MoJ expert fees project
Ministry of Justice accepts the need for more research into what it pays for expert evidence in legally aided cases
The response of the UK Register of Expert Witnesses to Part 3 of the Ministry of Justice (MoJ) Consultation Paper 18/09 – Legal Aid: Funding Reforms – issued on 20 August 2009 drew together 1,076 contributions from more than 660 expert witnesses listed in the Register (see Your Witness 58). Ultimately, we concluded that the MoJ had not identified the inflationary drivers on expert witness fees and had failed to produce cost-saving proposals that were sufficiently targeted, or neutral in terms of supply and competition, as to be capable of being broadly accepted by expert witnesses.
The nature of the proposals left little doubt that the driving force behind the consultation paper was financial. We concluded that if these budgetary factors force the MoJ to adopt the proposals, then quality, competition and supply would all be adversely affected and would reduce access to justice for the most vulnerable in Society.
After a 3-month hiatus, the MoJ finally reported back in early March 2010. In its Response to Consultation, the MoJ said:
‘We received a good response to this consultation and we are pleased that so many knowledgeable respondents provided constructive input to our thinking. The majority of respondents were clearly against imposing either fixed fees or the suggested hourly rates on the basis of our current knowledge. There was a very strong message from all categories of professional expert witness that if inadequate remuneration rates are imposed, this would lead to more experienced practitioners refusing to undertake the work, potentially leading to access and quality problems across England and Wales.’
Accordingly, the MoJ has decided that it will:
- carry out a data gathering exercise to increase its understanding of the type of work experts undertake and what rates are currently paid
- set up a working group, including expert witness representative bodies and other interested stakeholders, to help analyse and validate the findings of this exercise – and work towards establishing fixed fees and hourly rates, where appropriate.
The MoJ data gathering exercise will involve the Legal Services Commission (LSC) undertaking a file review over a 2-month period starting in May 2010. To ensure that the information it collects is as comprehensive and representative as possible, they need a good number of legal aid solicitor practitioners to send them recently closed case files that include invoices for expenditure on expert witnesses. The Law Society of England and Wales has welcomed this development and has encouraged law firms to participate (Law Society web site Latest News, 17 May 2010).