Expert fees and litigants in person
With the anticipated growth in the number of litigants in person, what should an expert witness be thinking about when it comes to fees?
Experts should bear in mind that one of the principal reasons that a litigant in person is unrepresented is likely to be that he or she is unable to afford the cost of a solicitor.
Guidance to solicitors issued by the Law Society dictates that, where the other party in litigation is unrepresented, solicitors must advise their client that, even if their client is successful and is awarded costs, there is the risk that the litigant in person may not be able to pay the costs. Solicitors must also advise their client that, where the other party is unrepresented, this could lengthen the proceedings and add to the client’s own costs and to the costs of the proceedings generally. Furthermore, a litigant in person can recover all costs if successful.
It must also be recognised that a litigant in person may have difficulty in meeting the expert’s fee. In addition, the time and expense to the expert may well be increased by the litigant in person’s lack of legal knowledge. While CPR 48.6(3)(a) permits the litigant in person, if successful, to recover expert fees as a disbursement from the other party, it is likely to be a long process.
Note that if the other party is also unrepresented, there is always the possibility that the expert?s fee will not be recovered at all! Paragraph 156 of Access to Justice for Litigants in Person anticipates that experts may, consequently, be somewhat reluctant to accept instructions from litigants in person. The Civil Justice Council’s working party offers the hopeful solution that, in some cases, experts might consider taking pro bono work. If not, then it acknowledges, somewhat grudgingly, that it is not unreasonable for experts to ask for payment to be made in advance.