Wilky Property Holdings Plc v London & Surrey Investments Ltd

Where contractual expert determination is available, the court may stay related proceedings under its jurisdiction as reflected in CPR 3.1(2)(f). It should ask whether there is a real dispute and whether justice and convenience favour allowing the expert determination to proceed first. Undefined or fact-sensitive issues should generally be considered by the expert before the court. Claims contradicting an earlier binding determination may be dismissed, while arguable issues suitable for expert consideration should be stayed. Contractual access to records does not automatically justify broad disclosure.

The claimant issued a Part 8 claim concerning the scope and operation of an agreement under which the defendant claimed profit shares and compensatory payments. In an earlier judgment, the court held that clause 22 provided for expert determination rather than arbitration, and that an expert could determine disputes concerning the calculation of those payments and the interpretation of the agreement. The defendant then revised its statement of case and applied for a discretionary stay. The court had to determine which issues should be dismissed, stayed pending expert determination, or addressed immediately, and whether the defendant should receive disclosure and document-access orders.

1. Discretionary stay. Applying Barclays Bank v Nylon Capital [2011] EWCA Civ 826, the court considered whether each issue raised a real rather than hypothetical dispute and, if so, whether justice and convenience favoured allowing the expert determination to proceed first. The discretion under CPR 3.1(2)(f) was not subject to a prescriptive rule requiring the court to decide every issue concerning the expert’s jurisdiction in advance.
2. Paragraphs 8 and 9 were dismissed because the declarations sought contradicted the earlier decision that clause 22 extended to disputes concerning interpretation of the agreement. Paragraph 10(ii) was also to be dismissed, subject to recording the parties’ common position that the expert could not order payment, although a sum determined under the agreement would be a contractual debt subject to ordinary defences, counterclaims and set-off.
3. The remaining arguable issues were stayed. They included the scope of an Approved Scheme, the operation of clauses 16, 18 and 19, alleged rights of set-off, advances, notional profits, future rents and profits, and the net present value of the Aldershot Scheme. These issues were potentially live, fact-sensitive, or likely to arise in the expert determination. It was convenient for Mr Pye to consider them first, without the court expressing a view on their merits.
4. The court declined to decide prematurely whether a clause 18 reduction was a breach claim or part of the contractual profit-share calculation. Its earlier observations concerning breach claims were not directed to clause 18 or the issues then before it.
5. The disclosure application was adjourned generally. The parties were to identify specific documents or information sought, discuss them, and, if necessary, relist the application under CPR Part 23. No immediate order was made for access to the marketing website or broad disclosure.

This was a further first-instance judgment following the court’s earlier decision on the same dispute, reported at [2011] EWHC 2226 (Ch). No appellate decision is stated.