As the 2024/25 Premier League season concludes on 25 May 2025, some West Ham United fans may be disappointed with the football club’s performance. However, its holding company WH Holding Limited (“WHHL”) will likely be more pleased with its result in the Commercial Court earlier this year.

In WH Holding Ltd v E20 Stadium LLP (“E20”)[1], E20 claimed its entitlement to a £3.6 million profit share from an agreement it had entered into with WHHL and West Ham United Football Club (“West Ham UFC”).

Expert Determination

Expert Determination is a form of Alternate Dispute Resolution (“ADR”) which involves all parties to a dispute jointly instructing an expert in a particular field of expertise. The method of ADR is commonly used in disputes of a technical nature.

The independent expert will make a decision on an issue in the case which binds all parties (unless agreed otherwise). As was the case for WHHL and E20, some contracts include a provision that should a dispute arise, they must utilise Expert Determination to settle the proceedings. This negates the need to take matters before the court and can save the parties both time and money.

Background

In 2013, E20 granted WHHL a 99-year concession to run sporting events at London Stadium (also known as the Olympic Stadium), as well as permitting it to utilise the stadium as the London club’s home stadium (“the 2013 Agreement”). Along with the Expert Determination provision, the agreement included a clause whereby WHHL would have to pay a premium to E20 if any of West Ham UFC’s relevant shareholders made a gain by selling or transferring any of their interest in the club.

In 2021, four transactions were entered into by relevant shareholders with third parties. WHHL claimed that they were separate and not to be considered a single transaction, which could have engaged the provision for the payment of a premium to E20.

Complying with the agreement, both parties instructed an expert to resolve the issue and entered into an “Expert Agreement”. As is common, the Expert Agreement stipulated that the parties would be bound by any decision reached by the expert and were not permitted to challenge the decision. However, a carve-out provision, similar to that contained in 2013 Agreement, permitted the parties to challenge the decision where it arose as a result of manifest error.

The expert found in favour of E20 which required WHHL to pay £3.6m plus costs. Disagreeing with the experts decision, WHHL applied to the High Court for a declaration that it was not bound by the decision of the expert on the grounds that a manifest error had been made.

It is sometimes difficult to identify what would be determined as a “manifest” error. This does not simply mean that there was negligence on the part of the expert, and errors can arise without the expert being negligent. The Court highlighted the same, with the judge indicating that what needs to be focused on is whether the error was “manifest”.

Fundamentally, the Court agreed that there were errors in the expert’s reasoning and with his interpretation of defined terms in the 2013 Agreement. Such error was considered to be “obvious” which met the 2008 case law definition of manifest error as being “obvious or easily demonstrable without extensive investigation”[2]. The Court held that, had the correct interpretation been given to the defined terms in the 2013 Agreement, the expert’s decision would have been completely different.

E20 has been ordered to repay the £3.6m to WHHL.

[1] [202] EXHC 140 (Comm)

[2] IIG Capital LLC v Van Der Merwe [2008] 1 All ER (comm 435 [52]