Originally published in TEDR Volume 13 Issue 2 (publication date not recorded).
[2008] EWCA Civ 1 TEDR Volume 13 Issue 2
This appeal concerned whether a certificate issued by an expert for a determination pursuant to a lease was valid and therefore binding. The lease was of commercial premises part of which involved an area where extraction of minerals can and did take place. The lease provided for early termination upon written notice by the tenant with a cessation of liability to pay rent 12 months thereafter. The lease specifically made provision for an expert to determine the validity of the notice. The Court of Appeal considered that the surveyor was given exclusive power to determine the questions to which his certificate was directed. As part of his consideration he was bound to consider “minerals” on the site. As a matter of fact, the surveyor took into account only the minerals and not the reserved minerals on the site. The issue as to the determination was whether he should have taken into account both or not.
On the facts the Trial Judge and the Court of Appeal determined that the surveyor ought to have taken both into consideration.
What effect did this finding have upon the validity of the decision and the binding nature of that decision?
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