Now then, what is this business of expert determination? "It is a means by which the parties to a contract jointly instruct a third party to decide an issue," says Kendall, who goes on to say: "The third party is a person chosen for his expertise in the issue between the parties." And he adds: "Expert determination is quick, cheap and private … It is used to resolve issues about both small and large sums." Does all that sound familiar? Does it sound like adjudication? Well, it is not; but it is a gnat's whisker away from it. Judge Dyson, in Bouygues vs Dahl Jensen, said: "There is a reasonably close analogy between expert valuation cases and adjudication cases." The Court of Appeal didn't quarrel with that. But underline "reasonably close". That's not the same as saying it is the same.
Still, Kendall's book should be compulsory reading for all adjudicators. The reason is that we still do not really know what adjudication is, but by exploring expert determination with Kendall, the reader will be treated to the fundamentals of dispute resolution, its legal and intellectual basis.
Kendall explains that expert determination is ideal for issues that have not crystallised into a dispute. Indeed, this expert device (not to be confused with expert witness) is frequently adopted to avoid disputes. This outsider can value freeholds, shares, rents, employee bonuses, commodities, intellectual property and more.
Indeed, the origins of expert determination are in the valuation business. Let an independent person in the business fathom at arm's length an accurate answer. So the reader will be treated to the mindset required for professionally establishing not a compromise, not a carve-up, but a true answer. It would do all certifiers in the construction business – meaning architects, surveyors, engineers – a great deal of good to get this book and "feel" the mentality required for fair play in action, even when issuing certificates under building contracts.
Kendall beautifully explains that expert determination in a full-scale dispute is not a legal proceeding. That notion is, I think, at the heart of Judge Dyson's approach to adjudication. No court is involved unless there is a legal challenge; nor is there any statutory supervision by the court. True, the expert must be disinterested and unbiased, but that's the limit of the natural justice ingredient. "Due process" has to be followed in litigation and arbitration, but not in expert determination.
By exploring expert determination, the reader will be treated to the fundamentals of dispute resolution, its legal and intellectual basis
Now for that embarrassment. Kendall's book for me is the best, most accurate, most beautifully paced contribution to dispute management in years. Buy it to be a better dispute manager.
The seventh edition of Keating on Building Contracts (Sweet & Maxwell, £220) is, at last, on the bookshelves. Its aim for nigh on 46 years has been "to deal with the most important legal problems in a practical and reasonably concise way and to provide a book that will be as useful in practice as possible".
It examines, explores and explains building contract law by way of a formidable team – 17 barristers, led by editors Stephen Furst and Vivian Ramsey. It is, of course, a book for lawyers, but also for all technical dispute managers. And it's a legal handbook for arbitrators, adjudicators and all consultants advising their clients on law of construction.
But wait, it is also a handbook for all contractors, contract administrators, architects, engineers and even the odd QS (or maybe especially them). And yes, it includes adjudication with the acknowledgement that "adjudication has largely confounded its critics and become an established feature of dispute resolution". What would the original author have said about this upstart 46 years ago? Mr Keating would have adopted the idea with calm acceptance, as was his style.
Postscript
Tony Bingham is a barrister and arbitrator specialising in construction.
