ITIC was formed in 1992 through the merger of CISBA CLUB, a mutual insurer of shipbrokers, founded in 1925, and Transport Intermediaries Mutual Insurance Association (TIM).
Transport Intermediaries Mutual Insurance Association was formed in 1985 by Thomas R. Miller & Sons partnership with a view to expanding the sources and availability of liability insurance for all professionals in the transport industry. Since 1992, ITIC has grown steadily and has nearly 2,300 members in over 100 countries.
Today ITIC is managed by ITIM Co Ltd, a subsidiary of Thomas Miller & Co Ltd. Thomas Miller manages a number of world-leading mutual and other insurance companies providing insurance for shipping, transport and professional indemnity risks, including UK P&I Club, TT Club, HAMIA, BLP, OPDU, PAMIA and Bar Mutual.
These are ten golden rules drawn from ITIC’s experience of defending experts…
A lot of appointments are casual. If you are a professional then you should have terms and conditions. ITIC has drafted some standard trading conditions for expert witnesses which can be found later in this article. These trading conditions may need adapting to your specific circumstances but are a good starting point. Contracting on a sensible basis will greatly assist if a dispute arises.
To err is human – the answer is insurance. The professional’s clients should be able to expect that if the professional makes a mistake there is a reasonable sum available to compensate them. Meeting this expectation underpins confidence in the professional’s marketplace. That is one of the roles of professional indemnity insurance.
In addition to the potential liabilities, even an “innocent” expert can face substantial legal costs dealing with a claim. At best only a proportion of these costs will ever be recovered. One important consideration is that appointment as an expert is a personal appointment rather than a company one. Make sure your company’s policy covers you, as an individual, when acting as an expert, and not just when you are acting in the name of the company. Once you have appropriate terms and conditions and insurance there are some important considerations about how you perform your duties.
Don’t allow your desire to help your client blind you to the evidence. Our adversarial system doesn’t help. You will be described as “our expert” and the opponent’s witness as “their expert”. In spite of this, you are there to be an impartial expert, not an advocate of your client’s case. Problems happen if you allow yourself to over zealously “support the cause”. Your client will blame you if he loses.
As it says in the statement of truth you must sign, your evidence must be your complete professional opinion. Check that you haven’t disregarded anything because it doesn’t fit your theory.
The purpose of your evidence is to explain technical matters. This is very different from stating what you would have done in similar circumstances. Justification of your usual practice can taint your evidence.
Don’t be bullied. A survey conducted by an expert witness training company found that one in ten expert witnesses had been pressurised by a lawyer into changing evidence before the case had gone to court. It is your evidence and if it goes wrong you will have signed off on it.
Challenge inadequate or misleading instructions. The Expert Witness Institute’s terms make it clear that you are to be provided with comprehensive instructions.
Don’t accept instructions if you cannot be independent. The expert may be faced with a business dilemma of not wishing to alienate the principal but simply not wishing to say what is required.
Check that you are not conflicted. A surprising number of experts accept an engagement only to find that a colleague has dealt with the opposition.
Don’t stray outside the area of your expertise. Lawyers will seek to challenge whether the opponents’ expert is properly qualified to comment on every aspect of the case. If they can show you lacked expertise for part of your report your work will be discredited.
Standard trading conditions for expert witnesses by ITIC
These terms and conditions are published for the general interest of members of ITIC acting as an expert witness in the UK. The specific requirements of individual businesses vary and accordingly no responsibility can be taken for the suitability of these terms and conditions to a specific business or contract. As with all contractual terms it is important that the user ensures that they are properly incorporated in their contract with their counterparty. You should seek the advice of your usual legal advisor prior to using these terms and conditions. Guidelines on incorporating terms and conditions can be found on the ITIC website.
“Expert” is the Expert trading under these conditions.
“Client” is the party at whose request or on whose behalf the Expert undertakes the Services. This may on occasion be the “Solicitor” or “Insurer”.
“Solicitor” is the firm of solicitors and/or individual solicitor appointed by or acting on behalf of the Client. The Solicitor may be the Client.
“Insurer” is the insurer of the Client who may appoint the Expert directly or indirectly. The Insurer may be the Client.
“Report” means any report or statement supplied by the Expert in connection with the Services requested by the Client.
“Disbursements” means the cost of all reasonable photography, reproduction of drawings, diagrams, sketches and printing, duplicating and, where applicable, electronic transmission fees, and all reasonable and appropriate expenses including, but not limited to, reasonable travel, refreshments and hotel accommodation where an overnight stay is necessary.
“Fees” means the fees charged by the Expert to the Client for the Services excluding any Disbursements and value added tax where applicable.
The Expert shall provide its services solely in accordance with these terms and conditions (“Conditions”).
The Expert will act as an expert witness in relation to a claim or dispute involving the Client. The expert, if required, will provide written reports, witness statements and oral testimony in a court or other tribunal. The expert may also, if required, attend settlement meetings and/or mediations. The Client, either directly or via their Solicitor or Insurer, will set out in writing the exact services it requires the Expert to provide. Where possible, the Expert will confirm these in writing or alternatively the Expert will advise what services it will perform in connection with the Client’s instructions. Once the Expert and the Client have agreed what services are to be performed (“the Services”) any subsequent changes or additions must be agreed by both parties in writing.
(a) Where it is agreed that the Client shall pay the Expert’s Fees and Disbursements: The Client will pay in accordance with these Conditions and in any event not later than 30 days following the relevant invoice date, or in such other manner as may have been agreed in writing between the parties. Any delay in payment shall entitle the Expert to interest at 4% above the Base Lending Rate of HSBC Bank Plc prevailing at the time of default or the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 applicable at the time of default, at the discretion of the Expert.
(b) Where it is agreed that the Insurer shall pay the Expert’s Fees and Disbursements: The Insurer will pay in accordance with these Conditions and in any event not later than 30 days following the relevant invoice date, or in such other manner as may have been agreed in writing between the parties. Any delay in payment shall entitle the Expert to interest at 4% above the Base Lending Rate of HSBC Bank Plc prevailing at the time of default or the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 applicable at the time of default, at the discretion of the Expert.
(c) Where it is agreed that the Solicitor shall pay the Expert’s Fees and Disbursements: The Solicitor, when in receipt of the Expert’s invoice will promptly send a disbursement invoice to the Client. The Solicitor shall pay the Expert within 14 days of receiving funds from the Client. Any delay in payment by the Solicitor shall entitle the Expert to charge interest on the Fees and Disbursements to the Solicitor at 4% above the Base Lending Rate of HSBC Bank Plc prevailing at the time of default or the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 applicable at the time of default, at the discretion of the Expert.
It is understood that the Solicitor is usually the agent of the Client in the appointment of the Expert and therefore, the Solicitor will have no direct liability for the Expert’s fees UNLESS the Expert is acting directly for the Solicitor or the Solicitor has agreed to be responsible for paying the Fees and Disbursements.
5. Obligations and Responsibilities
The Client undertakes to ensure that full instructions are given to the Expert, either directly or via their Solicitor and/or Insurer, and are provided in sufficient time and good order to enable the Services to be performed. The Client must procure all necessary access for the Expert to any goods, cargo, premises, vessels, installations and/or transport and to ensure that all appropriate safety measures are taken to provide safe and secure working conditions where appropriate. The Expert shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions. It is understood by the Client that the Expert’s overriding duty is to the Court.
The Expert shall use reasonable care and skill in the performance of the Services in accordance with sound practice. The Expert’s overriding duty is to the Court.
The Expert shall submit a written Report to the Client following completion of the agreed services providing the Expert’s opinion, unless otherwise expressly instructed by the Client (directly or via their Solicitor and/or Insurer) not to do so.
(d) Attending Hearings:
The Expert, where necessary, will attend at court or other equivalent hearing (i.e. arbitration). The Expert may also attend mediations or settlement meetings if requested to do so and the date is acceptable and agreed by all parties.
The Expert understands that the information provided by the Client may be subject to confidentiality and agrees not to permit access to such information to any third party unless the Client expressly grants permission. This obligation will not however extend to information which (i) was already or becomes known to the Expert through other sources not subject to such an obligation of confidentiality (ii) is or becomes known to the public generally other than as a result of a breach of this obligation or (iii) which the Expert is obliged to disclose pursuant to an order of a court or other such authority. In all cases such obligation of confidentiality shall be deemed to end 3 years after the end of performance of the Services. The end of Services being the date of the Expert’s final invoice.
(f) Intellectual Property:
The right of ownership in respect of all original work created by the Expert remains the property of the Expert. The Expert will provide a licence for the Client (and/or the Solicitor and/or the Insurer) to use the work for all reasonable uses.
(g) Conflict of Interest/Qualification:
The Expert shall promptly notify the Client of any conflict of interest or lack of suitable qualifications and experience, which would, in the opinion of the Expert, render it undesirable for the Expert to continue its involvement with the appointment. The Client shall be responsible for payment of the Surveyor/Consultant’s Fees up to the date of notification.
(a) Without prejudice to Clause 7, the Expert shall be under no liability whatsoever to the Client for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect and howsoever arising UNLESS same is proved to have resulted solely from the negligence, gross negligence or wilful default of the Expert or any of its employees or agents or sub-contractors.
(b) In the event that the Client proves that any direct loss, damage, delay or expense was caused by the negligence, gross negligence or wilful default of the Expert aforesaid, then, save where such loss, damage, delay or expense has resulted from the Expert’s personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result, the Expert’s liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a sum calculated on the basis of ten times the Expert’s total fees for the Service or £125,000 whichever is the greater. The Expert shall not be liable for any indirect or consequential loss at all. The Expert shall also not be liable for damage to equipment and other items placed at its disposal by or on behalf of the Client however such loss or damage occurs.
Except to the extent and solely for the amount therein set out that the Expert would be liable under Clause 6, the Client hereby undertakes to keep the Expert and its employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them, and against by any party (including, but not limited to, the Solicitor and Insurer) and in respect of all costs, loss, damages and expenses (including legal costs and expenses on a full indemnity basis) which the Expert may suffer or incur (either directly or indirectly) in the course of providing the Service under these Conditions.
8. Force Majeure
Neither the Expert nor the Client shall, except as otherwise provided in these Conditions, be responsible for any loss, damage, delay or failure in performance hereunder arising or resulting from act of God, act of war, seizure under legal process, quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people.
The Expert shall effect and maintain, at no cost to the Client, Professional Liability Insurance for such loss and damage for which the Expert may be held liable to the Client under these Conditions.
10. Time Bar
Any claims against the Expert by the Client shall be deemed to be waived and absolutely time barred upon the expiry of one year from the submission date of the final invoice to the Client.
If a court finds that any provision of these terms and conditions is invalid, illegal or unenforceable, that provision shall, to the minimum extent required, be deemed deleted and the validity, legality and enforceability of the remainder of that and all other provisions of these terms and conditions shall not be affected.
12. Jurisdiction and Law
These Conditions shall be governed by and construed in accordance with the laws of England and Wales and any dispute shall be subject to the exclusive jurisdiction of the English Courts.
ITIC reserves all rights, including copyright, trademarks and other intellectual property rights, in these standard trading conditions and no part thereof can be redistributed, republished or stored in any format without the express written permission of ITIC.
ITIC is the leading provider of professional indemnity insurance to the marine sector.
Globally, ITIC provides professional indemnity insurance for:
• more than 500 liner agents and port agents;
• the world’s major ship broking companies;
• more than 350 other ship broking companies;
• over 180 naval architects;
• over 150 ship and crew managers;
• marine registries, new building supervisors, and shipping pool managers all over the world.
Contact ITIC by post at 90 Fenchurch Street, London EC3M 4ST.
Telephone: +44 20 7338 0150
Article first published on the ITIC website in November 2018 and reprinted here with their kind permission.