WH Holding Ltd v London Stadium LLP (Formerly E20 Stadium LLP)
[2026] EWCA Civ 153
At first instance, the High Court set aside an expert determination on the grounds that there had been a manifest error. As a result, it was not final or binding. E20 appealed.
Under a Concession Agreement dated 22 March 2013, E20 had granted WH rights to use the London Olympic Stadium during the football season as a home ground for West Ham United. Clause 20 of the Concession Agreement comprised an “anti-embarrassment” provision whereby E20 was entitled to share in any gains made by the shareholders of WH in connection with a sale or transfer of interests in West Ham United. Clause 50 of the Concession Agreement provided that any dispute relating to the calculation of the gain was to be referred to an expert whose decision was to be final and binding in the absence of manifest error.
E20 said that the judge had been wrong to find that the expert’s determination contained manifest errors, asserting that the expert’s conclusions were at a minimum not so obviously wrong as to admit of no difference of opinion. WH said that the original decision should be upheld on the additional ground that it was in accordance with commercial common sense.
Phillips LJ explained that where parties have simply agreed to be bound by an expert’s determination, they cannot challenge the outcome, provided that the expert has not departed from his instructions in any material respect (and absent fraud), even if the expert makes a mistake in reaching it. This is why parties who wish to contract on the basis that they will not be held to mistakes made by the expert in the course of carrying out his instructions include an exception for a determination affected by “manifest error”. In Veba Oil Supply & Trading GmbH v Petrotrade Inc [2001] EWCA Civ 1832, Simon Brown LJ said that manifest errors were “oversights and blunders so obvious and obviously capable of affecting the determination as to admit of no difference of opinion”.
Phillips LJ said that: “Absent contractual terms which provide differently when interpreted in context, an error will be manifest if, after investigation limited in time and extent, it is so obvious (and obviously capable of affecting the determination) as to admit of no difference of opinion”.
E20 said that it was wrong for a judge first to consider whether the expert made a mistake, and then to consider whether the mistake was manifest. The task of the court was not to decide whether the expert was right or wrong, but only whether they had made a mistake that “leaps out at you”. Phillips LJ disagreed. The test applicable for manifest error invites a two-stage approach, namely, (i) whether there was “an oversight or blunder” and (ii) whether that error was so obvious as to admit of no difference of opinion.
Parties do not instruct the expert they appoint to interpret and apply the contractual formula correctly (the issue here); rather, they instruct the expert to determine the dispute between them in that regard and to do so without making a manifest error. The general test for whether an expert has made a manifest error is fully applicable to a decision as to the interpretation of a contract: it is necessary to show not only that the expert has reached the wrong interpretation, but that his interpretation is so obviously wrong that it will admit of no difference of opinion.
As to the meaning of “obviously wrong”, the CA referred to the comments of Arden LJ in HMV UK v Propinvest Friar Ltd Partnership [2011] EWCA Civ 1708, who himself referred to the analysis of Akenhead J in Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd (See Dispatch, Issue 94 [1]), stating: “He uses the memorable phrase ‘a major intellectual aberration’ … which I have found a useful way of bringing to mind that the error on which we are concerned, if there be an error, must be an obvious one”.
What about the expert determination here? Phillips LJ held that the approach taken by the expert was based on an arguable finding. That was a different starting point from that which WH and the judge at first instance agreed with, but was not so obviously wrong as to admit of no difference of opinion. The rest of the analysis followed from that starting conclusion in a manner which also could not be said to be obviously wrong, with the result that the determination was not manifestly in error.
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