Dandara South East Limited v Medway Preservation Limited & Anor

This is my judgment on the defendants’ application for summary judgment against the claimant, Dandara. Dandara was the purchaser of land I will call “the Property” at Commissioners Road, Strood, Kent, on 30 June 2022, for £8.675 million. The first defendant, Medway Preservation Limited, was the seller and the second defendant, Medway Preservation Development Limited, the contractor. I need not differentiate, for the purpose of this judgment, between the first and second defendants in the main, so I will refer to them as “the defendants” and to individual defendants by their initials where necessary.

In this judgment I will briefly describe the works, the disputes, the decision of the expert and the background to this claim. I will then turn to the contract terms and the law. Next, I will set out each alleged manifest error and my decisions and, finally, the defendants’ alternative request for a conditional order.

Dandara intended to construct a housing development of 123 units on the Property. First the defendants had to put the Property, formerly a quarry, into a state fit for the commencement of construction. That included substantial earthworks, so the contract was subject to a condition precedent requiring earthworks to be certified as practically complete for the contract to become unconditional.

Dandara says the condition precedent relating to the earthworks was not met before the longstop date under the contract of 2 December of 2023, so they served notice terminating the contract on 3 December 2023. The defendants say the contract became unconditional upon what they say was a valid practical completion statement dated 12 November 2023 which was served upon Dandara on 6 December 2023, accompanied by a notice to complete. As Dandara failed to comply with the latter, the defendants served notice rescinding the contract.

Dandara relied upon two matters when submitting to the expert that the condition precedent was not fulfilled which, in essence, were:

Clause 28 of the contact concerns disputes. Subclause 1 provides:

“Any dispute or difference between the parties as to any matter under or in connection with this contract shall be submitted for the determination of an expert (‘the expert’) and the following provisions of this clause (28) shall apply to any submission and to any other matter required to be dealt with by the expert.”

Subclause 5 states:

“The expert’s determination is to be conclusive and binding on the parties save in the case of manifest error or omission.”

Subclause 8 states:

“The parties are to instruct the expert to issue the decision within 30 working days of his appointment.”

Considerable correspondence took place between the parties’ solicitors between December 2023 and March 2024. On 15 March 2024, Dandara issued a claim form and particulars of claim seeking return of their deposit under the contract of £867,500. The defendants disputed the jurisdiction of the court on the ground that the contract provides for mandatory expert determination and so applied for a stay. Dandara submitted in response:

Master Brightwell, on 10 September 2024, in a reserved judgment ([2024] EWHC 2318 (Ch)) rejected each of Dandara’s submissions and granted a stay.

The parties then, on 11 November 2024, jointly instructed Mr Anthony Edwards of 39 Essex Chambers as expert.

At paragraph 5 of his decision, Mr Edwards recorded:

“The parties agreed by consent on an order for directions. The directions were:

“(a)

initial written submissions, simultaneously exchanged, 25 November 2024;

“(b)

submissions in reply, simultaneously exchanged, 12 December 2024;

“(c)

opening notes, 15 January 2025;

“(d)

one-day hearing in London, 17 January 2025;

“(e)

agreed list of issues, 24 January 2025;

“(f)

closing submissions, 31 January 2025;

“(g)

expert’s decision, 14 February 2025.”

Then, at paragraph 6:

“Each party engaged their own experts and witnesses, including: (Claimant) Mr Timothy Howard, expert geologist of Leap Environmental Limited, Mr David Cotterell, expert valuer of Savills, London; (Respondents) Michael Reeve, expert geologist of SLR Consulting Limited, Mr Tim Mitford-Slade, expert valuer, Mr Toby Hill of Sheerness(?) Recycling.”

Then, at paragraph 7:

“The hearing was held on 17 January 2024, whereby the parties were given an equal opportunity to represent their cases. There was no examination-in-chief or cross-examination of the experts and/or witnesses. I, as expert, raised questions with the parties’ counsel, experts and witnesses.”

Mr Edwards listed certain of the authorities the parties relied on and set out parts of his decision, namely: (1) the parties; (2) the contract and key clauses; (3) expert’s appointment; (4) background; (5) pleadings; (6) issues; (7) expert’s findings; (8) expert’s decision.

At the conclusion of his decision dated 14 February 2025, in his findings at paragraph 202, he summarised his decision as follows:

“(a)

On a proper construction of the contract, condition precedent was the occurrence of the practical completion date which did not require and/or was not reliant upon the issuance of a practical completion statement.

“(b)

On a proper construction of the contract there is no definition of the inspection, nor does the contract impose an obligation upon the employer’s agent to inspect the earthworks. Clauses 7.14 and 7.15 were only activated if the employer’s agent intended to inspect the earthworks with a view of certifying the occurrence of the practical completion date. In the circumstances, there is no evidence that the employer’s agent intended to inspect the earthworks with a view to certifying the practical completion date. Accordingly, clauses 7.14 and 7.15 were complied with.

“(c)

The buyer and/or the buyer’s surveyors had and did take the opportunity to make representations to the employer’s agent in relation to the condition of the earthworks.

“(d)

The employer’s agent did take into consideration the buyers’ and/or the buyers’ surveyor’s representations regarding the condition of the earthworks prior to certifying the occurrence of the practical completion date.

“(e)

I find there is no implied term that no valid and binding practical completion statement can be issued without:

“(1)

the seller and the contractor having instructed the employer’s agent to give the buyer an inspection notice; and/or

“(2)

an inspection notice having been given; and/or

“(3)

an inspection having taken place on notice with a view to issuing a practical completion statement; and/or

“(4)

the seller having procured that the employer’s agent shall have due regard to any representations made by or on behalf of the buyer at that inspection.

“(f)

On a proper construction of the contract, the condition precedent was satisfied on 12 November 2023.

“(g)

The occurrence of the practical completion statement was 12 November 2023.

“(h)

The unconditional date was met and satisfied prior to the longstop date.

“(i)

A practical completion statement was validly issued on 12 November 2023, which stands as conclusive evidence that the earthworks condition was satisfied prior to the longstop date of 2 December 2023.

“(j)

The claimant was in breach of contract by failing to complete the sale of the property pursuant to clause 9 of the SCPC.

“(k)

The claimant was in repudiatory breach of the contract by attempting to terminate the contract on 3 December 2023.

“(l)

The seller, pursuant to clause 10(5) of the SCPC legitimately rescinded the contract on 8 March 2024.

“(m)

As a consequence of the claimant’s breach, the seller is entitled to damages.

“(n)

The appropriate time to measure the seller’s losses is November 2024.

“(o)

The seller is entitled to damages in the sum of £2,900,000.

“(p)

After taking into account the deposit of £867,500, together with interest of £23,480.81, the seller is entitled to compensation in the sum of £2,058,958.14.

“(q)

The claimant shall pay the seller the sum of £2,058,958.14 as damages for its breach of contract for failing to complete the sale and purchase of the property pursuant to clause 9 of the SCPC.

“(r)

The claimant shall pay the seller the sum of £2,058,958.14 within 28 days of the date of this decision.”

The total awarded to the claimants was therefore £2,926,458.14, to be paid by 14 March 2025. On 3 March 2025, Dandara sent a letter of claim to the defendants alleging Mr Edwards had made three manifest errors and required a reply by 7 March. The defendants responded on 5 March, stating the letter of claim did not comply with the appropriate pre-action protocol, that the claim had no prospects of success and that an application for summary judgment would be made if the claim was brought.

These Part 8 proceedings were then issued on 10 March 2025. In the claim form and in his witness statement in support the claimant’s solicitor, Mr Ross, said that Dandara’s claim for a declaration had been commenced by a Part 8 claim as it was unlikely to involve a substantial dispute of fact.

At paragraph 36, Mr Ross stated that Dandara considered the expert had made three manifest errors:

The relevant definitions from clause 1.1 of the contract are:

“‘Completion Date’: The date which is 10 working days from and excluding the unconditional date.

“‘Condition Precedent’: The satisfaction of: (1) the earthworks condition; and (2) the EA condition.

“‘EA Condition’”: The surrender of the EA permit in accordance with the requirements of the Environment Agency and providing sufficient evidence of same to the buyer.

“‘Earthworks’: The infilling and engineering works to create the development platform in accordance with the specification at Annex A to the earthworks levels.

“Earthworks Condition” means “(a) the occurrence of the practical completion date and …” There is a second but it is irrelevant to this claim.

“‘Longstop Date’: 2 December 2023.

“‘Practical Completion Date’: The date stated as such in the practical completion statement.

“‘Practical Completion Statement’: A written statement from the employer’s agent that practical completion of the earthworks has occurred.

“‘Unconditional Date’: The date on which the condition precedent is satisfied.”

Clause 7.14 provides:

“The seller and the contractor shall instruct the employer’s agent to give to the buyer not less than 10 working days an inspection notice of each of the dates upon which he intends to inspect the earthworks with a view to issuing the practical completion statement.”

Then clause 7.15:

“The buyer and the buyer’s surveyor shall be entitled to accompany the employer’s agent on each such inspection and the seller and the contractor shall instruct the employer’s agent to allow the buyer and the buyer’s surveyor to make representations at such inspection as to why, in the view of the buyer or the buyer’s surveyor, the practical completion certificate should not be issued and the buyer shall confirm the representations in writing to the seller within five working days of the inspection and the seller will procure that the employer’s agent shall have due regard to the same, but the issue or non-issue of the practical completion certificate will be in the sole professional discretion of the employer’s agent.”

Clause 7.17:

“Subject to the foregoing provisions of this clause having been observed by the seller, the practical completion statement will be conclusive evidence binding on the parties hereto, save in the case of manifest error of the practical completion statement, that the earthworks have been practically completed for the purpose of this contract.”

By clause 8, if the condition precedent had not been satisfied by the longstop date, Dandara could terminate the contract whereupon NPL was to return the deposit with interest. Clause 10.5 provided that if, as the defendants say occurred, Dandara failed to complete, MPL could terminate the contract and forfeit the deposit, resell the Property and claim damages. The contract also provided in the usual way for Dandara to monitor the progress of the earthworks for which purpose it could enter upon the Property, was entitled to notice of intended inspection (clause 7.14) and accompany SLR, the employer’s agent (clause 7.15) as both set out above.

I turn first to summary judgment. I have very much in mind Miss Scott’s, as she put it, “first preliminary point” in her opening, namely, on this application, she need only demonstrate that Dandara has a real prospect of persuading the final tribunal that a manifest error has occurred, referring me to the observation on manifest errors of Sir Kim Lewison in his book, The Interpretation of Contracts 5^th Edition, at Chapter 18, section 7, as set out in paragraph 12 by Peter Smith J in Walton Homes Ltd v Staffordshire County Council [2013] EWHC 2554 (Ch) [24]. She added that what may be manifest to one judge may not persuade another. That is the conclusion at paragraph 12 of Walton Homes.

Also in Walton Homes Peter Smith J in [24] continued “In Natoli v Walker, Kirby P said:

“Obviously, there is difficulty with the word ‘manifest’. What may be ‘manifest’ to one judicial officer may fail to persuade another. The criterion cannot be the swiftness of mind of the sharpest intellect. Nor can it be the perception of one whose whole career has been devoted to examining and reflecting upon building contracts. An objective, not a subjective, test for what is ‘manifest’ is contemplated. But the word will not go away. Against the background of its history in this context it requires swift and easy persuasion and rapid recognition of the suggested error”.”

So, Miss Scott submits, whilst she has extremely good prospects of success on the disposal hearing, all she must demonstrate now is a real prospect and that it cannot be said the judge on the disposal hearing will not be persuaded by Dandara’s arguments. Put another way, the test is a realistic as opposed to fanciful prospect of demonstrating manifest error at the disposal hearing. (See CPR 24.3 and the White Book notes at 24-3-2 and following.)

I now turn to manifest error. In Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd [2023] UKSC 2, the Supreme Court considered the usual likely meaning of “manifest error”. The claim concerned a lease which provided that a landlord’s certification of sums due from the tenant by share of costs of services was conclusive evidence of the sums due “in the absence of manifest or mathematical error or fraud”.

I gratefully adopt Miss Scott’s submission in her skeleton by way of summary of Lord Hamblen JSC’s judgment at paragraphs 30 to 34.

Mr Paul Mitchell KC, sitting as a Deputy High Court Judge, in WH Holding Ltd v E20 Stadium LLP [2025] EWHC 140 (Comm) considered “manifest error” in the context of a Part 8 disposal hearing wherein WH Holding contended it was not bound by a reasoned expert determination due to the manifest errors it contained. The sub-heading at the commencement of his judgment on the law was “The starting point: agreements are to be kept to”.

In paragraph 18, he states:

“Where two parties to a contract have agreed that an expert shall be tasked with determining a question of importance to them and that they will be bound by the determination, the starting point is that they will be held to their agreement as long as the expert has not departed from his instructions and absent fraud or bad faith: Jones & Ors v Sherwood Computer Services plc [1992] 1 WLR 277, CA.”

As to the position of the expert, he sets out how the expert acts as such and not as an arbitrator - see paragraph 14 and especially his citation from Cooke J’s decision in Bernhard Schulte GmbH & Co. v Nile Holdings Ltd [2004] EWHC 977 (Comm) at [95]:

“A person sitting in a judicial capacity decides matters on the basis of submissions and evidence put before him, whereas the expert, subject to the express provisions of his remit, is entitled to carry out his own investigations, form his own opinion and come to his own conclusion regardless of any submissions or evidence adduced by the parties themselves.”

The like position obtains here.

Mr Mitchell then considered the manifest error exception in expert dispute resolution clauses at his paragraphs 25 to 29. He referred extensively to the decision of Thomas J in Invensys plc v Automotive Sealing Systems Ltd  [2002] 1 All ER (Comm) 222, including, at paragraph 22:

“However it is important, as was said in Toepfer v Continental Grain, to stress that finality is an important factor; that it is not enough that the Expert has made a mistake; there must be a manifest or plain and obvious error. The effect of the word 'manifest' must not be diluted; the finality of the determination must not be subject to attack because another view could, in the light of further argument, properly be taken of the matters dealt with during the determination. It must be proved by the party disputing the determination that there was a manifest error in the determination”.

Mr Mitchell then set out those additional materials he has considered at his paragraph 28 and concludes as to that material in paragraph 29 by referring to the guidance in Sara & Hossein and Invensys and stating:

“… my consideration of these materials cannot amount to impermissible ‘extensive’ investigation: it is, rather, investigation of the type that the parties must be taken to have agreed could take place in the event that one of them challenged the outcome of a reasoned expert determination on the basis that it contained a manifest error. It is also relevant, in my judgment, that there was no possible remedy for an aggrieved party other than by challenging a determination on the ground of manifest error or fraud: a fairly thorough examination of the expert's determination is consistent with the fact that this would be the one and only chance of avoiding its consequences if they were indeed affected by error.”

At paragraph 30 Mr Mitchell states what the court’s task is and what it is not, i.e. the determination of an appeal. At paragraphs 80 to 88 he considered whether the errors of the expert were manifest errors and whether it had to be proven that the expert had committed a “blunder” or “howler”, concluding at paragraph 82 that those descriptions were subjective. Then he say, at paragraph 83:

“Accordingly, rather than express myself in terms which I consider unhelpful in the context of a challenge to a reasoned determination involving a question of contractual interpretation, in my judgment it is safer to focus on the Van der Merwe guidance read together the Veba guidance: to be ‘manifest’, errors must be so obvious and obviously capable of affecting the determination as to admit of no difference of opinion.”

In finding there were two manifest errors, at paragraph 85(ii), he concluded:

“In my judgment, the errors I have identified are such as are unlikely to admit any difference of opinion: the reasoning above involves applying the words of the Agreement and doing the mathematics, not exercising fine judgment in relation to a difficult argument regarding construction. In that respect, I reject a contention made in E20's written evidence for these proceedings that the Agreement was ‘poorly drafted and ambiguous’ and that the expert had reached a reasonable construction; in my judgment, the provisions of the Agreement which I have had to consider are admirably clear.”

Miss Scott submits WH Holding demonstrates two points which undermines Mr Twining’s submissions in his witness statement in reply to that of Mr Ross, in that it is entirely to be expected, first, that, arguments made by the parties will be substantially repeated before this court and, secondly, that each party would have considered the other party to have made arguable points before the expert.

Therefore, she submits, acceptance by the expert of one party’s arguments does not preclude the other from arguing to do so was a manifest error. I agree but, in accordance with the above authorities, to be manifest, errors must be “so obvious and obviously capable of affecting the determination to admit of no difference of opinion”.

Put another way, something more is to be expected which must flow from the expert’s decision, such as identifying the wrong building or applying the wrong formula. Further, her submission is especially broad as the expert has made his decision and rejected those arguments. Repetition, first, does not improve them and, secondly, amounts to a circular argument, both of which the expert determination process is designed to avoid, as agreed by the parties.

Mr Hale emphasised in Walton Homes that the circumstances in which an expert determination can be challenged are “slightly circumscribed” and that the “hurdle of opening the door in the case of manifest error is even more tightly circumscribed”, at paragraphs 7 and 8 respectively. Mr Hale submits this case is analogous to Walton Homes in that Dandara is attempting to relitigate the same highly contested arguments that the expert rejected. He submits that the existence of cogent competing arguments on both sides, so far as the three alleged manifest errors are concerned, is fatal to Dandara’s claim as determination of such points cannot be manifestly wrong simply because the expert landed on one side of the argument and not the other, citing Walton Homes at paragraph 46.

I now turn to my consideration of the alleged manifest errors, noting Miss Scott’s statement that Dandara is not challenging the expert’s decision that practical completion of the earthworks has taken place as a matter of fact.

At paragraph 117, opening his findings, the expert said:

“Fundamental to the construction of this clause is a proper and full understanding of what ‘practical completion date’ means against the contextual background of the earthworks when read against the contract as a whole, having regard to the audience it was aimed at.”

I find Mr Ross’s submission at paragraph 36 1 of his first witness statement that:

“Tellingly, when quoting the relevant terms of the contract at paragraph 155 of his determination, the expert did not refer to the definition of ‘practical completion date’. Had he done so, his error would have been apparent to him.”

difficult to understand in the light of the above paragraph and subsequent reasoning of the expert. The expert noted the parties’ agreement that the earthwork condition requires the “occurrence” of the practical completion date. (My emphasis). At paragraphs 122 to 124, the expert set out the position regarding practical completion, including the practical completion date. He then stated, at paragraph 125:

“There is no definition of practical completion and therefore the common law ordinary meaning shall apply. I agree with the respondents’ submission as to what constitutes practical completion. The ordinary common law meaning of ‘practical completion’ requires the work to have reached a state of readiness for use free from any known omission or defects which are not merely trivial.”

He then referred to various authorities on practical completion, his consideration of the arguments and the evidence before him as to alleged defects and then turned to determination of when practical completion took place. As to that, he stated, at paragraph 135:

“The contract does not expressly require any particular or standard form of certification to be used. The format of the practical completion statement was left to the certifier. Accordingly, the certifier cannot be criticised for formatting of the practical completion statement providing prima facie it can be understood from the instrument when the practical completion date occurred. I find that, objectively viewed, the practical completion statement adequately expresses the occurrence of the practical completion date.”

The certificate that is the subject of extensive submissions by the parties is from SLR, the employer’s agent. This is headed, “Commissioners Road Quarry Earthworks Completion Certificate”. Scheme Title: “Commissioners Road Quarry, Strood, Kent”. Certificate Title: “Practical Completion of Earthworks”:

“SLR Consulting Limited can confirm that the following documents relate to the verification of the monitoring and testing of engineering works undertaken by Medway Preservation and Development Limited at Commissioners Road, Strood, Kent. The Earthworks Verification Report Volume 1 2020, the like 2 December 2020, the like 3 January 2022 and the like 4 July 2022, Volume 5, June 2023 and, finally, Volume 5 (Addendum) Settlement Monitoring, October 2023”.

It is signed and then there is a signature, name: “Mike Reeve”; title “Technical Director”; date: “12 November 2023”, for and on behalf of SLR Consulting Limited. This, which I will call “the November Certificate”, the defendants submit is clearly the practical completion statement of the earthworks. At paragraph 137, the expert said:

“Given the extraordinary lengths each party was going to to get the gas levels recorded to an acceptable level for the EA to surrender the permit, it must have been clear to the parties that the occurrence of the practical completion date was looming large. I find that this contract was akin to the second mechanism referred to above in so far as the contractor and the employer’s agent were left to liaise with one another and the notional attendees would have understood the author’s words in such a manner. This is evidenced by the heavy involvement of the buyer’s representatives in the last three or four months, and not once did the buyer’s representatives say, ‘Hey, let’s not forget the employer’s agent’s site inspections for practical completion’. It might have been because they did not expect a site inspection by the employer’s agent? I will return to this in more detail below.

The expert then addresses clause 7 and its relevant subclauses, especially 14 to 18 inclusive. At paragraph 153, he states:

“It is against this contextual background that I agree with the respondents that, at the time of contracting, the buyer was not concerned with having a practical completion statement per se before practical completion was conclusive, but rather an assurance that the earthworks have been completed in accordance with the earthworks specification.”

The route of Dandara’s claim for manifest error is in paragraph 154 of the expert’s decision. I find the words adopted and used by the author saying that its intended audience which a notional addressee would have understood them to mean was that the issue of a practical completion statement was not part of the condition precedent. The condition precedent is expressly defined as including earthworks condition means the occurrence of the practical completion date.

I find that the notional addressees would have understood the author’s words to have meant that the earthworks condition is not the issue of the practical completion statement. If that were the intended result, the notional addressees would have expected the clause to say so. It is the actual occurrence of the practical completion date that matters and I find that, on an objective view, the notional addressees would have understood the author’s words to mean this. But even if I am wrong on this, nothing turns on it because the practical completion statement was issued on 12 November 2023, prior to the longstop date of 2 December 2023.

Dandara say this was obviously wrong for the reasons set out by Miss Scott at paragraph 27 as follows:

Mr Twining, solicitor for the defendants, summarises the expert’s approach at paragraph 31 of his witness statement. At paragraph 32, he says:

“In other words, the absence of a practical completion date would simply mean that there was no ‘conclusive’ evidence of a practical completion date. It did not mean that the practical completion date had not occurred in fact.”

The parties’ submissions to the expert upon issue 1 were extensive. I am grateful to Mr Hale, who has listed them at paragraph 25 of his skeleton argument. In their representations of 25 November 2024 at paragraph 29, Dandara summarised their position thus:

“The issue of a practical completion statement is a component of the condition precedent. Therefore, these preconditions for the giving of such a statement are themselves elements of the condition precedent. Therefore, strict compliance with those preconditions is required.”

That is, of course, what is now alleged in manifest error 1. The defendants maintain their arguments to the contrary in their written response of 12 December 2024 at paragraphs 8 to 16, concluding in the latter paragraph:

“In short, the fundamental essence of the condition precedent is the occurrence of practical completion itself, not the issue of the certificate.”

Dandara’s opening note of 15 January 2025 at paragraph 5 reiterated that certification of the practical completion date by the employer’s agent was a prerequisite for the condition precedent and, further, making satisfaction of the condition precedent turn on something arguable, such as completion of the earthworks, would make the contract unworkable. The defendants’ opening note of even date summarised their position concluding:

“Satisfaction of the earthworks condition does not depend upon the date upon which the practical completion statement was issued. It is the evidential means by which the practical completion date is conclusively evidenced.”

Both parties made like oral submissions on 17 January 2025. Mr Healey, then counsel for Dandara, submitted that:

“The parties have decided in this case they will replace the murky and disputable question of whether the practical completion has or has not been achieved by a given date with a manifest mechanism which is the production of a written document, a written statement that practical completion has occurred. Such a statement is produced and if it states a date and says that is the practical completion date then that tells you when the practical -- sorry, I beg your pardon -- when the condition precedent of this limb of the condition precedent is satisfied.”

And added “Well, that is the answer.”

Mr Hale, in his oral submissions, said Dandara used the definition of practical completion date:

“… in an attempt to elevate the issue of the practical completion statement to the status of the condition precedent and suggests whether or not the works were practically completed is irrelevant. In our submission, the condition precedent is the occurrence of the practical completion date itself”.

And a little later:

“So, in short, we submit this a typical conclusive evidence clause and I have relied on some authority in my written submissions as well, but we submit that the earthworks condition will be satisfied on the occurrence of the practical completion date, not the issue of a certificate. The distinction is fundamental to this case because, as I will explain in a bit more detail, it means that the practical completion statement can be issued after a longstop date to evidence the satisfaction of the earthworks condition at an earlier date and time.”

Dandara and the defendants then submitted written closing submissions on 31 January 2025. Dandara restated its position in its earlier written representations, its reply, its opening note and oral submissions. The defendants likewise restated their position, emphasising, contrary to Mr Healey’s submission that the defendants were contending for an elliptical construction, that they actually contended for a straightforward application of the express words used as, at the time of contracting, the parties concern was completion of the work in accordance with the earthworks specification.

The parties relied upon and put to the expert bundles consisting of almost 5,000 pages of documents in support of their submissions on this and the other issues. In my judgment, taking an objective view, each party raised substantive and properly arguable points of law and construction. Further, although my view is irrelevant, it appears that from what I have read the arguments were finely balanced.

The expert gave detailed reasons following the most extensive submissions in writing and orally, plus the evidence of witnesses and experts. All this was in a procedure agreed between the parties before an expert agreed upon by them who conducted the whole matter within a very short timescale, as required by the parties. Further, the parties specifically contracted for determination by an expert as opposed to an arbitrator or a judge.

In my judgment, the expert’s decision as to this issue, namely alleged manifest error number 1, comes nowhere near meeting the test set out by Simon Brown LJ in Veba at paragraph 33, namely:

“Oversights and blunders so obviously capable of affecting the determination to admit of no different of opinion.”

This alleged error is far from plain and obvious. Nor is it glaring. I bear in mind that I am not determining this question as if it was the Part 8 disposal hearing, but on the defendants’ application for summary judgment. As Miss Scott submits, and I agree, the hurdle that she must overcome is less than on the disposal hearing. However, I find Dandara fails on that test as I consider there is no arguable defence to the defendant’s claim that the expert did not fall into manifest error in respect of this issue.

Put another way, Dandara has no real prospect of succeeding on showing that the expert’s decision included manifest errors, it having no realistic prospect of success. I have to say Dandara’s arguments before me on manifest error are little different to those they made to the expert. Whilst it has to be possible that a manifest error could have arisen, I think that is unlikely without more, i.e. a glaring slip that stands off the page in the context of the detailed substantive arguments of the defendants as opposed to those of Dandara.

I have considered whether there could be further evidence available to the court at a disposal hearing. My view is that is most unlikely as: (1) this is a Part 8 claim and the evidence permitted in accordance with CPR 8 has been adduced by the parties and there should be no more to come; and (2) it is highly unlikely oral evidence would be permitted as it would be inappropriate and unnecessary as there is no dispute of fact; and (3) the arguments of the parties were exhaustively set out before the expert and me.

For the same reasons, I do not consider there is any other compelling reason why this matter should go forward to a disposal hearing. Two days after I heard this application, I emailed counsel in view of Miss Scott’s submission as to the difference between the tests or hurdles between summary judgment and Part 8 disposal. I asked what directions I should make if I refused the defendants’ application. I did this as a cross-check to ensure I was not, myself, falling into error as to what could possibly have emerged, as I set out at paragraph 61 above.

Counsel helpfully agreed directions last Tuesday, which are, in essence, listing the disposal hearing before a judge, with appropriate time estimates, provision for bundles, skeleton arguments and such like. There is no provision for further evidence nor cross-examination. That is as I expected and disposes of my concerns in that respect.

Mr Hale submits that if I find manifest error number 1 is not a manifest error then I need not determine the application in respect of the second and third manifest errors as they concern the expert’s decisions as to the validity of the practical completion statement, whereas the first concerned his finding that the issuance of a practical completion statement was not part of the condition precedent and therefore necessary to make the sale unconditional.

This is because even if they were manifest errors, they would not affect the expert’s primary conclusion. On that basis, Mr Hale submits that such errors would not be “capable of affecting the determination” (see Veba at paragraph 33). That submission, in my judgment, is correct. However, if I am wrong as to alleged manifest error number 1, I will briefly address the other two.

In the alternative, the expert determined, if he was wrong that no practical completion statement had to be issued before the practical completion date could occur, then the November Certificate (see [43] above) was a practical completion statement issued before the longstop date.

Dandara submit that this was in manifest error in view of: (1) the plain and simple meaning of its wording; (2) that it does not state practical completion of the earthworks had occurred; nor practical completion; nor the practical completion date; further nor do the reports list it in the November Certificate; and (3) a reasonable recipient would not consider it to evidence practical completion of the earthworks had occurred and/or the date of same necessary to establish the date from which time should run to ascertain the completion date.

As with manifest error 1, these arguments were put by Dandara to the expert, replied to by the defendants and rejected by the expert. Again, Mr Hale has set out the arguments of both parties as put to the expert, whose decision appears at his paragraph 135, which I have set out at paragraph 42 above.

In my judgment, the expert has not fallen into manifest error for the same reasons I set out at paragraphs 58 to 59, so I find there is no reasonable prospect of Dandara succeeding on its claim of manifest error in this respect; nor is there some other compelling reason why their claim should proceed to a disposal hearing as I have set out in paragraphs 60 to 63 above.

Dandara submits that this was the wrong conclusion, i.e. that SLR, as employer’s agent, was free to decide no earthworks inspection was necessary so MPDL, as seller, could ignore the clause 7 procedure for Dandara to inspect the earthworks and make representations before practical completion. Dandara submits clause 7, which gives it “important rights of natural justice” cannot just be ignored.

But it was not ignored. The expert received submissions from the parties and set out a detailed reasoned decision at paragraph 167 within which he finds the parties’ intention for a valid practical completion statement and says, at subparagraph (b):

“However, if the employer’s agent did not intend to make any inspection of the earthworks then this clause becomes superfluous and redundant.”

And, subsequently, at his paragraph 170:

“Clauses 7.14 and 7.15 were, on their proper construction, complied with.”

In my judgment, the expert has not fallen into manifest error for the same reasons I set out at my paragraphs 58 to 59 above, so I find there is no reasonable prospect of Dandara succeeding on its claim of manifest error; nor is there some other compelling reason why this claim should proceed to a disposal hearing as in 60 to 63 above.

In view of my above findings, I need not consider this.

For there to be a manifest error, it must spring off the page. As Peter Smith J put it in Walton at paragraph 46, there is a very limited window of opportunity to challenge, and here there is nothing “manifestly wrong” in the expert’s decision based on substantive competing meritorious arguments by the parties. Nothing has gone wrong. The expert made no “off the wall” findings; nor did he mislead himself.

Finality must not be diluted. The parties expressly agreed and contracted for this procedure with an agreed expert and procedure and for that finality with no appeal route. There are here no obvious errors capable of affecting the determination so there will be judgment for the defendants.

I would make one final point as to finality. I urge the parties to consider whether, in the context of Part 8 claims of this nature, it would be best practice and accord with the overriding objective to move directly to a disposal hearing as opposed to summary judgment. That should take only a little more time, and thereby expense, as there will be no further evidence, but would assist with achieving finality. I make no criticism of the defendants in saying this. I understand their frustration with the overall process.

I will now hear counsel as to the form of order and costs.