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  Capping fees paid to experts from the legal aid fund – Summary

The Ministry of Justice has published a Consultation Paper that includes proposals to impose a cap on the fees that can be paid from the legal aid fund to expert witnesses

On 20 August 2009, the Ministry of Justice (MoJ) published its Consultation Paper CP 18/09 – Legal Aid: Funding Reforms – that includes proposals on expert fees.

Scope of the consultation
For our purposes, this consultation is focusing on the fees of expert witnesses paid out of the Legal Aid fund in both the civil and criminal justice systems. It runs from 20 August 2009 until 12 November 2009.

Understanding the issues
The Consultation Paper, which comes 5 years after the Legal Services Commission’s consultation The Use of Experts – Quality, price and procedure, proposes a major change to the current regime for paying expert witness fees. The UK Register of Expert Witnesses is preparing a number of resources to help you get to grips with the Consultation Paper, and to make it easy for you to respond. We will alert you to these resources as they become available.

Summary
The MoJ:

  • accepts that quality expert evidence is essential to the effective running of the civil and criminal justice systems
  • reports that many ‘providers’ (that’s probably MoJ-speak for lawyers) say selection of the right expert is critical to the outcome they can achieve for their clients
  • recognises that the expert witness community is a broad and disparate body and encompasses a range of motivations for undertaking forensic work
  • explains that the existing pressures that tend to restrict the supply of experts willing to undertake publicly funded work has pushed cost control behind more pressing concerns over quality and supply of experts.

But the MoJ says that the time has now come to start to implement cost controls in this difficult area. “As difficult as it appears to be, control in this area must begin to mirror the efforts that have been made to achieve value for money in all other areas of legal aid spend”.

The MoJ particularly notes that:

  • fee rates differ between criminal and civil cases
  • fee rates vary, for the same work, between experts
  • disbursement spend (which includes expert fees) in public family law cases has risen by 46% in the last 4 years
  • it plans to stop paying cancellation fees, to cap fees for travel time to £40/h and to cap mileage rates to 45p in civil legal aid contracts awarded from 2010.

The MoJ’s long-term aim is to reduce the spend on expert witness fees by 20% and to introduce fixed fees for experts undertaking publicly funded work. Its initial move in this direction is to cap expert witness fee rates, using the existing MoJ guidelines for determining officers as its baseline - notwithstanding that those guidelines are supposed to be updated annually but haven’t changed since 2003! The MoJ says: “Setting rates aims to increase transparency, ensure consistency and control the unsustainable rising costs of expert’s fees.” The proposed rates are shown in the table below.

Our initial observations on this approach include:

  • the separation of expert type appears arbitrary (Why does Chemist appear in the first group?)
  • the variation in rates between expert types appears arbitrary (Why are accountants, etc., capped at £490 per day in court when psychologists, etc., are capped at £500?)
  • in what world other than that occupied by the MoJ does a ‘full day’ contain between 2.5 and 5 hours?

 

Expert Type Work type Proposed Rate
General Medical (Accident and Emergency, Chemist, Dentist, General Medical Report, GP, Injury Report, Nurse, Paediatrician) Preparation (examination/report): £70–£100 per hour
Attendance at court (full day): £346–£500
Specialist Medical (Gynaecology, Obstetrics, Oncology, Orthopaedic, Radiology, Urology, Haematologist, Ophthalmology, Neurology, other specialist medical ) Preparation (examination/report): £70–£100 per hour
Attendance at court (full day): £346–£500
Pathologist Preparation (examination/report): £70–100 per hour
Attendance at court (full day): £346–£500
DNA Test   Up to £100 per hour or £385 per test (£350 in London)
Drug Testing   Up to £100 per hour (£180 fixed fee in London)
Age Determination Preparation (examination/report): Up to £100 per hour
Other Medical Preparation (examination/report): £70–100 per hour
Attendance at court (full day): £346–£500
Psychiatric Preparation (examination/report): £70–£100 per hour
Attendance at court (full day): £346–£500
Psychologist Preparation (examination/report): £70–£100 per hour
Attendance at court (full day): £346–£500
Forensic scientist (including questioned document examiner), accountant, surveyor, engineer, medical practitioner, architect, veterinary surgeon, meteorologist Preparation (examination/report): £47–£100 per hour
Attendance at court (full day): £226–£490
Fire (assessor) and/or explosives expert Preparation (examination/report): £50–£75 per hour
Attendance at court (full day): £255–£365
Fingerprint Preparation (examination/report): £47–£100 per hour
Attendance at court (full day): £153–£256
Enquiry Agent All work: Up to £26 per hour
Foreign Country Expert All work: Up to £80 per hour

 

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Issue 55
August 2009

Capping fees paid to experts from the legal aid fund – Summary
Capping fees paid to experts from the legal aid fund – Scale of the spend
Conference notices


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November 2017

A witness summons too far
Handling a potential conflict of interest
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