Farm Business Tenancies: A Dispute About Disputes

It may seem odd to start an article concerning farm business tenancies and dispute resolution with a reference to the Agricultural Holdings Act 1986. Nevertheless, practitioners will be aware that the Deregulation Act 2015 introduced third party determination (usually referred to as expert determination) as an alternative to arbitration in respect of a number of disputes which arise under the 1986 Act. The latest round of proposals from TRIG (the subject of the Winter special edition of Agricultural Lore) seek to encourage a further extension of expert determination.

Part of the reason for this is no doubt the fact that, in some quarters, arbitrations are not in vogue, being seen as very expensive, etc. It remains to be seen whether the RICS initiative to introduce a simplified arbitration scheme (perhaps particularly relevant in the context of rent review) gains traction.

It was noteworthy that, in Wales, the Agricultural Land Tribunal has also been interested in extending its jurisdiction at the expense of arbitrators and indeed those making third party/expert determinations.

Whatever the politics of who is best to determine a dispute in relation to agricultural property, aside from the extension of third party determination into the 1986 Act, it is of course common place to see a reference to expert determination, often alongside arbitration, in farm business tenancies. As one increasingly weighs farm business tenancy agreements, rather than reads them, because they have become so voluminous, the opportunity to have detailed provisions applying to the contract for expert determination becomes almost automatic.

If expert determination is being offered, whether in a farm business tenancy or otherwise, then it does need a very clear contract. It needs to be beyond doubt that it is an expert determination and not an arbitration provision.

The role of an expert

The role of an expert is to decide in relation to an issue in dispute between parties. That is in contrast to the role of an arbitrator who determines the outcome of the dispute based upon the arguments put to him (or her, although at present there is only one female arbitrator on the RICS Panel).

It needs to be borne in mind that the expert's role is not to perform a judicial function. The expert has a duty to investigate, reaching a decision by his own inquiries and expertise. The expert can reach a decision without receiving any evidence or argument from the parties.

Moreover, where...