In Braceforce Warehousing Limited v Mediterranean Shipping Company (UK) Limited  EWHC 3839 (QB) Ramsey J (Sir Vivian Ramsey, the judge in charge of Technology and Construction, Queens bench Division), was considering arguments in relation to the commencement of an expert determination over defects in a warehouse the subject of an Agreement to Lease. Just before the 6 year limitation period (dating from the agreement) was to expire, the parties had exchanged letters in relation to extending the limitation period and appointing the expert.
His Honour observed that the Limitation Act did not seem to apply to expert determination (His Honour did not need ultimately to resolve this). Ultimately, His Honour concluded that Mediterranean’s letter proposing an expert for agreement, and advising that failing agreement it would apply to appointing body for an appointment, had commenced the expert determination procedure sufficient to stop any limitation period applying (if, in fact, a limitation period did apply in relation to expert determination).
His Honour, then, in addressing the appropriate forum where two valid sets of proceedings had been commenced, referred to the following passage from the speech of Lord Mustill in the House of Lords in Channel Tunnel Group v Balfour Beatty ….
Having made this choice I believe that it is in accordance not only with the presumption exemplified in the English cases cited above that those who make agreements for the resolution of disputes must show good reasons for departing from them, but also with the interests of the orderly regulation of international commerce that, having promised to take their complaints to the experts and if necessary to the arbitrators, that is where the appellant should go. The fact that the appellants now find their chosen method too slow to suit their purpose is, to my way of thinking, quite beside the point.
His Honour concluded:
This is a case where the Part 8 proceedings have been brought to prevent the expert determination continuing on grounds of lack of jurisdiction and I have rejected that application. The general position is that parties should be held to the terms of their contracts, but the court retains a discretion in each case. I am not persuaded in this case that the existence of the protective proceedings in court or the fact that, as in the Channel Tunnel case, the claimant now finds the chosen method of dispute resolution unsuitable, are factors which are so persuasive that they should outweigh the principle that the parties should be held to the agreed method of dispute resolution in accordance with clause 24 of the Agreement (emphasis added) .
This decision is modern high-level authority for the principle that, In cases where an expert determination clause is contained in an agreement, but one party then decides it prefers the proceedings to be litigated, the courts will require strong grounds to persuade them from the presumption that the parties should be held to their agreement.