TERMS OF ENGAGEMENT
EXPERT WITNESS INSTITUTE
MODEL TERMS AND CONDITIONS OF ENGAGEMENT
Introduction
1.1 The Appointer has engaged the Expert to advise or report in accordance with these Terms and Conditions of Engagement.
1.2 The Civil Procedure Rules 1998 (the CPR) including any protocol approved thereunder, shall prevail over any part of this document which is inconsistent with the CPR.
1.3 These Terms and Conditions of Engagement are based on the Model Terms and Conditions of Engagement of the Expert Witness Institute.
1.4 The Expert is Roy Ilott, FRICS, MEWI, Chartered Building Surveyor.
Definitions
1.1 Appointer(s) - means the party or parties instructing the Expert, which may be one or more of, a solicitor, an insurance company, a Government department, a local authority, a corporate body, partnership or other firm or organisation and any individual who seeks advice or the provision of an expert report from the expert.
2.2 Instructions - means the written statement of services required by the appointer of the expert including sufficient details of the relevant issue to enable the expert to comply with the Civil Procedure Rules 1998 and any order of the Court.
2.3 Court - means any Court of Law, Tribunal or body concerned with the process of arbitration or dispute resolution.
2.4 Advisor - means any expert who is retained to give advice on an issue before it becomes a matter of litigation under the CPR.
2.5 Party's Expert - means an expert who is instructed to provide advice or a report by one or other of the parties to a dispute (claimant or defendant).
2.6 Single Joint Expert (SJE) - means an expert who is appointed under the CPR Part 35.7 to submit expert evidence on a particular issue on behalf of all litigating parties.
2.7 The Client(s) - means the parties, persons, Government department, local authority, firm or company on whose behalf the appointer(s) has instructed the expert to advise or prepare a report for the court. Where more than one party, or a party and their solicitor, the appointment and liability to pay fees is to be jointly and severally made, unless specifically recorded to the contrary in the letter of acceptance.
2.8 Advice - means the expert's opinion on an issue which lies within his field of competence or expertise to assist the instructing solicitor in deciding whether or not to initiate court proceedings on behalf of the client.
2.9 Report - means the written report prepared by the expert for the assistance of the Court in accordance with the CPR Part 35.10.
2.10 Fees & Disbursements - means the expert's professional charges for carrying out the appointer's instructions together with all reasonable expenses incurred in discharging these obligations such as relevant out of pocket expenses including mileage, rail travel, reasonable refreshments, together with the cost of photocopying, reproduction of diagrams and drawings and other similar expenses incurred in the production of the report, as set out in more detail in Clause 5.
2.11 Legal Aid - means cases where the Legal Services Commission or such other governmental authority as may be involved is funding a party in legal proceedings.
The Appointer's/Appointors' obligations:
3.1 To provide clear written instructions and copies of all relevant documents.
3.2 Where an SJE is appointed, all appointers shall either issue joint instructions or agree to a single set of instructions. The SJE shall not start work until such instructions have been received. Any appointer may issue separate additional instructions to the SJE, in which instance he must send a copy to every other appointer.
3.3 To keep the expert informed of and ascertain his availability for all relevant court dates. Where there is more than one appointer, the appointers should agree as to who is to accept that obligation.
3.4 In legal aid cases not to instruct the expert to start work until the Legal Services Commission has granted prior authority, or the appointer is a contracted supplier with devolved powers in the relevant category of work.
3.5 To deal promptly with the Expert's requests for information and/or further instructions.
3.6 To promptly inform the Expert of the making of any Court Order affecting the Expert and supply the Expert with a copy thereof.
The Expert's obligations:
4.1 The expert's over-riding duty is to the Court and he must act with objectivity and independence in carrying out his instructions.
4.2 Only to accept appointments where he has relevant qualifications and experience.
4.3 To advise the appointer(s) of any conflict of interest (actual or perceived).
4.4 The expert will use all reasonable skill, care and the due diligence expected of a competent Expert in considering the matter and carrying out his instructions. The report will be prepared in accordance with the latest RICS Guidance Notes.
4.5 When instructed to report to the Court, to do so in compliance with the relevant requirements of the CPR (including Practice Directions and any approved protocols) and within any agreed time limit.
4.6 When ordered to meet with an expert for an opposing party, to conduct such meeting in accordance with the CPR as defined immediately above.
4.7 To deal with written questions from an opposing party on his report within any time limit set by the Court, such replies to form part of the expert's report.
4.8 To deal with all other matters promptly and where appropriate, within any time limits agreed by the appointer or set by the Court.
4.9 Unless otherwise agreed, to prepare an advice and/or report at a cost proportionate to the sums in issue. If in doubt, the expert should seek advice from his appointer as to what is proportionate. Where the expert becomes aware that his costs are likely to exceed any estimate or quotation given at an earlier date, he must inform the appointer(s) immediately.
4.10 To make himself available for court hearings, conferences and other meetings.
4.11 To preserve confidentiality.
4.12 To remain objective and impartial.
4.13 When acting as an SJE, to conduct himself consistent with the principles of fairness and transparency.
Fees and Disbursements:
For the avoidance of doubt, no instructions can or will be accepted where payment is contingent on the outcome of the case.
5.2 The basis of fees is specified in the Appendix to these Terms and Conditions.
5.3 It must be noted and accepted by the Appointer that the provision of further questions or documents, after an initial discussion as to the likely time, will affect any fee or time estimate given.
5.4 The charging basis for attendance at a hearing is specified in the Appendix to these Terms and Conditions.
5.5 Value Added Tax (VAT) is to be added at the prevailing rate.
5.6 The point(s) at which invoices will be presented are specified in the Appendix, and are to be paid promptly or the priority of the matter may be reviewed.
5.7 Where the expert is appointed as an SJE, unless otherwise provided for, the appointers will be jointly and severally liable for the expert's fees.
5.8 The Expert's fees shall be paid in full regardless of the outcome of any assessment by the court.
5.9 Disbursements including travel and accommodation costs shall be charged at the cost incurred. They shall include, but not be limited to those listed at clause 2.10.
5.10 Travel time is chargeable, and unless stated to the contrary, is the hourly rate as specified.
5.11 Where a cancellation fee may be charged, that fact and the basis of charge are specified in the Appendix.
5.12 Where questions are posed to an expert under CPR Part 35.6(1)(a), by a party other than his appointer, the party posing the questions will bear the cost of the time and any disbursements incurred in replying.
5.13 Where a fee note has been rendered, payment must be received in full before any additional instructions will be accepted.
5.14 Interim fees may be charged at any reasonable point e.g., (but not limited to) on production of a draft advice or report. Where the expert reserves the right to seek payments on account, that fact is specified in the Appendix.
5.15 The Appointer will pay the Expert the fee on receipt of the fee account and he reserves the right to suspend work if fees are unpaid, or to add interest at 4% per month above the prevailing base rate of the HSBC on all overdue fee accounts.
5.16 Where there is a delay in the settlement of any fee invoice the Expert reserves the right to revise the priority given to the Appointer's matters.
5.17 The stated hourly rate shall apply to all time spent, whether on site, in the office, at meetings or travelling.
5.18 The stated hourly rate shall apply to all time spent attending at, including waiting, Courts, Tribunals etc. Days reserved for a court hearing will be assessed at 9 hours per day and will be invoiced for payment prior to attendance. This fee remains due unless cancelled before 10.00 am on the preceding working day.
Disputes:
6.1 In the event of a dispute over fees, such part as is not disputed shall be paid within the agreed credit period.
6.2 Any dispute arising between the expert and appointer shall, if not resolved, be referred to a mediator appointed by EWI (Expert Witness Institute).
6.3 In the event that mediation does not resolve the dispute, it shall be referred to an arbitrator appointed by EWI. The arbitrator shall deal with costs in his award.
6.4 The expert is required by the Royal Institution of Chartered Surveyors to state that a copy of our Complaints Handling Procedure is available on request.
Miscellaneous
7.1 The expert shall retain all intellectual property rights over his advice and/or report.
7.2 The expert should be identified by name.
7.3 These terms are not intended to cover the appointment of the expert as assessor to the court under CPR Part 35.15.
Inspections
8.1 Unless otherwise stated, and only to the extent of the property relating to the instructed matters, the property will be inspected externally, from within its cartilage, or from access roads. Internal floor coverings will not be lifted, where fixed down and items of furniture will not be moved. All reasonably accessible parts of the property will be inspected, e.g., roofs where they can be reached from a 3 metre ladder. Binoculars will be used, where appropriate, from ground level. The Appointer will be advised of any additional inspection or access which is considered desirable.
8.2 Any inspection will be by visual means only. It will not include any detailed assessment of concealed elements or services.
8.3 Advice will be given where it is considered necessary to carry out further tests, exploratory work or inspections on behalf of the Appointer and where this will entail additional fees and expense.
8.4 Any parts of the structure that is covered, unexposed or inaccessible, including contaminated land, foundations, lintels or other structural elements, will not be inspected. No warranty will be given, or opinion expressed, concerning these matters.
| APPENDIX | Reference in Terms & Conditions | |
| Deferred terms do not apply to these instructions. | 5.1 | |
| The current hourly rate for all time spent, whether on site, in the office or at meetings for the preparation of evidence is £ , plus VAT. The Appointer will be advised of increases if they occur during the period of an instruction. | 5.2 | |
| The provision of budget fees for such issues as this is considered impracticable, but guidance on likely costs and stage invoices will be submitted. These will provide the Appointer with an indication of the likely costs. | 5.3 | |
| The daily rate for attending a hearing is based on the equivalent of 9 hours of my hourly rate and will be invoiced for payment ahead of the hearing, and is based on the number of days reserved to attend, and includes time spent travelling and waiting. If informed that the Expert will be able to return to the office by 2pm, he will charge a half-day rate based on 4.5 hours. | 5.4 | |
| Value Added Tax will be added to the Expert's charges at the rate in force at the date the fees are rendered. | 5.5 | |
| Fees will be rendered monthly or otherwise at the Expert's discretion. | 5.6 | |
| Fees rendered are payable on demand. We reserve the right to charge interest on overdue debts at the rate of 4% per month above the prevailing HSBC base rate. | 5.6 | |
| Travel time is chargeable at the standard hourly time charge as stated above. | 5.10 | |
| Where instructed to prepare for and attend a meeting or hearing, and for whatever reason those instructions are revoked, the Expert reserves the right to make a cancellation charge, e.g., To be charged at a full day rate and will apply to any cancellation received, not just sent, by 10.00am on the day before attendance is required at a hearing etc. Time spent in preparing for the hearing will also be charged, and be due, as the hourly rate. | 5.11 | |
| As the Expert will not be seeking payment on account, the Appointer is expected to ensure sufficient funds are available to make payment by return and failure to do so may delay the production of the report. | 5.14 |
Please contact us to discuss any points or services we can provide.