1. Definitions

1.1 “Agreement” is an agreement to provide services incorporating these terms of engagement, any engagement letter and the Instructions.

1.2 “Expert” is the person who is engaged to assess, gather and prepare evidence that may be given in a potential or existing legal action

1.3 “Fees” are the payments due for services inclusive of any taxes and as set out in an invoice submitted to the Instructing Party by the Expert.

1.4 “Disbursements” are payments made by the Expert to a third party in connection with complying with the Instructions issued and which are included in invoices to be reimbursed by the Instructing Party.

1.5 “Instructions” are the instructions communicated to the Expert by the Instructing Party and includes, in addition to the Instructing Party’s initial requirements, any further services that the Expert may be required to deliver under an order, direction or rule of the Court.

1.6 “Court” means any judicial forum before which the dispute may be placed including mediation.

1.7 “Client” is taken to include the plural and is generally the party to the dispute which is or may be part of a legal action and for whom the Expert will be carrying out the Instructions under this engagement. Where it is a direct instruction, the Client will also be the Instructing Party. In the case of a Court appointed expert, the Client will be the presiding judge or equivalent.

1.8 “Instructing Party” includes the plural and is the person, firm, company or other organisation that issues instructions to the Expert and in the case of a direct instruction may also be the Client. The instructing party may be the Court in the case of a Court appointed expert.

2. Responsibilities of the Expert – scope of work

The Expert shall:

2.1 Act objectively and independently and maintain confidentiality and only undertake Instructions appropriate to the Expert’s knowledge and experience. Where the Expert considers that the Instructions or any part of them fall outside her expertise, she shall notify the Instructing Party without delay.

2.2 Not enter into negotiations with an opposing party, advisor or expert and shall comply with Clause 2.6 in relation to any meetings with other experts.

2.3 Comply with the directions of the Court and the relevant procedural rules, codes of practice and other guidelines relating to the Court which will deal with the proceedings in performing the Instructions, writing any report and giving evidence.

2.4 Be available to attend planned meetings and hearings subject to receipt of adequate written notice agreed with the Expert in accordance with Clause 2.5.5.

2.5 Inform the Instructing Party without delay of any change in his/her opinions on any material matter and the reasons for this.

2.6 Attend meetings of experts as might be instructed and comply with such Instructions and the relevant Court rules during and after said meeting.

2.7 Be entitled to assume that the documents and other evidence provided is both complete and accurate, unless the Instructing Party advises otherwise in writing. Where the Expert identifies an omission in the materials supplied, she shall notify the Instructing Party promptly.

3. Obligations for Instructing Party/Parties

The Instructing Party shall:

3.1 Issue written instructions to the Expert setting out the issues to be addressed and the questions to be answered. The instructions shall be clear on the timetable to be met by the Expert and provide any cost constraints. If the timetable changes, then all such changes must immediately be advised to the Expert.

3.2 Where requests for additional information or Instructions are made by the Expert, the Instructing Party shall respond promptly and amend in writing the Instructions as appropriate.

3.3 Keep the Expert informed about any applicable deadlines and send them copies of all Court orders and directions that may affect the performance of the services or any other relevant matters concerning the Instructions throughout the term of the engagement.

3.4 Notify the Expert promptly in writing of any alteration or addition to information provided to the Expert and advise whether any additional documentation provided is an updated version of an existing document or a new document, and whether such documents have been filed or served.

3.5 Ensure that documents provided to the Expert are not redacted or altered in any way, nor interfere in any way with the Expert’s duty to the Court.

3.6 Establish the availability of the Expert in advance of agreeing dates and times when the Expert may be required to be present.

 3.7 Advise the Expert if any prior expert has been appointed and the current status of that appointment, and in particular whether any expert has resigned or been dismissed from the case.

3.8 Ensure that the Fees charged by the expert are paid in full, notwithstanding any challenge as to costs incurred in the conduct of the case.

3.9 Inform the Expert promptly where a case is concluded whether by settlement or trial.

4. Disbursements and invoicing

4.1 If (a) the Instructing Party’s Instructions or the Court’s requirements are significantly amended after the date of appointment or (b) the volume of documents and other evidence the Expert will be required to review is significantly amended after this date, the Expert’s estimate may require revision. All reasonable expenses incurred by the Expert will be charged at cost. Copies of receipts will be provided if requested. VAT will be added as appropriate.

5.3 Rates:

5.3.1 A hourly/daily rate of £***.00 will apply for preparation and writing of reports and answers pursuant to Court rules, orders or practice directions. This applies to activities outside the scope of the original Instructions and will apply when attending Court. Payment is required even if the Expert is not required to give Oral evidence.

5.3.2 Where the Client or Instructing Party advises the Expert that it needs a service or papers prepared by a specific time, the Expert will use reasonable endeavours to accommodate this.

5.4 Payment Terms

5.4.1 The Expert’s invoice will be presented, addressed to the instructing party (usually the Legal representative), following the completion of the expert’s report. However, if there is a delay in the provision of information that is required to complete the report which exceeds 30 days, and the delay is not caused by the Expert, the Expert reserves the right to render interim invoices.

5.4.2 Invoices are all payable on strict payment terms and shall be paid in full, irrespective of the outcome of the matter or any subsequent taxation or assessment of costs by the Court. If any Fees are disallowed on assessment, the party to whom the invoice is addressed will remain obliged to pay the Fees invoiced.

5.4.3 If the Instructions are terminated prior to completion for any reason the Expert will submit an invoice on based on time charges incurred to the date of notification of termination.

5.4.4 For accounts not settled within the agreed period interest will be charged at the rate of 4% above base rate per month, or part of a month, until full settlement is received pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002. When an invoice is overdue, the Expert reserves the right to suspend work until the invoice is paid.

5.4.5 Any Instructions made on a conditional or contingent basis will not be accepted.

6. Commencement

 6.1 The Agreement shall take effect immediately upon confirmation from the instructing party on behalf of their client.

7. CPR obligations. Governing Law and Jurisdiction – CPR 35 and equivalent in other legal jurisdictions.

7.1 The Agreement and all matters relating to it (including non-contractual disputes and claims) shall be subject to the laws and jurisdiction of England and Wales.

7.2 These terms of engagement and the Instructions together with any engagement letter constitute the entire agreement between the parties and will supersede any previous agreement in relation to this case. Any instructions, evidence or material supplied by the Instructing Party, or the Client will imply agreement to these terms of engagement.

7.3 These terms of engagement constitute a binding agreement between the Expert], the Instructing Party and the Client. 

7.4 The Instructing Party and the Client hereby confirm that they understand and accept the nature of the Expert’s overriding duty to the Court under CPR Part 35.

8. Instructions

8.1 In addition to providing the Expert with all relevant directions and Court orders under Clause 3.3, the Instructing Party will provide the Expert with comprehensive Instructions in writing. Such Instructions will include information on whether the matter requires preaction advice and/or whether litigation is likely. Such Instructions will also include all timetabling information including track allocation. The Instructing Party will notify the Expert of any changes to the Instructions and timetable promptly.

8.2 The Expert will be entitled to rely on the completeness and accuracy of all materials supplied by the Client or Instructing Party.

8.3 The Expert will use her experience, care and skill in fulfilling the Instructing Party’s Instructions to the best of her ability. Where the Instructing Party is dissatisfied with services provided, it shall advise the Expert in writing.

9. Disputes and resolution

9.1 The Instructing Party will advise the Expert of any matter in dispute as soon as practicable and in the case of any payment dispute within 7 days of the receipt of the invoice. Any part of the invoice not disputed shall be paid under the normal terms and the residue dealt with under Clause 9.2.

9.2 Disputes shall set down in writing and if not resolved by negotiation shall be referred to the mediation scheme of the Expert Witness Institute.

9.4 In cases of fees not being paid by their due date, the expert may take to secure their payment.

10. Confidentiality

10.1 The Expert confirms where confidential information is provided that at all times this information will be kept confidential, except for appropriate disclosures to professional advisers and except as required by law or as provided for in regulatory, ethical or other professional requirements applicable to the Expert. Confidential information will also be disclosed to the extent necessary to set out the substance of the Instructions in any report. This restriction shall not apply to any information which comes is into or is in the public domain otherwise than by breach of the Agreement; or to comply with the Data Protection Act 1998, Proceeds of Crime Act 2002 and other similar legislation or regulations.

10.2 By entering into the Agreement the Client agrees that it will be sufficient compliance with the Expert’s duty of confidentiality that the Expert takes such steps in good faith to preserve confidential information as it considers fit both during and after termination of this engagement.

11. Intellectual property

11.1 The intellectual property rights, including copyright, in all original work, reports and other materials created by the Expert in the course of the engagement will remain vested in the Expert [or the Employer as applicable] unless otherwise agreed in writing. The Expert asserts all her moral rights. Unless otherwise permitted by the Expert, reports produced in the provision of Expert witness services may be used to support a legal action only after settlement of all rendered invoices. Upon payment the Expert will grant to the Client a non-exclusive licence to use all the materials covered by the settled invoices for the purpose of conducting the matter in relation to which this appointment has been made. The licence will extend to no other purpose and the materials cannot be used for any other matter unless agreed in writing or ordered by the Court.

12. Indemnity

12.1 The Expert does not accept any liability or responsibility to any third party resulting from a breach of the above obligations by the Instructing Party. The Instructing Party shall indemnify and keep the Expert indemnified in respect of any claim against it by a third party and any costs and expenses incurred in defending it if the Expert is subject to a claim from a third party arising from the Instructing Party’s non-compliance with these terms of engagement (other than as a result of the Expert’s own negligence or default

12.2 The services provided by the Expert pursuant to these terms of engagement are not intended, either expressly or by implication, to confer any benefit on any third party other than the Client and the liability of the Expert to any other third party is expressly excluded.

12.3 By engaging the Expert the Instructing Party agrees that any claim of any sort whatsoever arising out of or in connection with this engagement shall be brought only against the Expert and that no claims in respect of this engagement will be brought personally against any persons involved in performance of this engagement, whether actual or deemed servants or agents of the Expert or not, and the Instructing Party agrees not to bring any proceedings of any sort whatsoever arising out of or in connection with this engagement in any jurisdiction against any partner or member of staff and each partner or member of staff shall have the right to enforce this provision under the Contracts (Rights of Third Parties) Act 1999.

12.4 Subject to these terms of engagement, neither party shall be liable in any way for failure to perform, or delay in performing its respective obligations under this engagement if the failure or delay is due to causes outside the reasonable control of the party which has failed to perform. 

13. Conflicts of Interest

13.1 During the Agreement, the Expert reserves the right to act for other clients whose interests are or may be adverse to the Client’s. The Expert will notify the Instructing Party immediately should he/she become aware of any conflict of interest affecting the Client, however we rely on the Instructing Party to keep us updated as to other parties involved in the matter or whose interests are adverse to the Client’s. The Expert is not currently aware of any matters (beyond those that the Client has already been informed about) which, in his/her opinion, give rise to any conflicts of interest in relation to the Instructions based on the parties notified to him/her to date.

14. Dissatisfaction

14.1 If at any time the Instructing Party would like to discuss how the service could be improved, or if there is dissatisfaction with the service being provided, please inform the Expert. The Expert undertakes to look into any complaint carefully and promptly and fully explain the position. If this does not resolve matters, please see the provisions of Clause 9.2.

15. Termination

15.1 The Expert will not withdraw without good cause from the appointment as Expert. However, the Expert reserves the right to terminate the Agreement and withdraw from the appointment upon giving written notice to the Instructing Party, without prejudice to any accrued rights under the Agreement, and to demand immediate payment for all work undertaken whether invoiced or not, if:

15.1.1 the Client or the Instructing Party is dissolved or becomes insolvent;

15.1.2 the Client or the Instructing Party makes a general assignment, arrangement or composition with its creditors;

15.1.3 the Client or the Instructing Party provides Instructions which are incompatible with the Expert’s duties as an Expert;

15.1.4 the Client or the Instructing Party makes a request for an item to be included in or excluded from any report or tries to exert influence on the content of a report;

15.1.5 the Client or the Instructing Party provides the Expert with information which is false or misleading and which may compromise the Expert’s duty to the Court (where the false or misleading information is disseminated from anyone representing or being represented by the Client or Instructing Party);

15.1.6 the Expert becomes aware that there is no claim or no case to answer.

15.1.7 the Expert has received no instructions or request for work to be completed for a period over 9 months;

15.1.8 the Client does not approve any reasonable disbursement for the Expert to complete their work;

15.1.9 judgement is achieved at first instance and one party of the other seeks to take the decision to appeal the expert has the option of terminating the instruction;

15.1.10 after a period of 6 years form the initial instruction or where the statute of limitations would apply to the matter in hand; or

15.1.11 for any other substantial and significant reason.

15.2 Prior to terminating the Agreement the Expert will discuss the position in advance with the Instructing Party and consider whether it is appropriate to make a written request for directions from the Court. Where the Expert determines that termination is required, it may do so on 7 days’ notice to the Client.

15.3 If the Instructing Party wishes to terminate this arrangement it must give the Expert notice in writing and settle all invoices and Fees incurred up to that time. Notice of termination will be effective immediately.

15.4 The rights and remedies set forth in the Agreement are not exclusive and are in addition to all other rights and remedies provided by law.

16. Rights of Transfer

16.1 Neither the Expert nor the Instructing Party may transfer its rights or obligations under the Agreement to any other party without the prior written consent of the other party.

17. Quality control

17.1 In order to comply with external regulations and internal quality control procedures the Expert’s files are subject to independent review. This will be done by an independent qualified reviewer who will be subject to a confidentiality agreement. The Instructing Party and the Client acknowledge that files will be disclosed to the reviewer for these purposes. [Note: depending on the Expert’s audit/quality arrangements this may not be required however it is advisable to retain the ability to disclose files if there is a possibility that it will be required]

18. Severance of Terms

18.1 In the event that any provision in these terms of engagement is held to be invalid, the remainder of the terms will continue in full force and effect.

19. Third Parties

19.1 Save as expressly stated, no person who is not a party to the Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Agreement or to consent to any amendment to the terms of the Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from pursuant to that Act.

20.Time Bar

Any claims against the Export by the Client shall be deemed to be waived and absolutely time batted upon the expiry of one year from the submission date of the final invoice to Client.

C.Bacon  January 2024