In Braceforce Warehousing Limited v Mediterranean Shopping Company (UK) Limited [2009] EWHC 3839 (a judgment dated June 2009 but only recently made available) Mr Justice Ramsey considered, obiter, whether the Limitation Act 1980 applies to expert determination proceedings. The court held that an expert appointed under a contractual expert determination clause had jurisdiction to determine a contractual dispute between the parties. The limitation period was not applicable to the expert determination and, even if it was, a request had been made for expert determination before the expiry of any limitation period.
The case involved a Part 8 claim by the claimant seeking a declaration as to expert determination jurisdiction and parallel Part 7 proceedings commenced by the defendant contending that the expert had no jurisdiction or alternatively that expert determination should be stayed and the dispute should be resolved by court proceedings. Ramsey J had to consider the point at which expert determination proceedings could be said to have commenced.
Ramsey J held that the expert determination proceedings commenced when one party wrote to the other asking them to agree on the appointment of an expert, rather than on the actual appointment of that expert. In doing so, Ramsey J noted, obiter, that he doubted whether the Limitation Act 1980 applied to expert determination proceedings.
The case provides useful guidance on issues of limitation and expert determination jurisdiction in general. Whilst Ramsey J's comments regarding the Limitation Act are helpful, in order to avoid uncertainty, parties drafting expert determination clauses may wish to insert specific provisions to ensure that disputes can only be referred to expert determination within a certain timeframe.
It is noteworthy that in relation to mediation, the Mediation Directive requires member states to ensure that parties seeking to mediate are not subsequently prevented from litigating or arbitrating because of the expiry of the limitation period during the mediation process.