Judicial guidance on weasel words
Do you agree with Chaucer's friar?
The friar in Chaucer’s The Summoner’s Tale says to the recalcitrant Thomas, a man not minded to make a donation to the friar:
‘You’d like to have our labour all for naught,
Yet God on high who all this world has wrought
Says that the workman’s worthy of his hire.’
If you agree with the friar, then you must believe that you, as an expert witness, are worthy of your fee. And it would be nice to think that those who instruct you are of the same belief. But these days many lawyers seek simply to pass on the responsibility of payment to someone else. A case in point arose in a debt recovery action taken on by Debt Collection for Expert Witnesses (see below).
After much toing and froing, the case was heard eventually in the county court this summer, sitting (thanks to an initiative launched by the new Justice Minister, Michael Gove, to use every nook and cranny of the court buildings he isn’t closing down) in Court 26 at the Royal Courts of Justice in The Strand.
The crux of the case was the following phrase in the letter of instruction to the expert:
‘We confirm that the Claimant will be responsible for your reasonable fees for this service’.
In other correspondence the instructing solicitor advised that ‘the family are very credible people’.
The expert undertook the instruction, completed the report and sent the solicitor a fee note for several thousand pounds. The solicitor referred the expert to the letter of instruction saying that he had made it clear that payment of the fees was nothing to do with him. The expert responded by saying he thought the words meant that the solicitor would get the fee from the lay client and pass it on. The solicitor went on to say he had no idea what a reasonable fee would be. When the solicitor’s client was brought into the discussion, it turned out she had only agreed to pay a fee limited to £500; no payment was ever made.
The first point to consider is what the word ‘reasonable’ meant in the context of the letter of instruction. Did it simply exclude unreasonable fees or was it a representation to the expert that the lay client was a reasonable person who would pay a reasonable fee note? After all, refusing to pay cannot be described as reasonable conduct. And if it was a representation, then, as matters turned out, was it negligent? The solicitor had met the client and family and had been in a far better position than the expert (i) to judge what sort of people they were, and (ii) to have some understanding of the family’s financial position.
The second point is whether the words used in the letter set up a contract between the expert and the lay client. The answer depends on whether, when writing the letter, the solicitor was acting as his lay client’s agent or on his (firm’s) behalf. Furthermore, when a solicitor employs a scheme whereby he takes no responsibility for either paying the expert himself or making enquiries as to whether monies are available to meet the expert’s fee note, is he in breach of a duty of care to the expert?
On The Strand
Dealing with all these issues engaged the parties in a 2-hour hearing. The final decision was that the solicitor’s client had liability to pay the expert’s fees; the solicitor had no liability.
There are clear lessons here for any expert who is invited to accept instructions from solicitors who intend their lay client to be the paymaster. As the judge observed, in such cases it is perhaps unseemly for the expert to contact the lay client ‘out of the blue’ demanding cash on account, but he thought that approach was the only safe course of action. The judge suggested that a more professional alternative may be for the solicitor to undertake the task of extracting funds so that monies were available in the client account to meet the expert’s fees. The judge conceded, though, that where the solicitor had made no enquiries as to what reasonable fees were likely to be, there were obvious practical problems to overcome!
Faced with a letter of instruction containing words to the effect that the expert’s paymaster will be the instructing solicitor’s lay client, what steps should a prudent expert take?
- Decide on a fee in advance for the work requested.
- Write to the instructing solicitor advising of the fee and declining instructions unless the solicitor obtains monies on account from the client. After all, with no knowledge of the financial means of the client, and the lack of any regulatory framework controlling the client’s behaviour, to do otherwise would run a significant risk that the expert will have laboured ‘all for naught’.
About Debt Collection for Expert Witnesses
Debt Collection for Expert Witnesses has been set up, and is run by, Barry Pamplin, the father of the editor of the UK Register of Expert Witnesses. It offers a no-nonsense way to deal with recalcitrant solicitor debtors for debts greater than £750 where you have tried the usual debt collection processes without success and don’t particularly want future instructions from the solicitor.
The debt collection fee is based on results – usually a flat 18.5% of fees recovered. If the collection is unsuccessful, you don’t pay a thing.
E-mail firstname.lastname@example.org if you wish to discuss any invoices you think might be suitable for this service.