Bank of the Expert Witness
If you are contemplating offering lawyers end-of-case terms, what should you consider?
One of our arboricultural experts wrote to say that he is receiving ever more requests to withhold billing until the case in question is concluded. They usually come from law firms which are themselves working under a CFA (‘no-win, no-fee’ agreement). If you are contemplating agreeing to such requests for business reasons, there are a few issues worth considering.
The rules for experts working on a contingency fees basis used to be very clear: there was a complete ban. But the current position is ‘that it will be a rare case indeed’ when the court will be prepared to consent to an expert being instructed under such an agreement. It has always been permissible, though, for experts to agree terms that allow for payment at the end of the case.
We think that if litigants want to use us as a bank, they ought to pay for the privilege. But one also needs to be clear about what ‘the end of the case’ means. Indeed, it could be argued that until you have been paid, the case isn’t closed! You must also consider the creditworthiness of instructors. Leaving credit tails of 18 months and more opens you up to a much higher risk of someone defaulting on your invoice.
Our advice is as follows.
- Set up a contract that makes it clear the premium you will charge for lending your money, potentially offering a discount for earlier than expected settlement.
- Make sure your contract details what ‘end of the case’ means. You may conclude that, given you have no control over case conduct, you instead prefer to work on a defined timescale, say payment in 18 months. It is wisest, though, to invoice as work is completed and issue bills with defined deferment periods.
- Have a contractual clause that creates the right for you to claim your debt recovery costs. It is a sensible move, given that there is no statutory right to costs in small claims proceedings.
- Be quick to take up debt recovery measures should your already generous nature be abused.