Finch consulting limited (“Finch”). Terms and conditions for provision of expert services (“Terms”). Definitions
“CPR” means the Civil Procedure Rules (including all Practice Directions and approved Protocols) as amended from time to time.
“Client” means the party or parties instructing FINCH to provide the Services which may be a person, insurance company, Government department, local authority, solicitor, partnership or other firm, company or organisation and as identified in the Instructions.
“Confidential Information” means all records, reports, data and other information and know-how belonging to either party which are disclosed to the other as a result of these Terms other than that which is already in its possession or the public domain other than a result of a breach of clause 8 of these Terms.
“Contract” means the agreement between the Parties based on these Terms, including the Instructions together with any special terms agreed between the Parties in writing.
“Court” means any court of law, tribunal or other body concerned with the process of arbitration or dispute resolution.
“Deliverables” all documents and materials (including any Reports) delivered by FINCH or its sub-contractors, consultants or employees in relation to the Instructions and/or the Services.
“Expert” means any member, employee or associate of FINCH who is instructed to provide the Services on behalf of FINCH including circumstances where the member, employee or associate is instructed as a Single Joint Expert.
“Fee” means the fee charged to the Client by FINCH for providing the Services.
“Instructions” means the Client’s written instructions to FINCH to provide the Services to be delivered to the Client under a Contract.
“Intellectual Property Rights” means all copyright and related rights, patents, right to inventions, utility models, design rights, registered design, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, or other proprietary rights of a similar or equivalent nature whether registered or unregistered and including all applications for and renewals or extensions of such rights, arising in the United Kingdom or anywhere in the world
“Legal Aid” means cases where the Legal Services Commission or such other governmental authority as may be involved in funding a party in legal proceedings.
“Parties” means both FINCH and the Client only.
“Report” means the written report prepared by the Expert for the assistance of the Court in accordance with the Civil Procedure Rules and/or the Criminal Procedure Rules.
“FINCH” means Finch Consulting Limited.
“Services” means the services to be provided by FINCH under the Contract together with any other services which FINCH provides or agrees to provide to the Client in accordance with the terms of this Contract.
“Single Joint Expert” means an Expert who is appointed under CPR 35.7 (or any replacement thereof) to submit expert evidence on a particular issue on behalf of all litigating parties.
1.1 The Contract comprises the entire agreement between the Parties relating to its subject matter to the exclusion of all other terms and conditions, prior or collateral agreements, negotiations, notices of intention and representations.
1.2 The Client’s Instructions constitute an offer by the Client to purchase the Services from FINCH on these Terms and on any special terms agreed between the Parties. FINCH shall accept such offer by a written acknowledgement or, if earlier, by FINCH starting to provide the Services whereupon a contract for the supply and purchase of those Services on these Terms will be established. The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in the Client’s Instructions, purchase order or other document shall not govern this Contract.
1.3 Any Fee quoted by FINCH to the Client for the provision of the Services shall not be construed as being an offer and any Instructions sent to FINCH shall not be binding on FINCH until FINCH has accepted such an offer in accordance with clause 1.2 above.
1.4 These Terms shall be subject to any special conditions agreed in writing between the Parties. In the event of any inconsistency the special conditions shall prevail.
2. Obligations of the Client
2.1 The Client shall:
2.1.1 ensure that the Instructions are clear and comprehensive;
2.1.2 provide copies of all relevant documentation to the Expert;
2.1.3 ensure that where an Expert is instructed as a Single Joint Expert, the Expert is sent a single set of joint Instructions. A Client may issue additional Instructions to the Expert in which case that Client shall send a copy of such additional Instructions to any other Client who has instructed the Expert as a Single Joint Expert in the same matter;
2.1.4 keep the Expert informed of and ascertain the Expert’s availability for all relevant Court dates and keep the Expert notified of any relevant time limits that have been agreed;
2.1.5 promptly inform the Expert if the case upon which the Expert has been instructed to provide the Services is settled or is otherwise discontinued;
2.1.6 with regard to Legal Aid cases, not instruct the Expert to commence the provision of the Services until the Legal Services Commission or other relevant governmental authority has granted prior authority;
2.1.7 deal promptly with the Expert’s requests for any further information or instructions;
2.1.8 promptly inform the Expert if any order of the Court is made which affects or may affect the Expert and shall provide the Expert with a copy of the order.
2.2 The Client shall be liable to pay to FINCH, on demand, all reasonable costs, charges or losses sustained or incurred by FINCH (including any direct, indirect or consequential losses, loss of profit, loss of reputation, loss of or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to FINCH confirming such costs, charges and losses to the Client in writing.
3. Obligations of FINCH
The Expert, acting on behalf of FINCH, shall:
3.1 provide the Services objectively and with independence and in accordance with the Expert’s overriding duty to the Court;
3.2 only accept Instructions where the Expert possesses the relevant qualifications and experience;
3.3 use reasonable skill and care in providing the Services;
3.4 advise the Client of any conflict of interest (actual or perceived);
3.5 when instructed to provide the Services to the Court, do so in compliance with the relevant CPR;
3.6 when instructed to engage in a meeting with an expert that is instructed by an opposing party, fully comply with the requirements of the CPR in relation to the required conduct in such a meeting;
3.7 use best endeavours to deal with any written questions on the Expert’s Report from an opposing party subject, if required, to the Client providing any necessary assistance and guidance within any time limit set by the Court, such replies to form part of the Expert’s Report;
3.8 inform the Client as soon as possible if the Expert becomes aware that the Fee payable by the Client is likely to exceed any estimate or quotation given by the Expert at an earlier stage;
3.9 when acting as a Single Joint Expert, conduct himself/herself in a manner which is consistent with the principles of fairness and transparency; and
3.10 use reasonable endeavours to meet the completion dates and Fees quoted for the provision of the Services but any dates and fees quoted shall be estimates only and time should not be of the essence for the performance of Services.
4. Fees and Payment
4.1 All Fees quoted by FINCH are exclusive of Value Added Tax (VAT) and any related expenses including but not limited to travel and accommodation costs incurred by FINCH in connection with the provision of the Services which will be charged to the Client accordingly.
4.2 If the Services are provided on a time and materials basis:
4.2.1 FINCH’s Fees shall be calculated in accordance with FINCH’s standard daily fee rates. FINCH’s standard daily fee rates for each individual are calculated on the basis of an eight-hour day from [8:00am to 5:00pm] worked on business days;
4.2.2 FINCH shall ensure that every individual whom it engages on Services completes time sheets recording time spent on the Instructions and FINCH shall use such timesheets to calculate the fees;
4.2.3 The parties agree that FINCH may without prejudice to its rights under clause 4.13 review and increase its standard daily fee rates, provided that such fees cannot be increased more than once in any 12 month period, FINCH shall give the Client written notice of any such increase 3 months before the proposed date of that increase.
4.2.4 FINCH shall invoice the Client monthly in arrears for its Fees for the month concerned.
4.3 Where Services are provided for a fixed price, the total price for the Services shall be the amount notified by FINCH before or immediately after commencement of the Services as amended from time to time in accordance with clause 4.13.
4.4 Any fixed price and daily rates excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by FINCH for the supply of the Services. Such expenses, materials and third party services shall be invoiced by FINCH.
4.5 If the Instructions require specific investigations, FINCH shall seek the Client’s authority before incurring the cost of such investigations and the Client shall be responsible for any costs associated with such investigations.
4.6 All Fees quoted by FINCH shall remain valid for a 30 day period only.
4.7 Unless otherwise agreed between the parties, payment of each invoice shall be made in full and in cleared funds, without deduction or set-off, within 30 days of the date of the invoice. Time for payment shall be of the essence of this Agreement.
4.8 In the event that the Client breaches clause 2.1.5 above and as a consequence FINCH incurs a delay in sending the invoice to the Client, the Client shall not object to the payment of any invoice and shall make payment in accordance with clause 4.7 above.
4.9 FINCH may (without prejudice to any other right or remedy) charge interest on any overdue amount at the rate of 4% above the base rate of the Barclays Bank from time to time before and after judgment and suspend all Services until payment has been made in full.
4.10 No Instructions can be accepted by FINCH where payment of the Fee is contingent upon the outcome of the case in question.
4.11 Where the Expert is instructed as a Single Joint Expert the Fee payable shall be divided equally between each Client unless otherwise agreed between the Parties. In any event each Client shall be jointly and severally liable for the Fee payable to FINCH.
4.12 FINCH’s Fee shall be paid in full regardless of the outcome of any assessment by the Court.
4.13 FINCH reserves the right, upon giving the Client written notice, to increase the Fee payable by the Client in circumstances where the Services to be provided extend beyond the initial Instructions.
4.14 Notwithstanding any other provision of the Contract, all sums payable to FINCH under the Contract shall become due immediately on termination. This condition is without prejudice to any right to claim for interest under the law or any such right under the Contract.
The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against FINCH in order to justify withholding payment of any such amount in whole or in part. FINCH may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by FINCH to the Client.
5. Cancellation of Services
5.1 The Services shall continue to be supplied until the Instructions are completed or the Services provided, or, if earlier, the Contract is otherwise cancelled in accordance with this clause 5 or terminated in accordance with clause 10.
5.2 Following acceptance by FINCH of the Client’s offer pursuant to clause 2, no cancellation and/or suspension, either in whole or in part, may be made by the Client other than with the prior written consent of FINCH.
5.3 The Client shall indemnify FINCH in full against all loss (including without limitation loss of profit, loss of use, loss of production, business interference or increased cost of working or any other special or consequential loss) damages, costs, expenses and other liabilities awarded against or incurred by FINCH as a result of or in connection with the cancellation and/or suspension of the Services.
5.4 FINCH reserves the right to charge the Client one (1) day of an Experts full rate should the Client cancel or suspend the contract prior to the commencement of the Services.
In the event that the Client instructs the Expert to set aside dates for either a conference or a trial which is subsequently cancelled the following scale of charges shall apply:
5.5 For conferences or trials scheduled to last for up to 5 days:
Cancellation Date (from scheduled commencement date of conference or trial)
Charge payable by Client (per number of days set aside for the conference or trial)
- 16 working days + — No charge
- 11 -15 working days — £150 per day
- 5-10 working days — £250 per day
- Less than 5 working days — £580 per day plus any preparation time
5.6 For conferences or trials scheduled to last more than 5 days:
Cancellation Date (from scheduled commencement date of conference or trial)
Charge payable by Client (per number of days set aside for the conference or trial)
- 21 working days + — No charge
- 16 -20 working days — £150 per day
- 6-15 working days — £250 per day
- Up to 5 working days — £580 per day for the first 5 days and £300 per day thereafter
6.1 The Client shall not without the prior written consent of FINCH, at any time from the date of the Contract until the expiry of 6 months after the last date of supply of the Services, solicit or entice anyway from FINCH or employ or attempt to employ any person who is, or has been within the previous six months engaged as an employee or sub-contractor of FINCH in the provision of the Services.
6.2 The Client acknowledges that the Services of the Expert are provided for and on behalf FINCH and the Client shall not hold the Expert or any other employee of FINCH personally liable for the provision of the Services.
7. Force Majeure
If either party is unable wholly or in part to carry out any obligation (except an obligation or pay) under the Contract due to any cause beyond its control (which shall include industrial disputes) such party shall give to the other party prompt notice thereof with full details whereupon such obligation shall be suspended so far as it is affected by such cause during the continuance of such cause and that party shall not be liable for any loss or damage occasioned to the other party provided that the party affected shall take all reasonable steps to eliminate the cause and resume performance as promptly as practicable.
Neither party shall use any Confidential Information for any purpose other than in connection with the performance of the Services including the preparation of the Expert’s Report or disclose any Confidential Information without the prior written consent of the other party to any person other than to employees, agents or sub-contractors to whom disclosure is necessary to enable performance of the Services and each party shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the party concerned. This clause 8 shall survive termination or expiry of the Contract.
9. Intellectual Property
9.1 Except as expressly agreed between FINCH and the Client in writing, neither party grants to the other any right or licence to copy or use any written or oral information, material or invention protected by any Intellectual Property Rights subsisting prior to the Contract and vested in that party.
9.2 FINCH shall own any Intellectual Property Rights arising in the course of the Services and in any Deliverables and may apply for protection for the same throughout the world in which event the Client shall provide such assistance as is requested for the protection to be obtained. FINCH licenses all such Intellectual Property Rights to the Client free of charge and on a non-exclusive basis to such extent as is reasonably necessary for the Client to make use of the Deliverables and the Services as provided for in the Contract.
10. Term and Termination
10.1 The Services shall be provided by FINCH to the Client from the date specified in the Instructions or as otherwise varied from time to time by agreement between FINCH and the Client in writing.
10.2 The Services shall continue to be supplied until the Instructions are completed or the Services provided, or, if earlier, the Contract is otherwise terminated in accordance with this clause 10.
10.3 Without limiting its other rights or remedies, FINCH may terminate the Contract with immediate effect without written notice to the Client if:
10.3.1 the Client commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of the Client being notified in writing of the breach;
10.3.2 the Client suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
10.3.3 the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.3.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Client;
10.3.5 the Client is the subject of a bankruptcy petition or order;
10.3.6 a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.3.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client (being a company);
10.3.8 a floating charge holder over the assets of the Client (being a company) has become entitled to appoint or has appointed an administrative receiver;
10.3.9 a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;
10.3.10 any event occurs or proceeding is taken with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.3.2 to clause 10.3.9 (inclusive);
10.3.11 the Client suspends or ceases or threatens to suspend or cease to carry on all or a substantial part of its business.
10.4 Without limiting its other rights or remedies, FINCH shall have the right to suspend provision of the Services under the Instructions or any other instructions between the Client and FINCH if the Client becomes subject to any of the events listed in clause 10.3, or FINCH reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
10.5 On termination of the Contract for any reason:
10.5.1 the Client shall immediately pay to FINCH all of FINCH’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, FINCH shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.5.2 the Client shall return all Deliverables which have not been fully paid for. If the Client fails to do so, then FINCH may enter the Customer’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
10.5.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the contract which existed at or before the date of termination or expiry; and
10.5.4 conditions which expressly or by implication have effect after termination shall continue in full force and effect.
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION.
11.1 FINCH shall not be liable for any delay or failure to perform the Services if its performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees. FINCH shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
11.2 This clause 11 sets out the entire financial liability of FINCH (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
11.2.1 any breach of the Contract;
11.2.2 any use made by the Client of the Deliverables, the Services or any part of them or any results of the Services;
11.2.3 any representation, statements, tortious act or omission (including negligence) arising under or in connection with this Contract.
11.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.4 Nothing in these Conditions limits or excludes the liability of FINCH for death or personal injury caused by negligence or for any damage or liability incurred by FINCH as a result of fraud or fraudulent misrepresentation by FINCH.
11.5 Subject to clauses 11.3 and 11.4:
11.5.1 FINCH shall not be liable for:
18.104.22.168 loss of profit;
22.214.171.124 loss of business;
126.96.36.199 depletion of goodwill and/or similar losses;
188.8.131.52 loss of anticipated savings;
184.108.40.206 loss of contract;
220.127.116.11 loss of use;
18.104.22.168 loss of or corruption to data or information;
22.214.171.124 or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
11.5.2 FINCH’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of the Contract shall be as follows:
126.96.36.199 In respect of direct damage to physical property of the Client resulting from the negligence of FINCH, its employees, agents or sub-contractors, for which FINCH can and does insure, shall not exceed £5m in respect of any one event or series of connected events; and
188.8.131.52 In all other cases, FINCH’s liability shall not exceed the fee paid in respect of the Services under the Contract.
12.1 The Contract shall be governed by and be construed in accordance with the law of England and Wales. Both Parties submit to the exclusive jurisdiction of the English courts.
12.2 FINCH shall retain all documents and records relating to the provision of the Services for a period of 7 years from date of instruction or up until the date that FINCH is advised that the matter has been settled or discontinued, whichever is sooner.
12.3 If any provision (or a part of a provision) of the Contract is found by any Court or administrative body or competent jurisdiction to be invalid, unenforceable or illegal the other provisions shall remain in force.
12.4 None of the provisions of the Contract shall be regarded as waived or amended by either party unless the same is agreed in writing and executed by both Parties.
12.5 No person who is not a party to the Contract shall have any right to enforce any provision of the Contract, which expressly or by implication, confers a benefit on him without the prior agreement in writing of both Parties, which agreement should specifically refer to this clause 12.5.