Issue 12 July 1998
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.
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
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 UKs 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
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 Societys
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?
Fees charged by medical
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
One of the things asked for in our recent questionnaire
was an estimate of the percentage of the respondents
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
Table 1. Analysis of workload for medical experts
||Number of replies
of reports per year
of court appearances per year
|All specialist respondents
|All medical experts1
1Including eight dentists.
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 Governments
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
for report writing (average per hour)
for report writing (average per report)
for full day court appearances
|All specialist respondents
|All medical experts1
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
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
Table 3. Time spent preparing reports
for report writing (average per hour)1
for report writing (average per report)1
amount of time spent on a report1
|All medical experts2
1Of/by experts stating charges both by the
hour and per report.
2Including general practitioners.
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)
||Notice of <24
||Notice of 17
||Notice of 714
||Notice of 1428
|75% of fee
|50% of fee
|25% of fee
Other specialists (i.e. psychiatrists and consultant
physicians) (sample = 70)
||Notice of <24
||Notice of 17
||Notice of 714
||Notice of 1428
|75% of fee
|50% of fee
|25% of fee
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.
latest on legal aid reform
Pressing on regardless
The Lord Chancellors 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 Chancellors
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 Governments
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 Boards 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
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 Boards 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
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 clients 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.
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 2.112.13 of the draft protocol
relate to expert evidence, and they are, to say the least,
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
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
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!
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
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 Governments 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.
in criminal cases
Lord Chancellors 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
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
time (per hour)
court (per day)
|Consultant medical practitioner, psychiatrist, pathologist
|Fire assessor or explosives expert
|Forensic scientist (including questioned document
examiner), surveyor, accountant, engineer, medical
practitioner, architect, veterinary surgeon, meteorologist
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 LCDs 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.
of Expert Witnesses conference report
subject of the Societys 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
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 Societys representative were
united in their opposition to any such development. This
was entirely in accord with the Societys
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 Societys 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 Societys
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.
Letters to the
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 experts 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
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 experts 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.
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 solicitors 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 experts investigation
and report to assess the potential success of the clients
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-à-vis the court.
Such considerations do not apply to reports required
solely for the information of a clients 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
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 Birds
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
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
However, the information we do have for experts overall
does not support Professor Aitkens 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
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.