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  Big risks in MoJ plan to cap expert fees

If budgetary factors force the MoJ to adopt its fee capping proposals, it is anticipated that quality, competition and supply will all be adversely affected and reduce access to justice for the most vulnerable in Society.

As the Ministry of Justice consultation on capping expert witness fees closed (12 November 2009), the UK Register of Expert Witnesses submission warns of potentially serious consequences if the proposals are not modified.

Introduction

The response of the UK Register of Expert Witnesses to Part 3 of the Ministry of Justice (MoJ) Consultation Paper 18/09 – Legal Aid: Funding Reforms – issued on 20 August 2009 draws together 1,076 contributions from over 660 expert witnesses listed in the UK Register of Expert Witnesses.

Lack of evidence

The MoJ proposals – based, as they are, on guesswork – fail to deliver a convincing analysis of the current position. From such poor groundwork, the MoJ has arrived at proposals that carry with them a significant danger of reducing the pool, and overall quality, of experts willing to work in publicly funded cases. This is a view supported by 98% of our expert witness contributors.

We provide evidence from our own survey work that, for example, the expert witness fees of medical consultants have increased by just 9% above the rate of inflation since 1999. Furthermore, based on our data, fee rate caps at the level proposed would mean that most expert witnesses would see a fall in their fee rate; medical expert witnesses, the largest group in our survey, would see on average their fee rates halved.

LSC operates a monopoly

Some 94% of our expert witness contributors agree that the disparity between the rates paid to expert witnesses in the civil and crime arenas arises from the fact that the LSC is a monopoly purchaser in the publicly funded arena. As such, it currently achieves a discount on its purchase of expert witness services of around 16% compared with the rates set by the free market operating in the civil arena.

Expert witnesses are not the same as lawyers

The MoJ proposals are based on the flawed assumption that expert witnesses are equivalent to the solicitors and barristers involved in publicly funded cases. It is implicit in these proposals that the MoJ thinks expert witnesses will react in the same way as the lawyers have to the unsophisticated application of arbitrary banding and capping of fee rates. We think they will not, for they need not, and 96% of our expert witness contributors agree with us.

Lawyers are part of the legal system, but expert witnesses are simply guests in it. Whilst the MoJ pays lip-service to the fact that expert witnesses have a vital role as guests in the system, these proposals take no account of the reality of the disruption that forensic work can cause to professional people?s working lives.

Inflationary pressures and ways to overcome them

We identify a number of inflationary pressures on expert witness fee rates, including the effect of the CPR, post-Meadow effects, more rigorous quality assurance, endemic late payment and sanctions against expert witnesses. The MoJ proposals do not address any of these issues.

We offer suggestions as to how the MoJ could make changes to the litigation process, such as staged instructions, setting new brink points and involving experts earlier in the assessment of cases. These changes could foreseeably save far more money than could the current proposals, and might even release some of the pressure on the supply of expert witnesses.

MoJ runs the danger of creating the expert witness as a profession in its own right

The MoJ complains that the expert witness community is hard to reach because, unlike lawyers, experts do not have a small number of representative bodies. This is because, for good reasons, we do not have a professional class of ?the expert witness? in this country. The courts need experienced (and often busy) professionals to visit the legal system to assist as necessary on technical matters. If implemented, these proposals would run a very great risk of restricting the supply of experts to those who, for whatever reason, have to accept the ?meagre? rates on offer ? experts who presumably couldn?t earn more elsewhere. Over 96% of our expert witness respondents agree with us that this would be a major step in the creation of the professional class of expert witness ? something we should all be working to prevent.

Conclusion

Ultimately, we conclude that the MoJ has not identified the inflationary drivers on expert witness fees. The MoJ has failed to produce cost-saving proposals that are sufficiently targeted, or neutral in terms of supply and competition, as to be capable of being broadly accepted by expert witnesses. The nature of the proposals leaves little doubt that the driving force behind the consultation paper is financial. If these budgetary factors force the MoJ to adopt these proposals, we anticipate that quality, competition and supply will all be adversely affected and will reduce access to justice for the most vulnerable in Society.

Further information

You can read the full UK Register of Expert Witnesses submission by visiting http://www.jspubs.com/Surveys/MoJ0908.

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Issue 57
November 2009

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