Private FDR Appointment Terms

Terms of Appointment

1. The parties agree that the evaluator is appointed to provide a neutral evaluation of the dispute that has arisen between them (“the Indication”).

2. The Indication shall be provided at a meeting (“the PFDR”) during which both parties have had the opportunity to make oral submissions to the evaluator (“the Hearing”).

3. The parties agree and acknowledge that the evaluator cannot offer either party legal advice and has no power to make a binding decision or award in respect of their dispute, but will provide the parties with the Indication in order to facilitate a settlement being reached between the parties.

4. The parties agree and acknowledge that the evaluator has no control over the information provided by them to her nor the disclosure made by them and the responsibility lies with the parties to make full, frank and clear disclosure to each other and, if applicable, the Court.

5. The evaluator’s fee includes:
   
   1. pre-reading of one bundle
   2. Conducting the Hearing PROVIDED THAT after the Indication has been given to the parties, they agree that the evaluator may be released so long as she is available to reconvene the Hearing at a time before 5pm at the parties’ joint request to provide any further neutral evaluations of the remaining issues in dispute between the parties.

6. Any additional bundle will be charged at a rate stipulated in advance in writing by the evaluator’s clerk.  

7. For the purpose of these terms of appointment a “bundle” shall be defined as and limited to:
   
   1. if a paper bundle, one A4 size ring binder or lever arch file limited to no more than 350 indexed and paginated pages of A4 paper and 350 sides of text;
   2. If an electronic bundle, one PDF file (OCR searchable) and limited to no more than 350 indexed and paginated pages.

8. Travelling time for any hearing outside London will be at half the evaluator’s hourly rate.

9. If requested to travel within the UK, the evaluator will be entitled to charge for travelling (including business class air fares or 1^st class rail travel) and hotel expenses, which will be reimbursed by the parties within 14 days of an invoice being submitted to the parties’ solicitors.

10. Notwithstanding that the evaluator’s clerk may make an arrangement that the evaluator’s fee is paid in equal shares by each party, in default of payment each of the parties is jointly and severally liable to pay the evaluator’s fees and expenses.

11. The parties will not make use of or disclose to any other person any document prepared by the evaluator for the purposes of the Indication or in the course of the PFDR.

12. The evaluator shall not be liable to any party for, and no legal or other proceedings shall be brought against the evaluator in respect of, any act or omission arising out of, or in relation to, any matter in the PFDR.

13. The evaluator shall not be liable to any party for any loss, damage or expense whatsoever or howsoever arising as a result of, or in connection with, the PFDR, whether in contract, tort or otherwise including, but not limited to, any agreement the parties reach at or after the Hearing.

14. The evaluator shall neither be made a party to, nor shall she be compelled to become a witness in, nor be required to produce records, notes or any other material whatsoever in any legal or other proceedings arising out of or in relation to any matter in the PFDR, including but not limited to, proceedings to determine the factual issue as to whether the parties reached a concluded agreement at or after the PFDR.

15. If any party makes an application that is inconsistent with clauses 12, 13 and 14 above then that party will indemnify the evaluator in respect of any costs (including legal costs) incurred by the evaluator relating to any such application or consequent on any order made on it and shall reimburse the evaluator at the evaluator’s prevailing hourly rate plus VAT for any time spent considering, resisting, responding to or otherwise dealing with any such application or any order that a court or tribunal may make and / or taking advice in relation thereto. 

16. The parties and the parties’ legal representatives shall not engage in any written or oral communication with the evaluator directly in connection with the subject matter of the PFDR without copying the other party (in the case of written communication) or notifying the other party in advance (in the case of oral communication). All communications concerning routine and administrative matters in connection with the PFDR should be sent to the evaluator’s clerk. 

17. Statements, affidavits, experts’ reports, disclosed documents, submissions and any other documents shall normally be delivered to the evaluator’s clerk. Correspondence between the parties’ legal representatives and the evaluator shall normally be by email and must be copied to the other party’s legal representatives.

18. No correspondence (including emails and faxes) between the parties’ legal representatives shall be sent to the evaluator unless it pertains to a matter on which the evaluator is required to take some action.

19. All information provided to the evaluator in connection with the PFDR shall be confidential unless:
    
    1. the evaluator is required or permitted to disclose it by law (to include any duty she may owe under the Proceeds of Crime Act, 2002) or by any fiscal authority or regime, in which case (and to the extent the evaluator is permitted to do so) the evaluator will endeavour to give the parties as much notice of any required disclosure.
    2. the evaluator she is authorised in writing to disclose it by all parties.
    3. the information comes into the public domain without any breach of confidentiality on the evaluator’s part.
    4. the parties or either or any of them makes a complaint about the evaluator to a regulatory authority concerning the evaluator’s conduct of the PFDR, in which case the evaluator may disclose relevant case papers to that authority.

20. If any provision of this agreement is found to be invalid or unenforceable for any reason by a competent court or administrative body of competent jurisdiction, such invalidity or unenforceability shall not affect the other provisions of this agreement which will remain in full force and effect. If any provision of this agreement is found to be invalid or unenforceable if some part the provision was deleted, the provision in question shall apply with such deletions as may be necessary to make it valid or enforceable.

21. This agreement governs the evaluator’s rights and obligations and those of the parties towards her and each other. It confers no benefit upon any third party. The ability of third parties to enforce any rights under the Contracts (Rights of Third Parties) Act, 1999 is hereby excluded.

22. Either party may raise a complaint against the evaluator by following the complaints procedure set out on the website of chambers at www.qeb.co.uk/complaints-policy/
    
23. This agreement shall be governed by and construed in accordance with the laws of England. Any dispute arising under or out of this agreement shall be submitted to the exclusive jurisdiction of the High Court of Justice of England and Wales.