The Forgotten Clauses
Published 31 July 2014
When drafting or reviewing an agreement, it is important to pay close attention to what you may regard as standard clauses, otherwise known as 'boiler plate clauses'.
The recent case of MP Kemp v Bullen Developments has been a useful reminder of the importance of boiler plate clauses. In this case it was the interpretation of a dispute clause under discussion.
The court held than an expert determination provision that provided for an expert being appointed to settle 'any dispute' meant exactly that. Therefore, the expert's jurisdiction was not limited to a particular type of dispute, and would even include points of law and could effectively exclude the ability to seek any remedies in the Courts.
There are a wide variety of dispute clauses used and you should try to avoid generalised dispute clauses. Ideally, you should expressly exclude matters of law whilst limiting and defining disputes which will be determined by an expert.