Draft terms and conditions for expert witnesses are designed to find ‘a middle ground’ between experts and the solicitors who instruct them, their author has said.

A pro forma contract currently being finalised is designed to help experts to specify the services they will provide and the fees they are due and when, contain a limitation of liability and also provide for alternative dispute resolution in the case of disagreements.

Announcing the initiative at the annual Bond Solon Expert Witness Conference last week, Helen Swaffield, head of Contract Law Chambers, said the terms and conditions would give experts the ‘protection’ of limiting their liability. But she also said: ‘Never let the contract get in the way of a good working relationship.’

Swaffield told the Gazette that the draft contract ‘clarifies the offering and reduces the risk of the relationship [between the expert and the solicitors] being spoilt. It is not pushing it [liability] back to the solicitor entirely, it is an appropriate share of liability,’ Swaffield said. She described the terms as a ‘halfway house’ which represented ‘a business relationship’ between the expert and solicitor.

Expert witnesses will still be bound by procedure rules, she added, saying the terms and conditions were 'much more about making sure that they get paid on time and that they bear an appropriate burden of liability'.

Asked why solicitors had not drafted a similar set of pro forma terms and conditions, Swaffield said: ‘Because they are on the other side … you have got a sort of conflict between the expert and the solicitor.’ She said the terms and conditions would not resolve that conflict, but would put experts and solicitors on a ‘business footing’.

Swaffield said: ‘I think solicitors do have to be responsible for choosing the right expert.’ Solicitors and experts should share an ‘appropriate’ amount of liability, she said, adding: ‘Some of that has to be borne by the solicitor, some of that has to be borne by the expert.’

She also said that ‘we are taking soundings from solicitors who have been very helpful’ and said solicitors would continue to have input on future drafts of the terms and conditions.

Anyone wish to contribute to the draft terms and conditions should email expertwitness@bondsolon.com.