Public body wins Court of Appeal dispute over expert determination concerning London Stadium

That conclusion was reached by the Court of Appeal in a case between London Stadium - formerly known as E20 - the public body that owns the facility, and WH Holding (WHH), which owns West Ham and has a 99-year concession on the stadium.

In February 2025 the High Court made an order declaring that an expert determination by Terence Mowschenson KC was affected by manifest error as alleged by WHH and so not final or binding on either party.

Mr Mowschenson had determined that the ‘stadium premium amount' payable by WHH to E20 under a 2013 concession agreement was £6,132,541.65, so £3,600,000 more than the £2,532,541.65 that WHH contended was due and had already been paid.

The High Court concluded Mr Mowschenson’s determination was the result of two obvious errors that would admit of no difference of opinion.

Appeal judges heard the agreement between the parties contains an ‘overage' provision, to ensure E20 could "share in the spoils" of any qualifying share disposition by a relevant shareholder.

Some WHH shareholders sold part of their holding in a share purchase and call option arrangement.

Both sides agreed that the sale of these 187 shares by relevant shareholders would give rise to a stadium premium amount of £2,532,541.65.

Philips LJ said: ”The dispute is whether, as E20 contends, the £18m call option premium is to be included in the calculation, producing a larger stadium premium amount (which E20 asserts is an additional £3.6 million), or whether that premium is to be assessed separately, in which case it does not meet the threshold for any further stadium premium amount to be paid.”

E20 argued the High Court was wrong to find Mr Mowschenson’s determination contained manifest errors, and that his conclusions were at a minimum not so obviously wrong as to admit of no difference of opinion.

WHH said the High Court’s decision should be upheld and was in accordance with commercial common sense as the formula in the agreement is effectively based on price per share, providing that overage is due when the price is £38,358.35 per share or greater, and increasing as the price rises above that amount.

It argued that as the call option was at a price per share less than half that amount, there was nothing commercially nonsensical about a result where no overage is payable for the option.

Phillips LJ said: “The approach taken by the expert was based on an arguable finding that there was one qualifying transaction.

“That was a different starting point from that which WHH and the [High Court] judge would prefer, but not so obviously wrong as to admit of no difference of opinion.

“The rest of his analysis follows from that conclusion in a manner which also cannot be said to be obviously wrong, producing a determination which was not, in my judgment, manifestly in error.”

Lady Justice Falk and Lord Justice Zacaroli both agreed.

Mark Smulian