressed at the hearing.
7.3 Expert Evidence
7.3.1 Where exceptionally a party or both parties has considered it desirable to engage their own expert, the Expert may, if he considers it appropriate, direct that the party’s or parties’ expert(s) attend a meeting with him so as to narrow the issues in disagreement; or direct that the parties’ experts shall meet and discuss matters relevant to their expertise, and produce a joint statement of experts, setting out those matters on which they are agreed, and those matters on which they do not agree, with reasons for such disagreement. Where the Expert attends a meeting of parties’ experts, the Expert shall have total discretion over the procedure adopted and the recording of any decisions made at such a meeting.
7.4 Withholding information by reason of confidentiality
7.4.1 A party may invoke the confidentiality of information it wishes or is required to submit for Expert Determination. The party shall submit the information to the Expert stating the reasons for which it considers the information to be confidential. If the Expert determines that the information is to be classified as confidential, he shall decide under which conditions and to whom the confidential information should be disclosed.
7.5 Power to impose sanctions
7.5.1 Where a party has failed to provide the Expert with information which he has requested or where a party has failed to attend a meeting, the Expert may serve on the party a notice stating that unless the information is served within five days or the party attends a meeting on a set date he will proceed to determine the matter in the absence of the information/the meeting.
7.5.2 The Expert is entitled to draw adverse inferences, where appropriate, from the non- production of information or non-attendance at a meeting.
7.5.3 The Expert shall determine the dispute on the basis of information that is before him.
7.6 The Expert Determination
7.6.1 Subject to any mutual agreement otherwise by the parties, the Expert shall deliver his Expert Determination in writing within 14 days after the close of submissions from all parties, and in any case, after the parties have paid all deposits and payments required by the Expert for the Expert Determination. If any party has not paid the deposit and costs, the other party may do so on behalf of the defaulting party and claim such amounts as a debt from the other party, unless otherwise agreed in writing by all the parties.
7.6.2 The Expert may make separate Expert Determinations as to separate specific dispute/s referred to him for his determination if so mutually agreed by the parties.
7.6.3 The Expert may in writing, within 14 days after issue of his Expert Determination, correct his Expert Determination for any clerical mistake, error arising from accidental slip or omission, pure mathematical miscalculation of figures, or clerical mistake in description of an item or matter, and such correction will not be deemed to affect the finality of his Expert Determination as provided by these Rules.
7.6.4 Unless otherwise agreed by the parties and communicated to the Expert in writing at the time of his appointment, the Expert will not give reasons for his determination.
