Capping fees paid to experts from the legal aid fund – Scale of the spend
Proposals to cap expert fees come from a body
that doesn't collect fee data!
The Ministry of Justice (MoJ) acknowledges that it and the Legal services Commission (LSC) are in a poor position to justify the specifics of the proposal to cap fees at the stated levels.
“Neither MoJ nor the LSC have a direct relationship with experts. They cannot be accessed through a small number of representative groups and without resorting to extensive data collection from legal aid providers the LSC has only limited data on expert costs. The LSC is currently carrying out a further data verification exercise but we are seeking views in this consultation about how effective the proposals set out above are in taking the first step to control costs.”
What is actually know? In 2007/08 the LSC spent £192m on disbursements, of which about two-thirds was for expert witness fees. Of this £128m, £21.4m was recovered, so the maximum spend on expert witness fees across the board appears to be in the region of £105m. This figure represents about 5% of the total legal aid budget. The MoJ aspires to reduce the spend on expert witness fees by 20%. So the MoJ is addressing in this proposal something like 1% of the total Legal Aid budget.
A poor starting point?
The MoJ asks the question: “Do you agree that the proposed hourly rates based on current guidelines are a reasonable starting point?” When the LSC ran its consultation back in 2004/05 we responded with:
“The LSC is hampered in its approach to expert fees because it does not currently gather data to enable it to know its annual spend on experts. Neither can it assess the differences there might be between the fees of experts working in the civil and criminal arenas, nor the various specialties.”
Perhaps a better starting point than imposing some apparently arbitrary caps would have been for the LSC, in the intervening 5 years, to have gathered the evidence it needs to make informed decisions about expert witness fees!
Access to Justice?
The main concern for anyone looking at this Consultation Paper should be the impact the proposal will have on the ability of the Legal Aid fund to provide Access to Justice to the most vulnerable in Society. Just as with the LSC 5 years ago, from such poor groundwork, the MoJ has arrived at proposals that carry with them a danger of reducing the pool, and overall quality, of experts willing to work in publicly funded cases. This negative effect is likely to be most acute for the Community Legal Service. Indeed, we predict a serious impact on supply and competition within the expert witness marketplace for civil cases if the, what Lord Auld described as, ‘meagre’ fee scales on offer in the criminal arena are imposed on expert witnesses in the civil arena.