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Expert Witness
1. Recital of Appointment
The appointer instructs the expert to render advice and services in accordance with these Terms of Engagement.
2. Definitions
(a) ‘Appointer’ means the solicitor instructing the Expert.
(b) ‘Expert’ means the person appointed to provide advice and services, including the giving of expert evidence.
(c) ‘Client’ means the person(s), firm, company or public body on whose behalf the Expert is being instructed.
(d) ‘Assignment’ means the matter(s) referred to the Expert for advice to which these Terms of Engagement apply.
(e) ‘Fees’ mean (in the absence of written agreement to the contrary) the reasonable charges of the Expert based on normal rates for work of the type instructed.
(f) ‘Disbursements’ mean all reasonable and appropriate costs and out-of-pocket expenses incurred by the Expert in carrying out the Assignment, including travel, sustenance and hotel accommodation as required.
3. The Instructions
The Appointer will:
(a) provide the Expert with full and timely written instructions which clearly state:
(i) the purpose for which the Expert’s advice and services are required, including a description of the matter on which they are being sought
(ii) which factual aspects of the matter may be in dispute
(iii) whether the advice and services are to be provided in accordance solely with information supplied or will require independent investigation by the Expert
(iv) the precise nature of expertise called for
(v) the particular questions that are to be addressed
(vi) whether the Expert will be expected to confer with experts instructed on behalf of other parties with a view to reaching agreement on the issues or narrowing those in dispute
(vii) whether the Expert is to prepare a report for the advice of the Appointer and/or his Client or for use in court, and, if the latter, whether a draft version needs to be submitted in the first instance
(viii) any time constraints for the provision of the advice, the production of the report, etc.
(b) provide the Expert with such basic additional information as names, addresses, telephone numbers and dates of incidents.
(c) supply the Expert with good-quality copies of all relevant documents, specifying which (if any) may be excluded in the report the Expert has been asked to prepare.
4. Obligations of the Appointer
The Appointer will:
(a) inform the expert whether he or she needs to obtain authority to incur the estimated fees and disbursements before confirming the Expert’s instructions.
(b) in legal aid cases:
(i) notify the Expert that a legal aid certificate has been applied for, granted or amended
(ii) apply to the Area Office of the Legal Aid Board for prior authority to incur the Expert’s anticipated fees and disbursements and immediately advise the Expert should this authority be refused
(iii) apply to the Area Office for interim payments on account to settle the Expert’s invoices within the agreed time scale.
(c) in privately funded cases ensure that the Expert’s fees and disbursements are paid within the agreed time scale, whether or not the Appointer has been placed in funds by the Client.
(d) respond promptly to any reasonable request from the Expert for, i.a.
(i) clarification of instructions already given
(ii) further information or documents
(iii) permission to incur expense additional to that initially estimated
(iv) authority to engage others to undertake part of the assignment.
(e) not alter, or allow others to alter, the text or technical content of the Expert’s report(s) in any way without the Expert’s permission and authority.
(f) give prompt written warning of every meeting or hearing that the Expert is, or may be, required to attend and immediate notification should they be cancelled.
(g) keep the Expert informed as to the progress of the case and its outcome.
(h) not use, or allow others to use, the Expert’s report(s) for any purpose other than litigation in the matter on which the Appointer has sought the Expert’s advice and services.
5. Obligations of the Expert
When giving evidence in court, or preparing a report for use in court, the Expert’s primary duty is to the court: to be truthful as to fact, honest as to opinion and complete as to coverage of relevant matters. The evidence must be independent, objective and, in particular, unbiased towards the party responsible for payment. Subject to these overriding considerations, the Expert will:
(a) at all times use reasonable skill and care in carrying out the instructions as accepted.
(b) perform only those tasks for which the Expert has the requisite qualifications and experience to undertake, and the resources needed to adequately fulfil them within the allotted time span.
(c) keep detailed records of tasks undertaken.
(d) promptly notify the Appointer of:
(i) any conflict of interest that would disqualify the Expert or render it undesirable for the Expert to have continued involvement with the case
(ii) any requirement the Expert perceives for the Appointer to employ additional expertise.
(e) endeavour to be available for all hearings, meetings or other necessary engagements for which he or she has received adequate notice.
(f) not negotiate with the opposing party or their advisers unless specifically authorised to do so by the Appointer or instructed to do so by order of the court.
(g) not without good cause discharge from the appointment as Expert.
(h) at all times, both during and after completion of the Assignment, treat all aspects of it as confidential unless authorised by the Appointer to the contrary.
6. Intellectual Property Rights
Unless otherwise agreed in writing, all rights of ownership in written reports, photographs, recordings, models and other original work created by the Expert shall remain vested in the Expert.
7. Fees and Disbursements
In the absence of written agreement to the contrary:
(a) the Appointer shall be personally responsible for payment of the Expert’s fees and disbursements, whether or not the Appointer has been placed in funds by the Client (or, in legal aid cases, by the Legal Aid Board), and their amount will not be subject to taxation by the court or assessment by the Board.
(b) the Expert may present invoices at such intervals as considered appropriate, and payment of each invoice will be due within 30 days of its presentation, subject to any written waiver granted by the Expert in legal aid cases.
(c) the Expert shall be entitled to invoice and recover interest at the rate of 2.5% per month (or part thereof) on all overdue invoices and, in addition, the full amount of any legal and other costs incurred in recovering the money owing.
8. Cancellation Fees
The Expert shall be entitled to charge fees whenever:
(a) the Expert’s time has been reserved for a specific hearing, meeting or other engagement, or
(b) specific instructions have been given to the Expert for an investigation and report and due to settlement of the matter, or for any other reason not the fault of the Expert, the reservation of time has been cancelled or the instructions withdrawn.
9. Disputed Fees
In the event of a dispute over the amount of the Expert’s fees and disbursements, such sums that are not disputed shall be payable when due, irrespective of any counter-claim that may be alleged. That part which is in dispute can then be referred for resolution to a mediator acceptable to both parties.
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