Baker Tilly (A Firm) v Makar

A professional engagement to prepare an expert report for litigation is ordinarily limited to the report for the identified court or tribunal and any required evidence. It does not, without clear agreement, extend to an all-purpose report for wider regulatory or reputational objectives, even where topics overlap. Such an engagement will rarely be an entire contract. Settlement may bring it to an end under an implied term permitting termination on payment of reasonable fees incurred, subject to any cap. Work undertaken after settlement may constitute a fresh contract for advice or further assistance, but a report for general use is a different obligation and requires fresh agreement. An appellate court should be slow to disturb primary findings based on the trial judge’s assessment of witnesses.

Baker Tilly claimed fees from Mira Makar for forensic accounting work connected with her Employment Tribunal claim. The parties agreed on an expert report for the Tribunal and, if necessary, expert evidence. The claim settled shortly before the hearing. Baker Tilly sought payment, while Makar argued that the engagement covered a wider report for regulatory, reputational and other purposes and survived settlement.

His Honour Judge Seymour QC held that the parties had made staged agreements, that the Tribunal-report contract ended on settlement, and that Baker Tilly was entitled to fees. He also found that post-settlement communications created an agreement for further assistance, but not necessarily a report. The appeal concerned the scope and character of the Tribunal-report contract, the effect of settlement, and whether a later agreement required Baker Tilly to produce a report.

1. Appeal dismissed. The Court of Appeal upheld the conclusion that Baker Tilly was entitled to recover its fees, although Lord Justice Hughes’s reasoning differed in part from that of the trial judge.
2. The principal contract was to prepare a written independent expert report addressed to and produced to the Employment Tribunal, with evidence at the hearing if required. It was not an agreement to prepare an all-purpose report for Makar’s wider objectives, nor a report to be provided whether or not the Tribunal proceedings continued. Any overlap between the topics did not alter the contractual scope. A report for a tribunal would also differ in presentation and legal context from a report prepared for the client’s general use, including because the reporting accountants would have absolute privilege in the litigation context.
3. The contract was not an entire contract. A litigation expert-report engagement will very rarely have that character, since settlement is a common possibility and the parties do not ordinarily contemplate continued work after there is no tribunal to report to. The contract contained an implied term permitting the client to terminate the engagement on settlement, subject to liability for reasonable fees incurred up to termination. The agreed cap applied to the relevant work.
4. After settlement, the communications created an agreement for further assistance and advice. Baker Tilly’s attendance at the later meeting did not objectively amount to agreement to provide any report. A report for general use would have been a different obligation and could arise only from a fresh agreement, not from Makar’s unilateral instruction.
5. The finding that the parties agreed to await further financial figures and instructions was a primary finding based on the assessment of witnesses and contemporaneous notes. The appellate court was very slow to substitute its own view and was not satisfied that the finding was wrong.

1. Court of Appeal (Civil Division). Baker Tilly’s appeal was dismissed. The court upheld the result reached below, with partly different reasoning.
2. High Court, Queen’s Bench Division. His Honour Judge Seymour QC held that Baker Tilly was entitled to fees under staged contractual arrangements and rejected Makar’s wider case.