Your Witness • Issue 12 • July 1998

Editorial
Fees charged by medical experts
The latest on legal aid reform
Pre-action protocols
Small claims concession
Allowances in criminal cases
Society of Expert Witnesses conference report
Letters to the Editor

Introduction
In this issue we continue the analysis of our recent fees survey with a look at the charges made by medical experts. Legal aid reform is again in the news, as is a proposed change to the Green Form scheme that may have wider ramifications for experts. One of the products of the Woolf review was pre-action protocols, and preparations for their implementation are discussed. A recent concession in the small claims procedure for housing disrepair cases is also reported. Of interest to all expert witnesses are the newly revised rates for allowances in criminal cases, which we have listed on page 6. This issue also contains a report from the recent Spring Conference of the Society of Expert Witnesses, as well as some thought-provoking correspondence.

New edition
Since the last issue of Your Witness the new 11th edition of the Register has been published. The new edition, listing more expert witnesses than ever before, was distributed in May. Over 3,000 copies were circulated free of charge to the top UK solicitor practices, again making the Register the most widely used resource of its kind.

Web Register launch
This May also saw the launch of our new Web Register. This internet-based service is available free to anyone with a web browser. It provides users with the ability to interrogate the Register on-line by specifying expertise and geographical search criteria.

This new on-line service contains complete details of only those experts who expressed their wish to be included – just under 1,000 in total. Surf to the Using experts... section of the Register web site at www.jspubs.com to see the Web Register in action.

If you did not opt for inclusion when you returned your draft entry but would now like your expertise added to the on-line service, please contact Kate Porter on (01638) 561590 and she will arrange for your details to be uploaded. (NB To be included on the Web Register you do not need a web site of your own.)

Butterworths PI Direct
This autumn Butterworths, the UK’s leading legal publisher, is launching an exciting new product, PI Direct. It is being marketed as an electronic one-stop shop for larger solicitor practices specialising in personal injury litigation. Covering quantum, legislation and issues of relevance to the busy personal injury practitioner, the service is expected to attract subscriptions from many of the top legal firms.

We are pleased to announce that the Register will be accessible through the new PI Direct service. Its inclusion will offer yet another route for your details to find their way onto the desks of potential instructing solicitors. And, of course, there is no cost to you for this enhanced exposure.

Butterworths has ensured that the PI Direct service will only be accessible to subscribing legal firms, not to members of the public or to companies whose only goal is to make new marketing contacts. We feel that inclusion in PI Direct will be a very useful adjunct to the other services offered by the UK Register of Expert Witnesses.

As this new venture involves a third-party company, even one with the impressive pedigree of Butterworths, it is only proper that you are given the chance to opt out. If you do not wish to be included in PI Direct please let us know in writing before the end of July.

Expert witnesses and contingent fees
The widening of the scope of conditional fee agreements (CFA) has been much debated recently. Many commentators are quite pessimistic about the impact that CFAs will have on the legal profession. However, the impact on expert witnesses should be limited so long as the common misconception amongst lawyers – that experts will join contingent payment arrangements – can be corrected.

It was interesting to note, at the recent Society of Expert Witnesses conference, that those speakers drawn from the legal world clearly assumed that experts would become integral members of the legal ‘team’ and that it would be only natural for them to work under contingent payment terms. The view of the audience, the Law Society and the Society of Expert Witnesses was that for experts to work under contingent payment terms was not acceptable. Indeed the Law Society’s own Guide to the Professional Conduct of Solicitors (21:11) states ‘A solicitor must not make or offer to make payment to a witness contingent upon the nature of the evidence given or upon the outcome of the case.’

The ethical basis for this standpoint is clear. It would be difficult for experts to prevent knowledge of such arrangements from fatally wounding their claim to impartiality.

The commercial position is possibly just as important to many experts. The proposal seems to be that experts agree to place their own fee at risk, with no reward for taking such a risk and with no control over the conduct of the action. Why would anyone agree to that?

Chris Pamplin

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Fees charged by medical experts
In this second report on the fees survey we conducted last September we shall be taking a closer look at the information provided by medical experts.

It will be recalled that for the purposes of the initial report (Your Witness 11) we grouped respondents by profession into eight categories, of which the largest was medicine. Of the replies we received, 30% were from medical doctors of one kind or another. Furthermore, our preliminary analysis of the survey data showed that medics came top of the league in a number of respects: the quantity of reports they produced for litigation purposes, the hourly rates they charged for writing these reports and the fees they charged for giving expert evidence in court.

All this, though, is of little consequence to the individual doctor who might be wondering whether he or she is charging too little, or too much, for acting as an expert witness. Medicine encompasses too many specialities for across-the-board generalisations to be of much help in that respect. On the other hand, the amount of data we have at our disposal is too limited to permit a more detailed and meaningful analysis by discipline and sub-discipline – except, perhaps, for orthopaedic surgery.

A more promising approach, simply because it enables conclusions to be drawn from quite sizeable chunks of data, is to distinguish specialists from generalists (as suggested by Professor Cairns Aitken in his letter on page 8 of this issue), and to classify the specialists as surgeons, physicians or psychiatrists. The latter course may offend purists, but all but a handful of the 169 medical experts who took part in the 1997 fees survey can be readily categorised in this manner. This still leaves one of the groups, that of psychiatrists, with too small a body of data on which to base firm conclusions. Moreover, because the category of general practitioners includes dentists and police surgeons, theirs is too disparate a group to sustain any further analysis. Even so, proceeding along these lines enables us to demonstrate a number of features which are apparent enough from the raw data but remain hidden in the initial analysis we reported in Your Witness 11.

Workload
One of the things asked for in our recent questionnaire was an estimate of the percentage of the respondent’s workload taken up by expert witness duties, and for the medics who took part in the fees survey it averaged out at 34%. This suggests that the answers the respondents were providing to the other questions asked were representative of doctors with a substantial involvement in expert witness work. All the same, it is clear from their replies that some specialists were more heavily committed to it than others, and none more so than orthopaedic surgeons. It is tempting to speculate why this should be. Is it, perhaps, that orthopaedic surgeons are so often involved in providing reports on injuries sustained in road traffic accidents? Whatever the explanation, it will be apparent from Table 1 that those orthopaedic surgeons who completed our questionnaire are kept exceptionally busy with expert witness work and produce, on average, between two and three times as many expert reports in a year as respondents in other medical disciplines.

Table 1. Analysis of workload for medical experts

  Number of replies received Average workload (%) Average number of reports per year Average number of court appearances per year
Orthopaedic surgeons 23 63 317 3.8
Other surgeons 51 29 111 1.9
Consultant physicians 54 25 76 1.7
Psychiatrists 16 42 154 8.2
All specialist respondents 144 35 135 2.8
General practitioners1 25 27 51 6.4
All medical experts1 169 34 123 3.3

1Including eight dentists.

Charging rates
The information we received from orthopaedic surgeons was notable in two other respects. First, in answer to the questions about their charges, all 23 of them quoted an amount per report, whereas only eight cited an hourly rate for report writing. This is in complete contrast to the replies we received from experts in the 30 or so other medical disciplines represented in the survey, and it suggests that so far only orthopaedic surgeons have found ways of standardising the fees they charge for writing reports for litigation purposes. If so, they will be in a better position than most to adapt to the fixed-cost regime that many foresee to be the outcome of the Government’s plans for the reform of legal aid.

The other respect in which orthopaedic surgeons differ is that they charge, on average, appreciably less for their reports, as Table 2 demonstrates. On the other hand, their fees for giving evidence in court are among the highest for any discipline.

Table 2. Charging rates for medical experts

  Number of replies received Charging rate for report writing (average per hour) Charging rate for report writing (average per report) Charging rate for full day court appearances
Orthopaedic surgeons 23 115 255 953
Other surgeons 51 123 432 918
Consultant physicians 54 122 479 841
Psychiatrists 16 133 570 902
All specialist respondents 144 123 417 894
General practitioners1 25 114 408 756
All medical experts1 169 122 416 874

1Including eight dentists.

From this table, too, it would appear that psychiatrists charge both the highest hourly rates for writing expert reports and the highest fees per report; but as only 16 of them took part in the fees survey, such findings belong to the realm of intriguing possibility rather than hard fact.

Time spent preparing reports
Our data on orthopaedic surgeons suggest another, distinctly speculative, comparison. Table 2 shows that those of them who specified an hourly rate for report writing charged on average 115 per hour, whereas for the whole group the average charge per report worked out at 255. Does this show that orthopaedic surgeons reckon on taking a little over two hours to prepare a report? Not necessarily, of course, because only eight orthopaedic surgeons provided details of both kinds, and any extrapolation would have to be limited to the data for these eight individuals.

If we re-calculate the averages on this basis we obtain the results summarised in Table 3, and these would certainly seem to suggest that it takes some orthopaedic surgeons, at least, much less time to examine patients and prepare reports on their findings than is the case for many, perhaps most, medical expert witnesses. However, as we stressed at the beginning of this article, the amount of data is too small to justify drawing any firm conclusion on the point.

Table 3. Time spent preparing reports

  Number of
replies analysed1
Charging rate for report writing (average per hour)1 Charging rate for report writing (average per report)1 Notional average amount of time spent on a report1
Orthopaedic surgeons 8 115 198 1.7 hours
Other surgeons 27 118 490 4.1 hours
Consultant physicians 19 124 483 3.9 hours
Psychiatrists 11 138 600 4.3 hours
All medical experts2 79 120 472 3.9 hours

1Of/by experts stating charges both by the hour and per report.
2Including general practitioners.

Cancellation fees
In our preliminary report we noted that more than 60% of the expert witnesses who assisted in the 1997 fees survey were making a charge when hearings at which they were due to give evidence were cancelled at short notice. Among medical experts, 78% levied cancellation charges, and 92% of surgeons did so. No doubt this reflects the particular difficulty surgeons have in rescheduling their work when they suddenly find that they are no longer required to give evidence in court. It may also explain why surgeons tend to charge a higher proportion of their normal fees than other specialists do on being given the same amount of notice. Table 4 provides a summary of the data we have collected on cancellation fees charged by these two groups. It highlights yet again the need for all expert witnesses to consider including such charges in their standard terms of engagement – and, having taken that decision, to keep the amounts they levy under regular review.

Table 4. Charges for cancelled hearings

Surgeons (sample = 74)

Amount charged Notice of <24 hours Notice of 1–7 days Notice of 7–14 days Notice of 14–28 days
Full fee 49% 16% 0% 0%
75% of fee 11% 7% 4% 1%
50% of fee 28% 38% 22% 4%
25% of fee 4% 16% 12% 11%
No charge 8% 23% 62% 84%

Other specialists (i.e. psychiatrists and consultant physicians) (sample = 70)

Amount charged Notice of <24 hours Notice of 1–7 days Notice of 7–14 days Notice of 14–28 days
Full fee 39% 9% 0% 0%
75% of fee 10% 6% 3% 0%
50% of fee 17% 26% 7% 3%
25% of fee 9% 16% 19% 7%
No charge 26% 44% 71% 90%

Thank you

We would like to thank everyone who took part in the 1997 fees survey. We know from our postbag that the survey results are of interest to the whole expert witness community.

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The latest on legal aid reform

Pressing on regardless
The Lord Chancellor’s Department published its long-awaited consultation paper on the reform of legal aid barely a fortnight before Your Witness 11 went to press. Since then, other commentators have subjected it to scrutiny, and most of them, it seems, share the reservations we expressed in that issue.

The consultation paper is entitled ‘Widening Access to Justice with Conditional Fees’, but this, of course, is not really what it is about. The Lord Chancellor’s overriding objective is to save money by cutting back on a public service. And while there is general relief that he should be holding off implementing all of his proposals at once, there is dismay, too, that he should be pressing ahead with plans to withdraw legal aid from personal injury cases whose costs do not exceed 100,000. As several writers have pointed out, such cases account for only a tiny part of the legal aid budget (at 34 million last year, less than 2.5%), yet the claimants are often on income support and among the least able, therefore, to meet the up-front cost of bringing actions under conditional fee agreements (CFAs).

CFAs have been permitted for personal injury cases since July 1995, and it has been the repeated claim of the present Government that they have worked well. The justification for that claim seems somewhat tenuous, though. It stems from a report into a small sample of personal injury cases, 197 in all, which was published last September by the Policy Studies Institute (PSI). Early on the report states: ‘Many of the potential problems identified before conditional fees were introduced seem to have been successfully addressed’, and it is this comment which Lord Irvine and his junior colleague in the House of Commons have quoted repeatedly in support of the Government’s plans. Yet, as Lord Ackner pointed out in a House of Lords’ debate on legal aid, the very next sentence of the report reads, ‘There are still two areas of difficulty, and these are the two most crucial elements to the success of the scheme: the estimation of risk and the calculation of the uplift.’ In failing to mention so important a reservation, the former Law Lord accused Lord Irvine of being distinctly economical with the truth.

If there is a common theme of the published responses to the consultation paper it is that of the need for more research before embarking on the large-scale replacement of civil legal aid with CFAs. It would seem, though, that the Lord Chancellor is determined to press ahead with his plans whatever happens. In the very week in which the consultation period ended, his Department announced that the necessary secondary legislation would be laid before Parliament before the summer recess, with implementation scheduled for October.

Green Form shock
April was altogether a bad month for legal aid practitioners, for it also saw the publication of proposals for contracting the ‘Green Form’ scheme for civil cases. Even though the scope of the scheme is set to shrink as aid is withdrawn from more and more categories of money claim, it will continue to cover advice and assistance in such areas as family law, housing, debt, employment and consumer rights – at an annual cost to the taxpayer of around 130 million.

The Legal Aid Board’s consultation document proposes that from January 2000 the funds for the scheme will be allocated on a regional basis and made available solely through solicitor firms and advice agencies that have been franchised by the Board. Furthermore, they will be required to work to fixed-price contracts, which – as the Board itself advises – will require them to make ‘commercial decisions’ as to whether they should provide the service at all. It seems fairly certain that fewer of them will, at least in the area of family law.

In itself, the ‘Green Form’ scheme has little bearing on the work of expert witnesses. The significance these proposals have for experts is that they are likely to provide the model for the future contracting of criminal legal aid and what remains of certificated civil legal aid. One outcome of that is certain: there will be fewer solicitor firms handling legal aid cases. It can be only a matter of time, too, before the Board’s fixed-price regime begins to affect negotiations between solicitors and experts over the fees the latter may charge.

If all this were not enough, the Board has since revealed its plans for the future handling of medical negligence claims. It will be recalled that in March the Government announced that it would not, after all, be withdrawing legal aid from such cases – at least for the time being. However, it also stipulated that in the meantime only those solicitor firms specialising in medical negligence claims should be allowed to conduct them on legal aid. The Board proposes to implement this instruction by restricting the availability of legal aid to the 90 or so firms with solicitors on the medical negligence panels of either the Law Society or the Association for Victims of Medical Accidents (AVMA).

Although AVMA has welcomed this move, both the Association of Personal Injury Lawyers and the Law Society are much less happy about it. The latter points out that last year some 11,500 legal aid certificates were issued for medical negligence cases and doubts whether 90 firms could possibly handle that many satisfactorily. Once again, it looks as though it is the client’s access to justice that will be hardest hit by these proposals – with knock-on effects for those experts who regularly provide evidence in such cases.

John Lord

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Pre-action protocols
The turmoil caused by legal aid reform has diverted attention away from the changes in civil procedure recommended in the Woolf Report. Although it is not now expected that these can be implemented before April 1999, the preparatory work continues apace.

As part of his drive to secure greater openness between parties, as well as to encourage the wider use of single experts, Lord Woolf recommended the development of pre-action protocols in certain areas, non-compliance with which might result in the court imposing penalties. These protocols are due to be published shortly, but in a recent article in the New Law Journal District Judge Stephen Gold gave a foretaste of the one devised for personal injury cases. Paragraphs 2.11–2.13 of the draft protocol relate to expert evidence, and they are, to say the least, disquieting:

‘2.11 Before any prospective party (the first party) instructs an expert he should give the other (second) party a list of the name(s) of one or more experts in the relevant specialty whom he considers are suitable to instruct.

‘2.12 Within 14 days the second party may indicate an objection to one or more of such experts. The first party should then instruct a mutually acceptable expert.

‘2.13 If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party has acted unreasonably.’

Just how procedural requirements such as these will mesh with the ever-widening use of conditional fee agreements (CFAs) we cannot begin to fathom. Before entering into a CFA a solicitor will want to establish the prospects for winning the case, and often that will mean getting an expert to provide a preliminary report. Under the draft protocol, though, it seems that the solicitor may find it necessary to instruct a different expert to prepare a joint report for court. And if that were not enough, the solicitor might then find that the cost of the preliminary report would not be recoverable from the other party. All the more reason, then, for its author to insist that payment of fees is not subject to taxation!

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Small claims concession
As readers will know, one of the measures announced by Lord Irvine at the Law Society Conference last October was a further widening of the scope of the small claims procedure. Until 4 years ago it was only claims for 1,000 or less that were automatically dealt with by this means. Then in January 1995 the ceiling figure was raised to 3,000 for all except personal injury cases, and now it is proposed to raise it to 5,000. The effect of this further change will be to bring around 90% of county court cases within the scope of the procedure.

The procedure has many merits, not least in providing individuals and small businesses with a convenient, inexpensive and relatively speedy means of settling everyday disputes. Despite that, it can hardly be said to be equally suited for dealing with all categories of money claim. Some disputes involve issues of such complexity as to demand legal argument in open trial. Others again require expert evidence, the cost of which may far exceed the 200 which, in a small claims action, is the most that can be recovered from the losing party in respect of experts’ fees. The last Government accepted this to be true for most personal injury cases, which is why the limit for them was held at 1,000 when the ceiling for all others was raised to 3,000. There is now growing recognition that similar considerations may apply to other categories of claim.

Housing law, for example, is a good deal more intricate than personal injury law. Apart from any facts that may be in dispute, housing cases frequently involve pleading different causes of action under different statutory provisions. It may also be necessary to apply for injunctions or orders for specific performance to secure claimants their rights. It is altogether unreasonable to expect them to be able to do all this on their own, even supposing they have not already been deterred from pursuing their case by the prospect of having to confront their landlord at the hearing.

Disrepair cases pose particular problems, in that they generally require expert evidence on issues of causation, damages and the works needed to put matters right. Moreover, it will often be the case that such evidence will be needed for several distinct items of disrepair. Yet all too often the claimants will be from sections of the community least well able to afford experts’ fees.

The Lord Chancellor has now announced his intention to place disrepair cases on the same footing as personal injury cases, i.e. they are to be referred automatically to the small claims procedure only if the amount claimed is 1,000 or less. In effect, this marks a return to the situation which obtained before 1996, when most such cases were tried in open court and the claimants were legally represented. Moreover, since housing is one of the few categories of civil litigation specifically excepted from the Government’s plans for the withdrawal of legal aid, it should guarantee some experts at least a continuing source of legal aid work for years to come.

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Allowances in criminal cases
The Lord Chancellor’s Department (LCD) has revised the allowances payable to witnesses giving evidence in magistrates’ and crown courts. The allowances were last changed 9 months ago, after a 3-month delay caused by the General Election, and it is at least good news that the normal cycle of revision has been resumed. Sadly, though, the Labour Government is proving just as mean as its predecessor in the rates it is prepared to pay for expert evidence in criminal cases.

The allowances for travel to and from court are unchanged, despite Budget increases in petrol duty. The overnight allowance is also unaltered, at 54.55 (or 59.90 if the court is within 5 miles of Charing Cross), both rates having remained the same since 1991. There is, however, some improvement to report on fee rates.

Under the regulations governing these matters, it is for the determining officer (usually the Clerk of the Court) to decide how much experts should be paid for their services. The exercise of their discretion is circumscribed, though, by official guidelines that specify rate bands for different categories of expert (see table). Although the LCD would claim that in issuing these guidelines it is merely providing points of reference, it would be highly unusual for a determining officer to depart from them.

Regulation 20: Schedule of rates from 1 May 1998
  Preparation time (per hour) Attendance at court (per day)
Consultant medical practitioner, psychiatrist, pathologist 55–80 274–395
Fire assessor or explosives expert 44–64 221–316
Forensic scientist (including questioned document examiner), surveyor, accountant, engineer, medical practitioner, architect, veterinary surgeon, meteorologist 37–79 179–389
Fingerprint expert 27–44 132–221

This year the upper figures for preparation time have gone up by 2 per hour (1 for fingerprint experts), while those for a day in court have been increased by between 6 and 11. The average increase works out at 2.7%. However, it is only when one compares the LCD’s top rates with the general level of fees charged by expert witnesses in civil cases (see Your Witness 11) that one can appreciate just how unrealistic its rates are. It is small wonder that many experts steer well clear of having any involvement in criminal cases.

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Society of Expert Witnesses conference report
The subject of the Society’s Spring Conference in Cambridge was ‘The Changing Face of Litigation’ and it featured speakers on legal aid reform, conditional fee agreements (CFAs), ‘after-the-event’ insurance and alternative dispute resolution.

Several key issues emerged from the prepared addresses, the question and answer sessions which followed them, and the open discussions.

• The provision of legal aid looks set to become a contract-only service provided by a limited number of firms franchised for the purpose by the Legal Aid Board. The contracts will specify fixed fees for the lawyers involved, and experts instructed in such cases may well come under pressure to accept a similar regime for their fees.

• Although the first two speakers, a solicitor and a barrister, thought it inevitable that in CFA cases experts would have to accept that payment of their fees was also contingent on the outcome of the case, members of the audience and the Law Society’s representative were united in their opposition to any such development. This was entirely in accord with the Society’s own stated position on contingent arrangements for experts.

• Experts can expect to become increasingly involved in the risk assessments that solicitors will have to undertake before they enter into conditional fee agreements. However, in this essentially advisory role, experts should be aware that they will not benefit from the immunity from suit that protects them when acting as expert witnesses.

• ‘After-the-event’ insurance is currently available to finance only a limited range of personal injury cases, in effect those most likely to succeed. Solicitors will have to get much better at assessing risk before insurers can extend the system to cover less attractive categories of work.

• Alternative dispute resolution is increasing in popularity and offers many opportunities for expert involvement.

The Society’s next conference is to take place in Derby on 30 October and will focus on practical issues of expert witness work. For more information about the Society of Expert Witnesses or the conference please contact Vanessa Lumpkin on the Society’s local rate helpline (0345) 023014 or write to her at PO 345, Newmarket, CB8 7TU.

A full report of this conference can be found in the Factsheet section of our web site at www.jspubs.com, or in Factsheet 26 on our faxback service at (01638) 565809.

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Letters to the Editor

Kept experts
Dr J M Bird BSc MB ChB FRCPsych writes:

I have recently received a letter from a large firm of personal injury solicitors asking if I would care to join its ‘experts panel’. This firm notes that it is their policy, wherever possible, to instruct only experts who are members of the panel. In return for this ‘preferential status’ this firm of solicitors asks the expert to wait for settlement of fees ‘to either case conclusion, or 2 years from the date of invoice’.

I, for one, shall refuse to join this panel of kept experts and I would urge all other experts to shun this and similar attempts to tie an expert to a particular firm of solicitors.

First, and perhaps most importantly, I consider that the expert in a scheme of this kind must have a vested interest in writing a report which allows the case to settle quickly; this may well encourage an expert to be biased in his or her opinion. Secondly, it seems to me most unreasonable to expect anybody to wait for 2 years to be paid for a job of work, especially when the firm of solicitors could actually obtain payment at a much earlier stage, in a number of cases could even obtain payment before the expert’s report is available.

I regard this approach as a somewhat ‘bullying’ one from a large and commercial firm of solicitors and feel that experts everywhere should refuse to be a party to this unreasonable behaviour.

However, I would be most interested to hear the views of other experts as I believe that a number of firms of solicitors are attempting to behave in this fashion.

Comment: We have reason to believe that several solicitor firms may be setting up panels of expert witnesses who are willing to accept payment terms along the lines of those offered to Dr Bird. Nor is it surprising that firms specialising in personal injury litigation should be acting in this way. With the imminent withdrawal of legal aid from all but the most expensive of personal injury cases and its replacement by conditional fee agreements, firms face the prospect of having to fund quite considerable sums, including insurance premiums, court fees and other disbursements, chief among which will be the fees of expert witnesses.

In some instances, no doubt, clients will have the necessary resources or insurance cover to meet the up-front costs of their personal injury claims. In others, it may be possible to fund them through bank loans repayable once the cases are concluded. On present indications, though, it seems that solicitors are likely to have to shoulder that financial burden themselves for the bulk of the claims they handle on behalf of clients who are currently eligible for legal aid. Research commissioned by the Law Society suggests that 3 years after the withdrawal of legal aid even a medium-sized firm could be requiring as much as 450,000 a year in additional funding if it is to continue to handle significant amounts of personal injury work. Ultimately, of course, solicitor firms can expect to recover most of these up-front costs from the losing parties, and the success fees to which they will be entitled should more than compensate them for the occasional losses they incur and the interest due on their loans. In the short term, though, firms specialising in this area are in for a hard time.

It is little wonder, then, that some of these firms should be seeking to defer for as long as possible the payments they will be due to make to expert witnesses. However, that does not make it right, or wise, for them to do so, for the reasons given by Dr Bird and enjoined by the Law Society in its Guide to the Professional Conduct of Solicitors (chapter 21 clause 11).

It would seem to us an obvious ploy for cross-examining counsel to impugn an expert’s impartiality on the grounds that the witness has a vested interest in securing a speedy outcome of the case. Indeed, one High Court judge has indicated that if counsel fails to question the basis on which expert witnesses are being paid in the cases he tries he will be doing so himself.

The Society of Expert Witnesses has advised its members against joining any panel set up by a solicitor firm which requires acceptance by them of deferred payment of their fees. Quite apart from the ethical issues this entails and the financial inconvenience, there is the increased risk that the firm may eventually default altogether. We would be glad, though, to have the views of other readers who have had approaches of the kind reported by Dr Bird.

Preliminary reports
Mr B D Wheeler MIMI MIAEA MFIEA writes from London:

I have read with interest your correspondence in issue 11 of Your Witness regarding conditional fee agreements. My particular concern is with regard to preliminary advice.

It is likely that the requirement for preliminary advice will only be on those occasions where the likelihood of success is marginal. In order for an expert to provide accurate preliminary advice on those occasions, he will need to carry out all or nearly all of the investigative work that would be required if he were to prepare a report for use in litigation. He also carries the increased burden of the risk of being sued if his advice is negligent, which does not occur with a report for litigation. Moreover, if a law suit is instigated, it is likely to include all of the solicitor’s costs as well, since those would not otherwise have been incurred if the preliminary advice had been more accurate. Yet it is likely that the expert will be expected to perform this work on a free of charge basis if the case does not proceed. For these reasons, I would not wish to enter into any agreement to offer preliminary advice on a free of charge basis.

At the present time, I generally find that I am requested to provide an assessment of the cost of my fee for providing a report, and if this is accepted I am then instructed to carry out the work. Where a client does not hold a legal aid certificate it is normal for my instructing solicitor to obtain funds from the client before instructing me. I wonder would it be possible for a solicitor who has entered into a conditional fee agreement with his client to do so on the basis that he will obtain funds from the client to accommodate an expert’s investigation and report to assess the potential success of the client’s claim. In this way the solicitor would not have to fund the report himself, the client would be able to reclaim his costs if he were successful, and the amount of money the client would be putting at risk would still be far less than the full cost of funding a county court hearing.

Comment: The ethical difficulty that experts face in accepting instructions to give evidence on a ‘no-win, no-fee’ basis is that it opens them to the charge of bias. To have a financial stake in the outcome of litigation compromises the independence of expert witnesses vis--vis the court.

Such considerations do not apply to reports required solely for the information of a client’s lawyers. On the other hand, as Mr Wheeler points out, their preparation will often entail as much work as would be needed for a report that is to be used in court. Given that preliminary reports also carry the risk of their authors being sued should their assessments prove negligent, he makes a cogent argument for not providing them on a ‘no-win, no-fee’ basis.

On the point Mr Wheeler raises in the final paragraph of his letter, there is nothing to prevent the parties to a conditional fee agreement arranging that the client should foot the bill for any reports that may be required, or for other disbursements, such as court fees and insurance premiums. Indeed, this has been the usual arrangement up till now. As indicated in our comment on Dr Bird’s letter, the crunch will come when legal aid is no longer available to defray these up-front costs for clients who cannot afford to meet them themselves.

Regional variations in charging rates
Professor Cairns Aitken CBE MBChB MD FRCP(Ed) FRCPsych DSc(Hon) writes from Edinburgh:

I have enjoyed reading Your Witness and congratulate you on its quality. I was particularly interested in your report of the ‘Fees Survey 1997’, and write to suggest a particular analysis of the data.

I was surprised at the ‘average hourly rate for reports’ in medicine to be 124. I was told by a friend in England that he charged 175, but I was told by a solicitor in Scotland that requests would drop off if the charge was much more than 100. It would be helpful if you could do a regional analysis – I suspect the amount will be higher in the southeast and lessen northwards. It would also be helpful if you could distinguish between consultants (specialists) and GPs (by definition generalists). I hope that the 166 replies are distributed so that a meaningful analysis is possible, perhaps even an analysis of variance!

Comment: The second question on the form printed in Your Witness 9 invited readers to state the county in which they lived, and our purpose in asking it was to permit the analysis of replies to other questions in just the way suggested by Professor Aitken. Sadly, though, barely half the respondents answered the question, and of those who were doctors only 40% did so. Whatever the reasons for this might be, it leaves us with insufficient data on which to draw any conclusions about regional variations in the charging rates of medical experts.

However, the information we do have for experts overall does not support Professor Aitken’s thesis. Thus on average charging rates for writing reports, and taking just those regions from which we received a substantial number of replies, the following picture emerges:

 

Number of replies

Rate per hour

South West England 38 91.21
Southern England 58 86.31
Greater London 35 86.34
East Anglia 31 86.50
Thames Valley 28 91.39
Severn Valley 27 87.07
Wales 40 97.01
Northern England 44 108.13

It would seem from this that experts in and around London charge the least for their reports, and that it is the experts who live furthest from the capital whose rates are highest. No doubt there are other factors in play here, such as differences in the mix of specialisms, which may account for these regional variations in average charging rates. Certainly, we shall want to explore the issue further when we next conduct a fees survey. In the meantime, we print elsewhere in this issue a further instalment of our analysis of the survey carried out last September.

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The information contained in Your Witness is supplied for general information purposes only and does not constitute professional advice. Neither J S Publications nor the authors accept responsibility for any loss that may arise from reliance on information contained herein. You should always consult a suitably qualified adviser on any specific problem or matter.
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