ReSolution Issue 21, June 2019 | Page 10

The court found in favour of the landlord, confirming that it is competent for contracting parties to confer upon a non-legal expert exclusive jurisdiction on matters of both fact and law. In her judgment, Lady Wolffe made reference to Ashtead and other case law, and found that it is a matter of contractual interpretation as to whether parties have so conferred exclusive jurisdiction. She held that, in this instance, "there is no ambiguity in the finality provision. It could not be clearer in its terms". She noted that two other features of the lease reinforced the intention to confer exclusive jurisdiction: first, the absence of a requirement for the expert to provide reasons for her determination (as such a requirement might indicate a right to appeal); and second, the fact that the lease did not carve out from the expert's jurisdiction any particular types of dispute or legal questions (indicating an intention for all types of disputes remitted to the expert to have the benefit of finality on matters of both fact and law).
Lady Wolffe found that even if there had been an error of law, the expert's decision was final and conclusive unless it could be proved that the expert had not performed the task assigned to her. Here, the task assigned to the expert was to determine the new open market rent, and she had done just that. In any case, Lady Wolffe also found that the tenant had failed to demonstrate any error of law.
What now?
Reading these two cases together, it is clear that if parties to a lease wish to confer exclusive jurisdiction on an independent expert, particularly on matters of law, this must be clearly and explicitly stated in the lease. As seen in Cine-UK, the other clauses in the lease should reinforce this intention, for example by not requiring the expert to give reasons for his/her decision. If there is any room for doubt as to whether parties meant to confer exclusive jurisdiction, it is likely that the courts will follow Ashtead and say that none was conferred.
When entering into a lease, the parties should therefore think carefully about their preferred dispute resolution method(s) and the lease should be drafted accordingly. They should think about