The recent decision in the High Court of Re Delilah Cosmetics, White v Nicholson (https://www.bailii.org/ew/cases/EWHC/Ch/2022/1104.html) (and expertly summarised by FromCounsel) reminds us once again that:

(1) you should take care when drafting to build in the key provisions that may be relevant to parties from the outset (in this case there was no mechanism for valuing shares);

(2) if you don't draft for it initially, make sure you think the amending provisions through properly; and

(3) the test for "manifest error" remains a relatively high hurdle and an outcome that is reached that is not liked by a party, or disputed as to the approach will not be enough to constitute manifest error.

This case should be a reminder of the standard and test for "manifest error" is such that a disagreement as to approach will not be sufficient and this often used phrase "save for the case of manifest error" while perhaps not at the level of a boilerplate clause, it should not be glossed over or drafted in to an agreement without thought and awareness as to what it actually means. While someone can be arguably wrong they may not have made a manifest error and their findings will stand. As the judge in this case says: the test of manifest error is two-staged and exacting.

So if you think there may be a dispute as to a process and differing views you might perhaps be better off ensuring there is a detailed process for making representations as to your own view for an outcome and perhaps have a mechanism for any disputes to be considered. Otherwise, the expert will almost certainly be right in the eyes of the law.