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  Death by a thousand cuts

Having already cut expert witness fees from legal aid funds by 10% from arbitrarily low 'benchmark' levels, the MoJ now seeks a further cut of 20%

Between 9 April 2013 and 4 June 2013 the Ministry of Justice (MoJ) is running the latest in a series of ‘consultations’ on changes to legal aid – Transforming Legal Aid: Delivering a More Credible and Efficient System. Why the quote marks? For those who follow such things, many will have concluded long ago that this sort of exercise from the MoJ is not about reaching out to the citizenry to ask for input on how best to attain an end goal. Oh no, this is simply a rubber-stamping exercise for decisions that have already been taken. This lack of interest in what experts (and others) may think about the cost-cutting proposals is made clear on three counts.

1.The MoJ fails to ask the basic questions about need.

2. The MoJ is not seeking ideas about alternative ways to save money.

3. The MoJ is not asking whether its ‘proposed’ plans will work in practice.

As Barrister 999 says in his blog (see http://barrister999.wordpress.com/2013/04/16/legal-aid-some-thoughts/), this is the hangman asking the condemned as he steps onto the trapdoor not ‘Would you prefer it if I don’t pull this lever?’ but ‘Would Sir prefer a blue hood over his head, or maybe this nice yellow one?’ Barrister 999 gives a good, if bleak, summary of the major changes being proposed. Most are of peripheral interest to expert witnesses (see https://consult.justice.gov.uk/digital-communications/transforming-legal-aid for a summary), but the proposals in Chapter 7: Expert Fees in Civil, Family and Criminal Proceedings are of direct relevance to that diminishing breed of expert witness who still undertakes publicly funded work.

Further 20% cut to expert witness fees paid out of legal aid funds

Following the introduction of changes to the scope of legal aid through implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1 April 2013, the number of expert services funded by legal aid is expected to reduce sharply. To this decrease should be added the drop expected as a result of Family Justice Review reforms. And the MoJ now wants to consider whether the current fee levels for expert witnesses paid out of the legal aid budget represents value for money.

As you may recall, in 2010 the MoJ took initial steps to codify and reduce the level of fees paid to expert witnesses. The codified rates were based on ‘benchmark’ rates that had been developed by Legal Service Commission (LSC) caseworkers drawing on their experiences of the charges paid most typically for expert services, subject to a 10% reduction in line with the general 10% reduction applied to all fees payable in civil cases at that time.

At the same time, the MoJ made a commitment to monitor the effect of the new fees. You will be delighted to hear that the MoJ considers that ‘overall this has confirmed that the market has adjusted to the new codified hourly rates.’ One wonders who they asked!

When it introduced fee caps, the intention was that the MoJ would work with affected groups on the ongoing development of a more detailed scheme based on fixed and graduated fees and a limited number of hourly rates. This approach reflected the fact that the LSC ‘benchmarking’ did not include any analysis of the prices paid for similar services elsewhere. Apparently ‘this has proved difficult to achieve as the LSC, and now the Legal Aid Agency (LAA), does not contract directly with experts and therefore does not currently collect robust data on their use’.

The MoJ now tells us that this data gap is being addressed, with the introduction in February 2012 of new forms for applying for prior authority to exceed the specified rates for experts, and with planned improvements to the LAA’s case management systems at the end of 2013. Well about time!

Pending the collection of robust data on which to base a new fee scheme for expert witnesses paid out of the legal aid fund, the MoJ has explored comparative expert witness fee rates paid by the prosecution in criminal cases (under the Crown Prosecution Service’s Expert Witness Fee Scheme). It has concluded that there is ‘no sufficient justification for paying generally higher fees under the legal aid schemes’.

So the MoJ proposes (Proposal 7.10 of CP14/2013) to ‘reduce the current specified standard fees for all experts by 20%’. It does go on to remind readers that it would be possible for these rates to be exceeded in exceptional circumstances. Some crumb of comfort there then!

No concern for value for money

Having no data to assess the value that a particular expert witness report delivers the MoJ, and so being unable to understand what represents good value for money, the MoJ continues in its simple-minded approach. We already know that the 2011 fee caps (see Civil Legal Aid (Remuneration) Regulation 2013 and Criminal Legal Aid (Remuneration) Regulations 2013) make it uneconomic for NHS personnel to be released to undertake forensic work. How many others will conclude that they cannot continue to accept publicly funded work?

It appears that the MoJ has no interest in the quality of the expert evidence for which it pays, and is content with the potential outcome that its spend on expert opinion evidence will reduce because so few experts need to work at the paltry fee rates on offer. So much for Access to Justice.

How to respond

Transforming Legal Aid consultation events

  • Reading 7 May 2013
  • Newcastle 7 May 2013
  • Brighton 8 May 2013
  • Leeds 8 May 2013
  • Exeter 9 May 2013
  • Bristol 14 May 2013
  • Cambridge 14 May 2013
  • Cardiff 15 May 2013
  • Nottingham 15 May 2013
  • Birmingham 16 May 2013
  • London (Kensington Close) 16 May 2013
  • Liverpool 21 May 2013
  • Manchester 21 May 2013
  • London (Park Crescent) 23 May 2013

You can attend consultation events across England and Wales (running between 8 and 14 May, see box), or you can use the online consultation tool at https://consult.justice.gov.uk/digital-communications/transforming-legal-aid. Alternatively, send your response by 4 June 2013 to:

Annette Cowell
Ministry of Justice
102 Petty France
London, SW1H 9AJ

Tel: 020 3334 3555
Fax: 020 3334 4295
Email: legalaidreformmoj@justice.gsi.gov.uk

 

 

 

 

 

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Issue 77
May 2013

Death by a thousand cuts
Experts instructed by litigants in person
Expert fees and litigants in person


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