Douglas Homes Housing v Dykes: Expert determination, repudiatory breach and fiduciary duties

In Douglas Homes Housing Incorporated v Alan Martin Dykes & Ors [2026] EWHC 3 (Ch), HHJ Russen KC addressed competing summary judgement applications in a multi-party dispute concerning valuable development sites in Bristol. The case raises important questions about the scope of expert determination clauses, the finality of expert decisions, and the boundaries of fiduciary relationships in property development ventures.

The proceedings centred on three principal issues: beneficial ownership of Douglas Homes Housing Incorporated (DHHI), allegations of repudiatory breach of a development agreement, and claims for an account against Wayne Braund for alleged breaches of fiduciary duty.

DHHI sought summary judgement against Alan Dykes for damages exceeding £29 million, arguing his repudiation of their development agreement was established by an expert's determination that Dykes had wrongfully terminated the contract. The expert, appointed under clause 7.1 of the agreement, had found Dykes was not entitled to serve his termination notice.

The court examined whether Dykes was precluded from challenging the expert's findings, either through waiver or estoppel, and whether those findings were immune from challenge despite being designated "final and binding" under the contract. Dykes contended the expert lacked jurisdiction over certain matters and had erred in law.

HHJ Russen KC refused summary judgement, finding the jurisdictional and legal error challenges sufficiently arguable for trial. The court noted that clause 7.1 confined the expert's jurisdiction to disputes about contractual interpretation, not questions of whether a party had validly exercised contractual rights. Dykes had submitted to the expert's jurisdiction but this did not necessarily preclude later challenge, particularly given the Supreme Court's observations in MWB Business Exchange Centres v Rock Advertising regarding entire agreement clauses.

Significantly, the court held that the "final and binding" language did not prevent review on points of law. Drawing on obiter dicta in Barclays Bank v Nylon Capital, the judge concluded that expert determinations involving contractual interpretation could be challenged where the expert had arguably exceeded the mandate conferred by the parties. The expert's findings on insurance obligations and fundamental breach involved questions of law susceptible to judicial review.

Regarding the account claim, the court rejected Braund's application to strike out allegations that he owed fiduciary duties to Dykes and the Arcade Companies. The pleaded case alleged Braund had complete access to Dykes's accounts and directed payments totalling over £18 million. Whether this established a fiduciary relationship, and the impact of limitation defences, required factual investigation at trial.

The court also declined to order a preliminary trial of the beneficial ownership dispute over DHHI shares, despite Dykes's argument that success would enable him to discontinue DHHI's claim. The risk of inefficiency was too great, particularly if Dykes lost on this issue, requiring a subsequent trial on other matters regardless.

The judgement emphasises the importance of clear drafting in expert determination clauses and the courts' residual supervisory jurisdiction over expert decisions. It confirms that parties cannot, through agreement alone, entirely oust judicial review where experts make legally flawed decisions on matters going to their authority. The case proceeds to trial on all liability issues, highlighting the limits of summary disposal in complex commercial disputes involving disputed facts and mixed questions of law.

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