In the recent case of WH Holding Ltd v E20 Stadium LLP [2025] EWHC 140 (Comm), 27 January 2025, the High Court set aside an expert determination on the basis of manifest error. This is significant because expert determination is usually binding and successful applications to set it aside are relatively unusual.

The relevant dispute arose in relation to an option agreement between the Defendant (E20), the Claimant (WH Holding) and West Ham Football Club, under which the Defendant argued it was entitled to a £3.6 million profit share. The option agreement contained an expert determination provision which was final and binding in the absence of manifest error. When asked to opine on the dispute, the expert determined the issue in favour of the Defendant. WH Holding disagreed, arguing that the expert had made two manifest errors relating to:

• The Defendant's calculation of the profit share, and

• Whether the relevant agreements constituted a single transaction.

The judge provided a useful discussion on the meaning of the term ‘manifest’, stating that: “to be ‘manifest’, errors must be so obvious and obviously capable of affecting the determination as to admit no difference of opinion”. Agreeing with the Claimant, the judge stated that the expert determination in this case was “obviously wrong”. As a result, the Defendant was required to repay the £3.6 million.

The case is a helpful reminder of the need to consider what is the best forum for the resolution of contractual disputes, arbitration or expert determination or perhaps providing for disputes to be resolved by the English courts, which can be the cheapest option. An arbitrator performs a quasi-judicial role and must, therefore, decide matters on the basis of submissions and evidence put before them. In contrast, an expert, subject to the express provisions of the contract, may carry out their own investigations, form their own opinion and come to their own conclusion, regardless of any submissions or evidence presented by the parties.

Each option has its advantages and disadvantages. In particular, arbitration is considered to be more costly and time intensive, whereas expert determination is generally considered more cost effective and quicker. However, provided the contract allows for it, both of these options may be challenged, in the case of arbitration by way of appeal on points of law, but in the case of expert determination, on the grounds of 'manifest error' only where the decision is obviously wrong, as in this case.

When negotiating dispute resolution clauses in a contract the parties should consider the benefits and shortcomings of each mode of resolution. The mode of resolution will likely depend on the nature and value of the dispute. Parties might wish to include both methods of dispute resolution as options so they can, at the relevant time, decide whether the best course of resolution is, by way of expert determination or arbitration as well as providing for matters to be referred to the courts. It is unlikely that parties will want any determination to be final and binding without any right of appeal and it is advisable to include express drafting in the contract which sets out clearly the circumstances in which an appeal can be made, for example where the decision is based on arithmetical or clerical errors or where there has been an error of fact or law.