Worrall & Anor v Topp

An expert appointed under a contract to determine a dispute must act fairly. Ordinarily, each party should have an opportunity to respond to communications or material supplied by the other. A failure to copy material does not automatically invalidate the determination. The court must assess all the circumstances, including the nature of the communication, whether the other party already knew of the material, and the effect of the material on the expert’s decision. Relief is unnecessary where the omission was not material and the expert would probably have reached the same conclusion without it.

The appellants appealed against an order of HH Judge Elly refusing to set aside a surveyor’s determination concerning the boundary between neighbouring properties. The parties had settled earlier proceedings by a consent order requiring an independent surveyor to determine the boundary, subject to specified contractual terms.

The surveyor received documents from the respondent’s solicitor which were not copied to the appellants. The appellants argued that the resulting determination was procedurally unfair because the surveyor relied on those documents when assessing the length and position of the boundary. HH Judge Elly rejected that argument. The central issue on appeal was whether the failure to provide the documents to the appellants made the surveyor’s determination unfair and liable to be set aside.

1. Appeal dismissed. The surveyor’s original determination was made in accordance with the parties’ contractual arrangement and was not vitiated by procedural unfairness.
2. The starting point was the contract. The relevant terms permitted the surveyor to determine the boundary after considering the evidence, documents placed before him and the position on the ground. They contained no express prohibition on considering documents sent by one party’s solicitor.
3. Nevertheless, the surveyor was subject to an implied obligation to act fairly. It was highly desirable that communications with a jointly instructed expert should be copied to all parties, since fairness would generally require an opportunity to respond. Whether a failure to do so invalidated the decision depended on all the circumstances, including the nature of the communication, the extent to which the other party already knew of the material and the effect it had on the expert’s decision.
4. The failure in this case was unfortunate but not material. The principal plan had been available to the appellants and contained a measurement which assisted their own case. The council plan was irrelevant and formed no part of the surveyor’s reasoning. The respondent’s plans were considered, but the surveyor derived the same measurement from the Land Registry plans and his own site inspection.
5. It was overwhelmingly likely that the surveyor would have reached the same conclusion without the respondent’s plans. His reasons independently relied on the other measurements and on his view that changes to the rear corner of the site made the shorter historic measurement unreliable. The subsequent correspondence and revised plan reinforced that conclusion.
6. The appeal was therefore dismissed.

1. High Court (Chancery Division): Appeal from an order of HH Judge Elly dated 14 February 2007. The appeal was dismissed.